Production Of Accused Before Magistrate U/S 170 CrPC Doesn't Mean Arrest Or Judicial Custody: Rajasthan High Court Quashes Bailable Warrants

Rajasthan High Court set aside the bailable warrants against accused in a forgery case, holding that once the investigating agency did not think it was proper to arrest the accused during investigation, issuance of bailable or non-bailable warrants should be done by the Court only where the accused was charged with henious crime or was likely to abscond or tamper with evidence. The bench of Justice Baljinder Singh Sandhu observed that the term “custody” under Section 170 CrPC (Cases to be sent to Magistrate when evidence is sufficient) does not mean that the accused has to be arrested first and sent to judicial custody. It only meant presentation of the accused before the Court.Section 170 CrPC requires police to forward an accused person to a magistrate if, upon investigation, they believe there is sufficient evidence to support a charge.“…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.”FIR was filed against the petitioner alleging amendments to the constitution of the society and their approval by the general body by fabrication of minutes of the meeting. Investigating agency never found it necessary to arrest the petitioners. The Court had also granted protection to the petitioners till filing of the challan. When the challan was filed against the petitioners, no cognizance was taken by the trial court. Since the petitioners did not appear on that day, the trial court issued bailable warrants against them, with a direction that the bail shall be considered only upon their appearance. This order was challenged. The petitioners argued that once the investigating agency itself did not found it necessary to arrest the petitioners, they should not have been taken into custody now after filing of charge sheet, only for consideration of bail. On the contrary, it was argued by the Public Prosecutor that since the petitioners did not appear before the Court at the time of filing of challan, they were required to file a bail application and it was within the court's discretion whether to consider it or not. After hearing the contentions, the Court highlighted that the order of the trial court reflected that it was passed only to secure the appearance of the petitioners which could have been achieved by issuing summons as well. The Court made reference to the Supreme Court case of Siddharth v State of Uttar Pradesh, in which it was held that Section 170, CrPC did not require arrest of every accused at the time of filing of the 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 “custody” under Section 170 CrPC does not necessarily mean police or judicial custody, but only presentation of the accused before the Court.”In this light, the Court opined that bailable or non-bailable warrants could not be issued without proper scrutiny of the facts and complete application of the mind. The Court stated that since in the present case, the offences alleged were not heinous; the investigation was already complete during which the petitioner were never arrested, and there was nothing to show that the petitioners were trying to avoid the process of law, there was no justification for taking the petitioners into custody only for considering their bail. Accordingly, the petition was allowed, and the bailable warrants against the petitioners were quashed. Title: Mohammad Atik & Ors. v State of Rajasthan & Anr. Citation: 2026 LiveLaw (Raj) 172Click Here To Read/Download Order

Production Of Accused Before Magistrate U/S 170 CrPC Doesn't Mean Arrest Or Judicial Custody: Rajasthan High Court Quashes Bailable Warrants

Nupur Agrawal

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