The court held that arrest or custodial bail proceedings under Section 170 CrPC are not mandatory at the filing of a charge-sheet if the accused were not arrested during the investigation. Trial courts should secure the presence of such accused through summons or bonds under Section 88 CrPC rather than issuing warrants.

REPORTABLE

1. 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 charge-sheet 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