Mohammad Atik vs State Of Rajasthan (2026:Rj-Jd:18779) on 21 April, 2026

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    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

    SPONSORED

    REPORTABLE

    1. The present criminal miscellaneous petition has been filed

    under Section 528 BNSS by the petitioners challenging the order

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    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.

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    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.

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    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

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    “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

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    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 :-

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    “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

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    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

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    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

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    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/-

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