Introduction:

In the matter of Mohammad Abid & Ors. v. State of Rajasthan, reported as 2025 LiveLaw (Raj) 207, the Rajasthan High Court, through a detailed and scathing judgment delivered by Justice Farjand Ali, came down heavily on the misuse of preventive arrest powers under Section 170 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) by an Executive Magistrate. The Court held that preventive jurisdiction under this provision is limited in scope and cannot be treated as a parallel criminal proceeding or punitive action, especially when a substantive criminal case is already registered. The petitioners, who had been previously granted a civil court decree in their favour in relation to a property dispute, were arrested preventively under Section 170 BNSS, only to be released on bail with an unconstitutional and alien condition—submission of two character certificates, including one from a family member. When the petitioners failed to furnish such certificates, they were remanded to judicial custody, prompting them to file the present writ petition. The High Court castigated the Executive Magistrate’s conduct, stating that he acted more like a sovereign ruler than a constitutional officer bound by the rule of law, thus violating the petitioners’ fundamental rights. The Court not only set aside the impugned order but also directed the State to conduct departmental scrutiny and take corrective action.

Arguments by the Petitioners:

The petitioners, represented by Advocate Mr. Divik Mathur, approached the High Court aggrieved by what they described as arbitrary preventive arrest and subsequent judicial remand arising from their inability to comply with an unlawful bail condition imposed by the Executive Magistrate. They contended that Section 170 BNSS permits preventive arrest only under exceptional circumstances where there exists an imminent threat of a cognizable offence, and such arrest must not be employed as a regular administrative tool to settle civil disputes or bypass the regular criminal process. In their case, they argued, not only had no immediate threat or violence occurred, but the matter was purely civil in nature and already adjudicated in their favour by a civil court. Moreover, criminal proceedings had already been initiated in the form of two FIRs pertaining to the same incident, and therefore, there was no occasion to invoke Section 170 for parallel preventive detention. The petitioners further challenged the bail condition requiring character certificates, calling it an extralegal imposition completely unknown to preventive jurisprudence or any statute in force. They argued that denial of liberty for failing to meet such a whimsical condition amounted to a violation of Articles 14 and 21 of the Constitution of India. They asserted that their remand was orchestrated under the guise of non-compliance with a condition that was patently illegal and ultra vires. Hence, they prayed for the quashing of the Executive Magistrate’s order and sought strict action against the erring official.

Arguments by the Respondents:

The State, represented by Additional Advocate General Mr. Deepak Chaudhary and assisted by Mr. Sri Ram Choudhary along with Mr. Bansilal, RPS, ACP, Jodhpur Headquarters, defended the Executive Magistrate’s decision by invoking the statutory powers under Section 170 of BNSS. The respondents argued that the preventive arrest was necessitated by apprehensions of a potential breach of peace following a property dispute between the parties. They contended that Section 170 confers powers upon the police to act promptly in situations where cognizable offences may be committed, and as such, the Executive Magistrate acted well within his preventive jurisdiction. Regarding the character certificate condition, the respondents tried to portray it as a measure to ensure future good behaviour and community trust, given the history of animosity between the parties. They asserted that this condition was not punitive but precautionary. The State counsel argued that the petitioners were not denied bail but were asked to fulfill a simple condition aimed at maintaining peace. Moreover, the respondents denied any procedural lapse and maintained that the remand was lawful and justified, given the circumstances surrounding the dispute. Thus, they sought dismissal of the writ petition.

Court’s Judgment:

The Rajasthan High Court, while delivering its verdict, engaged in a detailed examination of the statutory purpose and constitutional limitations of Section 170 of the BNSS. Justice Farjand Ali made it unequivocally clear that preventive powers conferred under Section 170 are not intended to function as an alternative route to initiate criminal proceedings, nor are they meant to inflict punitive consequences in the absence of immediate danger. The Court noted that the Executive Magistrate had grossly exceeded his lawful authority by acting as if endowed with sovereign powers. In language that was both sharp and illustrative, the Court remarked, “Instead of acting in accordance with the limited preventive jurisdiction vested in him under BNSS, the Executive Magistrate 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 Court denounced this conduct as violative of the principle of rule of law and held that such arbitrariness undermines the very foundation of India’s constitutional system.

Importantly, the Court pointed out that once regular criminal proceedings were initiated through registration of FIRs, any further preventive action under Section 170 BNSS became redundant and constitutionally suspect. In the Court’s view, this amounted to double jeopardy in spirit if not in letter. This concurrent invocation of preventive and penal jurisdiction, especially where substantive criminal law already applies, amounted to harassment and misuse of statutory discretion. The Court emphasized that preventive law is fundamentally designed to avoid anticipated offences, not to retroactively punish individuals for civil disputes or act as a tool of coercion when civil law fails to satisfy one party.

The Court reserved its harshest criticism for the imposition of an extra-statutory bail condition requiring the petitioners to produce character certificates, one of which had to be from a close family member. Justice Farjand Ali was unequivocal in holding that this condition was neither sanctioned by any provision of BNSS nor recognised in preventive jurisprudence. He declared it as a “legislative overreach by an Executive Magistrate” and held it to be ultra vires, arbitrary, and capricious. The judgment termed such conditions as symptomatic of an authoritarian attitude, devoid of any legal foundation.

Concluding its judgment, the Court observed that the Executive Magistrate had deliberately and illegally used a technicality to incarcerate the petitioners. It ruled that their detention and remand were a gross abuse of preventive powers and that such conduct could not be justified under any legal provision. Consequently, the Court set aside the Magistrate’s order and directed the State Government to initiate a departmental enquiry into the Magistrate’s conduct. A compliance report was also ordered to be submitted within six months. Further, the Court directed that a copy of the judgment be sent to the Director General of Police and the Principal Secretary, Home Department, to ensure that such misuse does not recur in the future. By reinforcing the limited scope of preventive powers and holding public authorities accountable, the judgment stands as a robust reaffirmation of constitutional principles and individual liberty.