Rajasthan High Court – Jodhpur
Mohammad Atik vs State Of Rajasthan (2026:Rj-Jd:18779) on 21 April, 2026
[2026:RJ-JD:18779]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous (Petition) No. 2009/2026
1. Mohammad Atik S/o Mohammad Umar, Aged About 70
Years, Resident Of Ashraf Manzil, Meri Get, Jodhpur City
East, Rajasthan
2. Mohammad Ali Chundrigar S/o Abdul Gani Sadar, Aged
About 62 Years, Former President, Marwar Muslim
Educational And Welfare Society, Jodhpur.
3. Nisar Ahmed Khilji S/o Abdul Rashid Khilji, Aged About 75
Years, Former General Secretary, Marwar Muslim
Educational And Welfare Society, Jodhpur.
4. Ataurrehman Qureshi S/o Abdul Aziz Qureshi, Aged About
46 Years, Former Treasurer, Marwar Muslim Educational
And Welfare Society, Jodhpur.
----Petitioners
Versus
1. State Of Rajasthan, Through Pp
2. Shoukat Ali S/o Mohammad Sadik, Aged About 64 Years,
R/o Laykan Mohala, Jodhpur City West, Rajasthan
----Respondents
For Petitioner(s) : 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 Respondent(s) : Mr. Ramesh Dewasi, PP
Mr. OP Mehta Assisted by
Mr. Jubin Ahmed
Mr. Hamendra Singh for
Mr. Moti Singh
HON'BLE MR. JUSTICE BALJINDER SINGH SANDHU
Order
21/04/2026
REPORTABLE
1. The present criminal miscellaneous petition has been filed
under Section 528 BNSS by the petitioners challenging the order
(Uploaded on 24/04/2026 at 12:55:20 PM)
(Downloaded on 25/04/2026 at 02:58:04 AM)
[2026:RJ-JD:18779] (2 of 10) [CRLMP-2009/2026]
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.
(Uploaded on 24/04/2026 at 12:55:20 PM)
(Downloaded on 25/04/2026 at 02:58:04 AM)
[2026:RJ-JD:18779] (3 of 10) [CRLMP-2009/2026]
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.
(Uploaded on 24/04/2026 at 12:55:20 PM)
(Downloaded on 25/04/2026 at 02:58:04 AM)
[2026:RJ-JD:18779] (4 of 10) [CRLMP-2009/2026]
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 the same was done
only for securing their appearance, which could have been
achieved by issuing summons as well. There is nothing on record
to show that the petitioners were likely to abscond, tamper with
evidence, or evade the process of law.
10. The Hon’ble Supreme Court in Siddharth vs. State of
Uttar Pradesh (supra) has clearly held that Section 170 CrPC
does not require arrest of every accused at the time of filing of
charge-sheet. If the Investigating Officer does not believe that the
accused will abscond or disobey summons, there is no
requirement to produce such accused in custody. The word
(Uploaded on 24/04/2026 at 12:55:20 PM)
(Downloaded on 25/04/2026 at 02:58:04 AM)
[2026:RJ-JD:18779] (5 of 10) [CRLMP-2009/2026]
“custody” under Section 170 CrPC does not necessarily mean
police or judicial custody, but only presentation of the accused
before the Court. The Hon’ble Apex Court observed as under :-
“9. We are in agreement with the aforesaid view of the
High Courts and would like to give our imprimatur to the
said judicial view. It has rightly been observed on
consideration of Section 170 CrPC that it does not impose
an obligation on the officer-in-charge to arrest each and
every accused at the time of filing of the charge-sheet. We
have, in fact, come across cases where the accused has
cooperated with the investigation throughout and yet on
the charge-sheet being filed non-bailable warrants have
been issued for his production premised on the
requirement that there is an obligation to arrest the
accused and produce him before the court. We are of the
view that if the investigating officer does not believe that
the accused will abscond or disobey summons he/she is
not required to be produced in custody. The word
“custody” appearing in Section 170 CrPC does not
contemplate either police or judicial custody but it merely
connotes the presentation of the accused by the
investigating officer before the court while filing the
charge-sheet.
