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RAJASTHAN HIGH COURT
Baljinder Singh Sandhu, J.
Mohammad Atik and Ors. – Petitioners
versus
State of Rajasthan, Thr. PP and Anr. – Respondents
S.B. Criminal Miscellaneous (Petition)
No.2009 of 2026
Decided on 21.4.2026
Counsel for the Parties:
For the Petitioner: Mr. Manish Singhvi, Sr. Adv. Through VC assisted by Mr. Wasim Khan, Mr. Monish Khan, through VC, Mr. Firoz Khan, Mr. Ansarul Hak Mansuri
For the Respondent: Mr. Ramesh Dewasi, PP, Mr. OP Mehta assisted by Mr. Jubin Ahmed, Mr. Hamendra Singh for Mr. Moti Singh
IMPORTANT POINTS
(1) Arrest – Merely because arrest can be made because it is lawful does not mandate that arrest must be made.
(2) Custody – Word “custody” under Section 170 CrPC does not necessarily mean Police or judicial custody, but only presentation of accused before Court.
Headnote:
Criminal Procedure Code, 1973 – Sections 170 and 88 – Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528 – Arrest of accused – Section 170 Cr.P.C. does not require arrest of every accused at the time of filing of charge-sheet – If Investigating Officer does not believe that accused will abscond or disobey summons, there is no requirement to produce such accused in custody – Word “custody” under Section 170 Cr.P.C. does not necessarily mean Police or judicial custody, but only presentation of accused before Court – In present case, offences alleged against petitioners are not heinous in nature – Investigation is already complete and is mainly based on documentary evidence – As such, there is no justification for taking petitioners into custody only for consideration of bail – Issuance of bailable warrants quashed and set aside. (Paras 10, 11, 15, 16, 17 and 19)
Result: Criminal Miscellaneous Petition allowed.
ORDER
The present criminal miscellaneous petition has been filed under Section 528 BNSS by the petitioners challenging the order dated 19.02.2026 passed by the learned Chief Judicial Magistrate, Jodhpur Metropolitan in connection with FIR No.84/2022, whereby bailable warrants were issued against the petitioners and it was observed that their entitlement for bail would be considered upon their appearance.
2. Learned counsel for the petitioners submitted that the learned trial Court without taking cognizance has directly proceeded to the stage of issuing process and has issued bailable warrants without application of mind and properly considering the nature of the case. It is submitted that the dispute mainly relates to the management committee of the society and the allegations are regarding manipulating the constitution to conceal the financial irregularities and fabrication of the minutes of the meeting. It is further submitted that civil litigation regarding the alleged amendment is already pending before the competent civil court.
3. It is also submitted that earlier a negative final report was proposed during investigation, however, subsequently a chargesheet has been filed. The entire case is based on documentary evidence and investigation is already complete. This Court had also granted protection to the petitioners against arrest till filing of the challan in S.B. Criminal Misc. Petition No.30/2025. In view of the observations made by the learned trial Court regarding bail, the petitioners apprehend that they may be taken into custody without sufficient cause.
4. It is argued that once the Investigating Agency itself did not find it necessary to arrest the petitioners, they should not now be taken into custody only for consideration of bail after filing of the charge-sheet. It is submitted that under Section 170 CrPC, there is no requirement that the accused must be arrested before being produced before the Magistrate. Reliance has been placed upon the judgments of the Hon’ble Supreme Court in Siddharth vs. State of Uttar Pradesh & Anr., reported in (2022) 1 SCC 676 and Satender Kumar Antil vs. CBI, reported in (2022) 10 SCC 51.
5. It is further submitted that even issuance of bailable warrants at the first instance was not justified in view of the judgment of the Hon’ble Supreme Court in Inder Mohan Goswami & Another vs. State of Uttaranchal & Others, reported in AIR 2008 SC 251. It is therefore prayed that the learned trial Court be directed to accept the bail bonds of the petitioners, which they are ready and willing to furnish, without taking them into custody.
6. Learned Public Prosecutor as well as learned counsel for the complainant opposed the prayer made by the petitioners. It is submitted that since the petitioners did not appear before the Court at the time of filing of the challan, they are required to file a bail application and it is within the discretion of the learned trial Court to consider the same. It is also submitted that no adverse order has yet been passed against the petitioners.
7. Heard learned counsel for the parties and perused the material available on record.
8. The FIR in the present case relates to the amendments made in the constitution of the society and their approval by the general body by fabricating the minutes of the meeting. Allegations have been made regarding cheating and forgery of records. After detailed investigation, the charge-sheet has been filed. During the entire investigation, the Investigating Agency did not find it necessary to arrest the petitioners and their custody was never required. This Court had also granted protection to the petitioners till filing of the challan.
9. The challan was filed against the petitioners but however no cognizance in the matter has been taken and since the petitioners did not appear on that day the bailable warrants have been issued and the learned Magistrate has directed to consider the bail thereafter. However, the order reflects that
