Bailable warrants cannot be issued merely to secure bail if accused was never arrested during probe: Rajasthan HC

Jodhpur: The Rajasthan High Court has ruled that a trial court cannot issue bailable warrants merely to take an accused into custody for bail formalities. This is especially so when the investigating agency itself never required the accused’s arrest during the probe. Justice Baljinder Singh Sandhu delivered the ruling on 21 April 2026 in a petition by four former office-bearers of the Marwar Muslim Educational and Welfare Society, Jodhpur.

The petitioners — Mohammad Atik, Mohammad Ali Chundrigar, Nisar Ahmed Khilji, and Ataurrehman Qureshi — are former office-bearers of the Marwar Muslim Educational and Welfare Society, Jodhpur. FIR No. 84/2022 was registered against them for allegedly manipulating the society’s constitution to conceal financial irregularities and fabricating minutes of a general body meeting.

The police initially proposed a negative final report but later filed a chargesheet. The agency did not arrest the petitioners at any stage of the investigation. The High Court had also granted them protection from arrest until the chargesheet was filed.

On 19 February 2026, the Chief Judicial Magistrate, Jodhpur Metropolitan, issued bailable warrants against the petitioners without first taking cognizance. The Magistrate also observed that their bail would be considered only after they appeared. The petitioners challenged that order before the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. That provision preserves the High Court’s inherent powers to prevent abuse of process.

Senior Advocate Manish Singhvi, appearing for the petitioners, submitted that the trial court had mechanically issued warrants without applying its mind. The dispute was essentially about society management and was already the subject of pending civil litigation. The case rested on documentary evidence, and investigation was complete.

He relied on Section 170 of the Code of Criminal Procedure — the provision under which a chargesheeted accused is forwarded to the Magistrate. He pointed out that Section 170 does not require the accused to first be arrested. He also cited the Supreme Court rulings in Siddharth vs. State of Uttar Pradesh, Satender Kumar Antil vs. CBI, and Inder Mohan Goswami vs. State of Uttaranchal.

Public Prosecutor Ramesh Dewasi and Advocate OP Mehta, appearing for the complainant Shoukat Ali, opposed the petition. They submitted that since the petitioners did not appear when the chargesheet was filed, they must file a regular bail application. The trial court, they argued, had the discretion to consider that plea on merits and no adverse order had yet been passed.

The Court first noted that the offences were not heinous, the case rested mainly on documents, and the petitioners had never been arrested during the probe. Nothing on record suggested that they were likely to abscond, tamper with evidence, or evade trial.

The Court then examined the meaning of “custody” under Section 170 CrPC — the stage at which an investigating officer forwards the chargesheet with the accused to the Magistrate. Relying on Siddharth vs. State of Uttar Pradesh, (2022) 1 SCC 676, it held that “custody” at this stage does not mean police or judicial custody. It simply means presentation of the accused before the court.

Quoting the Supreme Court in Siddharth, the Court noted: “Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.” In plain terms, even if the statute permits arrest, the trial court must independently examine whether custody is actually required. Routine arrests, the Apex Court had cautioned, can cause “incalculable harm” to a person’s reputation.

The Court next relied on Satender Kumar Antil vs. CBI, (2022) 10 SCC 51. The Supreme Court there held that when the prosecution does not need custody, no arrest is required at the chargesheet stage. A bail application may not even be necessary. The trial court can secure the accused’s presence by taking bonds under Section 88 CrPC, which allows a Magistrate to accept personal or surety bonds.

The Court also invoked Inder Mohan Goswami vs. State of Uttaranchal, AIR 2008 SC 251. The Supreme Court there warned that warrants must never be issued without “proper scrutiny of facts and complete application of mind”. The first step should ordinarily be a summons. A bailable warrant follows only if the accused avoids summons, and a non-bailable warrant only when there is clear evasion.

Applying these principles, Justice Sandhu held that the trial court could have secured the petitioners’ appearance by summons alone. Issuing bailable warrants and linking bail to surrender into custody was unwarranted when the police had never sought custody during investigation.

The Court allowed the petition. The order of 19 February 2026, to the extent it issued bailable warrants, was quashed and set aside. The petitioners were directed to appear before the trial court on the next date. The trial court was directed to accept personal or surety bonds for their presence during trial. The petitioners remain bound by any conditions the trial court imposes.

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