10. We may note that personal liberty is an important
aspect of our constitutional mandate. The occasion to
arrest an accused during investigation arises when
custodial investigation becomes necessary or it is a heinous
crime or where there is a possibility of influencing the
witnesses or accused may abscond. Merely because an
arrest can be made because it is lawful does not mandate
that arrest must be made. A distinction must be made
between the existence of the power to arrest and the
justification for exercise of it 30. If arrest is made routine,
it can cause incalculable harm to the reputation and self-
esteem of a person. If the investigating officer has no
reason to believe that the accused will abscond or disobey
summons and has, in fact, throughout cooperated with the
investigation we fail to appreciate why there should be a
compulsion on the officer to arrest the accused.”
11. The same principle was reiterated by the Hon’ble Supreme
Court in Satender Kumar Antil vs. CBI (supra), wherein it was
held that where the prosecution does not require custody of the
accused, there is no need for arrest when the case is sent to the
Magistrate under Section 170 CrPC. It was further held that even
filing of a bail application may not be necessary in such cases and
the Court can secure the presence of the accused by taking bonds
(Uploaded on 24/04/2026 at 12:55:20 PM)
(Downloaded on 25/04/2026 at 02:58:04 AM)
[2026:RJ-JD:18779] (6 of 10) [CRLMP-2009/2026]
under Section 88 CrPC. The Hon’ble Apex Court observed as
under:-
“43. The scope and ambit of Section 170 has already been
dealt with by this Court in Siddharth v. State of U.P.,
(2021) 1 SCC 676. This is a power which is to be exercised
by the court after the completion of the investigation by
the agency concerned. Therefore, this is a procedural
compliance from the point of view of the court alone, and
thus the investigating agency has got a limited role to play.
In a case where the prosecution does not require custody
of the accused, there is no need for an arrest when a case
is sent to the magistrate under Section 170 of the Code.
There is not even a need for filing a bail application, as the
accused is merely forwarded to the court for the framing of
charges and issuance of process for trial. If the court is of
the view that there is no need for any remand, then the
court can fall back upon Section 88 of the Code and
complete the formalities required to secure the presence of
the accused for the commencement of the trial. Of course,
there may be a situation where a remand may be required,
it is only in such cases that the accused will have to be
heard. Therefore, in such a situation, an opportunity will
have to be given to the accused persons, if the court is of
the prima facie view that the remand would be required.
We make it clear that we have not said anything on the
cases in which the accused persons are already in custody,
for which, the bail application has to be decided on its own
merits. Suffice it to state that for due compliance of
Section 170 of the Code, there is no need for filing of a bail
application.”
12. The Hon’ble Apex Court laid down detailed directions for the
Investigating Agency and also for the courts pertaining to the
arrest of a person in Para No.100, the relevant conditions are
reproduced as under :-
(Uploaded on 24/04/2026 at 12:55:20 PM)
(Downloaded on 25/04/2026 at 02:58:04 AM)
[2026:RJ-JD:18779] (7 of 10) [CRLMP-2009/2026]“100.5. There need not be any insistence of a bail application
while considering the application under Sections 88, 170, 204 and
209 of the Code.
100.6. There needs to be a strict compliance of the mandate laid
down in the judgment of this court in Siddharth.”
13. The Hon’ble Supreme Court in Inder Mohan Goswami vs.
State of Uttaranchal (supra) has also held that bailable and
non-bailable warrants should not be issued casually or
mechanically. If summons are sufficient for securing the presence
of the accused, issuance of warrants should be avoided. Personal
liberty must be protected and warrants should be issued only after
proper application of mind.. The Hon’ble Apex Court observed as
under :-
“54. As far as possible, if the court is of the opinion that a
summon will suffice in getting the appearance of the accused in
the court, the summon or the bailable warrants should be
preferred. The warrants either bailable or non-bailable should
never be issued without proper scrutiny of facts and complete
application of mind, due to the extremely serious consequences
and ramifications which ensue on issuance of warrants. The
court must very carefully examine whether the Criminal
Complaint or FIR has not been filed with an oblique motive.
