[2026:RJ-JD:9367]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Writ Petition No. 745/2026

1. Uda Ram S/o Harda Ram, Aged About 47 Years, R/o Maghani Maghwalon Ki Dhani Barmer Rajasthan

2. Moti Ram S/o Harda Ram, Aged About 44 Years, R/o Maghani Maghwalon Ki Dhani Barmer Rajasthan ----Petitioners Versus State Of Rajasthan, Through Pp ----Respondent For Petitioner(s) : Mr. Sanjay Bishnoi Mr. Vikas Bishnoi Mr. Swapan Chouhan For Respondent(s) : Mr. NS Chandawat, PP HON'BLE MR. JUSTICE FARJAND ALI

Order

19/02/2026

1. The instant Criminal Writ Petition under Article 226 of the Constitution of India has been instituted by the petitioners, being aggrieved by the order dated 26.11.2025 passed by the learned Sub-Divisional Magistrate, whereby the petitioners were subjected to illegal detention for a period of five days.

2. The brief facts of the case are that proceedings under Sections 126 and 170 BNSS were initiated against the petitioners by Police Station Gudamalani, District Barmer, pursuant to an alleged quarrel reported on 25.11.2025. The petitioners were arrested on the apprehension of breach of peace and produced before the SDM, Gudamalani on 26.11.2025. Though bail bonds were furnished as directed, the same were withheld for verification, and in absence of the report, the petitioners were remanded to judicial custody till 28.11.2025. Upon receipt of the verification report, bail was accepted and release orders were issued, and the petitioners were released on 29.11.2025.

2.1 The petitioners contend that their detention from 26.11.2025 to 29.11.2025 was wholly arbitrary and illegal. It is further alleged that the SDM acted in abuse of process by attempting to compel admission of charges despite a categorical intention to contest the same.

3. This Court has already dealt with the similar issues in the case of Mohammad Abid and Ors. v. State of Rajasthan (S.B. Criminal Misc. (Pet.) No. 2235/2025. For ready reference, the relevant paragraphs of the judgment are reproduced herein below:-

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.N.S.S. amounts to a form of double jeopardy in spirit, if not in letter. This dual action — one under criminal law and another under preventive jurisdiction — not only causes undue harassment but also reflects a misuse of statutory discretion. Preventive arrest is not a tool for punitive action nor a substitute for regular criminal procedure.

8.