The Rajasthan High Court recently ruled that Section 170 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) grants only limited preventive jurisdiction to Executive Magistrates and cannot be used as a tool for punishment or parallel criminal procedure.
The case arose when the petitioners were arrested under Section 170 BNSS after a property-related incident. Although they had a favourable civil court decree, two FIRs were also registered against them. The Executive Magistrate granted them bail only after they produced two character certificates, including one from a family member. When they failed to comply, they were sent to judicial custody.
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“It is evident that the Executive Magistrate, instead of acting in accordance with the limited preventive jurisdiction vested in him under BNSS, has arrogated to himself an authority akin to that of a sovereign — operating not as a magistrate under a constitutional democracy, but more as a Raja dispensing justice at whim,” the High Court remarked.
Justice Farjand Ali observed that such action violated the fundamental principle of the rule of law. The Court emphasised that once a criminal case is registered, further preventive detention under Section 170 amounts to double jeopardy in spirit, if not in letter.
“To subject the petitioners to parallel preventive proceedings under Section 170 BNSS amounts to a form of double jeopardy... This dual action — one under criminal law and another under preventive jurisdiction — not only causes undue harassment but also reflects a misuse of statutory discretion,” the Court added.
The Court strongly criticised the Executive Magistrate’s demand for a character certificate as a bail condition. It found no legal basis for such a requirement and declared it an overreach of statutory power. According to the Court, this demand was not only illegal but also arbitrary and contrary to the preventive law framework.
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The petitioners’ custody was held to be illegal, and the bail condition was called unjustified and unconstitutional. The Court set aside the Executive Magistrate’s order and directed the State to conduct a departmental inquiry. A compliance report must be submitted within six months. Copies of the order were also sent to the Director General of Police and the Principal Secretary (Home Department) for necessary action.
“Preventive arrest is not a tool for punitive action nor a substitute for regular criminal procedure,”
the Court underlined, warning against the misuse of preventive powers in civil disputes or when no immediate threat exists.
Title: Mohammad Abid & Ors. v State of Rajasthan
For Petitioner(s): Mr. Divik Mathur
For Respondent(s): Mr. Deepak Chaudhary, AAG assisted by Mr. Sri Ram Choudhary Mr. Bansilal, RPS, ACP Headquarter Jodhpur
