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2025 Supreme(Online)(Raj) 11429
HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
FARJAND ALI
MOHAMMAD ABID – Appellant
Versus
STATE OF RAJASTHAN – Respondent
CRLMP / 2235 / 2025
For the Appellants/Petitioners: Divik Mathur
For the Respondents: Deepak Chaudhary, Sri Ram Choudhary
Preventive detention jurisdiction serves to forestall future breaches of peace and is not meant to be punitive. Executive magistrates exercising quasi-judicial powers cannot impose extralegal conditions for release, nor can they use preventive measures as a substitute for criminal procedure or to facilitate harassment.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 126, 130, 170 - Code of Criminal Procedure - Section 482 - Constitution of India - Article 21 - Preventive detention - Extralegal conditions for release - Mandate for judicial application of mind - Preventive proceedings cannot be used as a substitute for regular criminal process or for punitive purposes. (Paras 7, 8, 11)
(B) Executive Powers - Preventive jurisdiction - Limitation on discretionary power - Imposition of conditions such as character certificates not sanctioned by law is ultra vires and invalid. (Paras 11, 14)
(C) Quasi-judicial function - Duty of magistrate - Requirement to exercise independent adjudication rather than acting as a rubber stamp for law enforcement—Constitutional guarantee of personal liberty overrides mechanical application of preventive detention. (Paras 5, 10, 12, 16)
Facts of the case:
Preventive proceedings were initiated against the petitioners under the relevant provisions of the law concerning a property dispute while substantive criminal cases were already registered. During bail proceedings, the executive magistrate imposed arbitrary conditions requiring the submission of character certificates, including one from a family member, for the release of the individuals. Non-fulfillment of these extralegal conditions resulted in prolonged custodial remand.
Findings of Court:
The court held that the simultaneous invocation of preventive and penal proceedings for the same incident constitutes a misuse of statutory discretion. The requirement for character certificates is not supported by any legal provision and represents an impermissible expansion of executive authority. The magistrate failed to apply an independent judicial mind, treating the preventive framework as a punitive tool, which is incompatible with constitutional principles.
Issues: The main issues were the legality of initiating preventive detention alongside active criminal proceedings and the validity of imposing extralegal conditions for bail in preventive jurisdiction.
Ratio Decidendi: Preventive detention aims to forestall potential threats to public order and is not intended to be punitive. Any condition for bail that is not prescribed by legislation is ultra vires. The executive must act with judicial neutrality, and the mechanical deprivation of liberty without justifiable, imminent threat is a violation of fundamental rights.
Result: Petition allowed; impugned orders and all consequential proceedings quashed.
Reportable
BY THE COURT:-
1. By way of filing this instant Criminal Miscellaneous Petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 read with Section 482 Cr.P.C., the petitioners have approached this Court seeking quashing of the order dated 13.03.2025 passed by the learned Assistant Commissioner of Police & Executive Magistrate, Police Commissionerate, Jodhpur, whereby the petitioners were directed to be released on bail in proceedings under Sections 126, 170, and 130 of the BNSS, 2023, only upon furnishing a bond of Rs. 50,000/- each along with a character certificate to be produced by two sureties, one of whom must be a close family member.
2. Brief Facts of the Case:
The present petition arises out of proceedings initiated under Sections 126, 170, and 130 of the Bharatiya Nagarik Suraksha Sanhita, 2023, against the petitioners, pursuant to an incident dated 12.03.2025 involving a property dispute at "Chandra Radhe Sweet Home", Jodhpur. It is alleged that the petitioners, claiming tenancy rights under a registered rent agreement dated 03.01.2025 with the shop owner Subhash Sharma, attempted to assert possession over the premises, which was allegedly encroached upon by third parties. This led to a police intervention based on information received about a public disturbance, resulting in the petitioners' arrest under Section 170 BNSS to maintain public peace. Two FIRs, bearing Nos. 55/2025 and 56/2025, were lodged by rival claimants of the property on identical facts. Meanwhile, a civil suit concerning the tenancy was already pending before the Rent Tribunal, Jodhpur, wherein an order dated 25.02.2025 had been passed in favour of the petitioners permitting peaceful possession. Subsequently, when the petitioners were presented before the Executive Magistrate, they were compelled to admit guilt in order to secure their release. Vide order dated 13.03.2025, were directed to maintain peace for six months and were granted bail only on furnishing a bond of Rs. 50,000 each along with two character certificates, one of which was to be provided by a close family member. The petitioners are aggrieved by this condition, terming it arbitrary and legally unsustainable, which has led to their continued detention.
3. Heard learned counsels present for the parties and gone through the materials available on record.
4. Having considered the facts and circumstances in entirety, this Court is compelled to observe that the conduct of the concerned Executive Magistrate (ACP, Headquarters) and the associated police officials reflects a distressing departure from the principles of fairness, legality, and procedural propriety that underlie the concept of rule of law.
5. It is evident that the Executive Magistrate, instead of acting in accordance with the limited preventive jurisdiction vested in him under B.N.S.S., has arrogated to himself an authority akin to that of a sovereign — operating not as a magistrate under a constitutional democracy, but more as a Raja dispensing justice at whim. The distinction between personal discretion and rule of law lies at the very foundation of our legal system, and the impugned conduct strikes at that very foundation.
6. This Court has no hesitation in recording that the SHO and the Executive Magistrate appear to have acted in tandem, with the latter functioning virtually under dictation. A separate criminal case had already been instituted on 12.03.2025 against the petitioners — if their arrest was truly warranted, it ought to have occurred in that case. There was no occasion to invoke Section 170 B.N.S.S. simultaneously unless the true object was not maintenance of peace but continuation of incarceration.
7. It is axiomatic that once a substantive criminal case had already been registered in relation to the alleged offence, any warranted arrest or custodial measure ought to have been taken therein. To subject the petitioners to parallel preventive proceedings under Section 170 B