55. In complaint cases, at the first instance, the court should
direct serving of the summons along with the copy of the
complaint. If the accused seem to be avoiding the summons,
the court, in the second instance should issue bailable –
warrant. In the third instance, when the court is fully satisfied
that the accused is avoiding the court’s proceedings
intentionally, the process of issuance of the non-bailable
warrants should be resorted to. Personal liberty is paramount,
therefore, we caution courts at the first and second instance to
refrain from issuing non-bailable warrants.
56. The power being discretionary must be exercised
judiciously with extreme care and caution. The court should(Uploaded on 24/04/2026 at 12:55:20 PM)
(Downloaded on 25/04/2026 at 02:58:04 AM)
[2026:RJ-JD:18779] (8 of 10) [CRLMP-2009/2026]properly balance both personal liberty and societal interest
before issuing warrants. There cannot be any straight-jacket
formula for issuance of warrants but as a general rule, unless
an accused is charged with the commission of an offence of a
heinous crime and it is feared that he is likely to tamper or
destroy the evidence or is likely to evade the process of law,
issuance of non-bailable warrants should be avoided.”
14. Hence, in view of the law laid down by the Hon’ble Apex
Court, the bailable or non-bailable warrants cannot be issued
without proper scrutiny of facts and complete application of mind.
Once the Investigating Agency did not think it proper to arrest the
accused and take them in custody, the issuance of bailable or non
bailable warrants should be resorted to by the Court only where
the accused are charged with heinous crime and there is a clear
likelihood of absconding, tampering with evidence, or evading the
process of law.
15. In the present case, the offences alleged against the
petitioners are not heinous in nature. The investigation is already
complete and is mainly based on documentary evidence. The
petitioners were never arrested during investigation and this Court
had already granted protection to the petitioners until filing of the
charge-sheet. There is nothing to show that they are avoiding the
process of law. Rather, they are ready and willing to appear before
the learned trial Court and participate in the trial.
16. In such circumstances, there is no justification for taking the
petitioners into custody only for consideration of bail. Once the
Investigating Agency itself did not require their custody, the
(Uploaded on 24/04/2026 at 12:55:20 PM)
(Downloaded on 25/04/2026 at 02:58:04 AM)
[2026:RJ-JD:18779] (9 of 10) [CRLMP-2009/2026]
learned trial Court ought not to insist upon custody merely for
acceptance of bail bonds.
17. The legal position is clear that the expression “custody”
under Section 170 CrPC does not mean that the accused must first
be arrested and sent to judicial custody. It only means
presentation of the accused before the Court. The Hon’ble Apex
Court has clearly held that if the Investigating Officer does not
believe that the accused will abscond or disobey summons, the
accused need not be produced in custody. In fact for due
compliance of Section 170 of the Code, there is no need to file a
bail application as the accused are forwarded to the court for
framing of the charges and issuance of the process for trial. In
such circumstances, learned trial Court is only to secure the
presence of the accused in the trial, which may be secured by
executing a bond, with or without sureties. Therefore, where
arrest was never required during investigation, the accused should
not be sent to custody after filing of the charge-sheet only for
formal consideration of bail.
18. In view of the above facts and the law laid down by the
Hon’ble Supreme Court, this Court is of the opinion that the order
dated 19.02.2026 requires interference to the limited extent
indicated herein.
19. Accordingly, the present criminal miscellaneous petition is
allowed. The order dated 19.02.2026 passed by the learned Chief
Judicial Magistrate, Jodhpur Metropolitan to the extent of the
issuance of bailable warrants is hereby quashed & set aside. The
(Uploaded on 24/04/2026 at 12:55:20 PM)
(Downloaded on 25/04/2026 at 02:58:04 AM)
[2026:RJ-JD:18779] (10 of 10) [CRLMP-2009/2026]
petitioners are directed to appear before the learned trial court on
the next date. The learned trial court is directed to accept
Personal Bonds/ Surety Bonds of the petitioners to its satisfaction
for securing their presence during trial. However, the petitioners
shall remain bound by the conditions imposed by the learned trial
Court.
All pending application(s), if any, stands disposed of.
(BALJINDER SINGH SANDHU),J
11-Jatin/-
(Uploaded on 24/04/2026 at 12:55:20 PM)
(Downloaded on 25/04/2026 at 02:58:04 AM)
Powered by TCPDF (www.tcpdf.org)
