S.170 BNSS Confers 'Limited Preventive Jurisdiction' On Executive Magistrate, Can't Continue Incarceration Punitively: Rajasthan High Court

The Rajasthan High Court recently noted that Section 170 of the BNSS conferred “limited preventive jurisdiction” to the Executive Magistrate and that such preventive action was not a tool for punitive action or a substitute for criminal procedure.

Section 170 of BNSS empowers a police officer to arrest a person without a warrant if they have knowledge of a potential commission of cognisable offence and believe that the commission of offence cannot be otherwise prevented.

Justice Farjand Ali criticised the action of an Executive Magistrate in detaining persons and granting them bail on an extra-statutory condition of producing a character certificate. The court noted that instead of operating as a Magistrate under a Constitutional democracy, the Executive Magistrate had acted like a “Raja” dispensing justice at whim.

“It is evident that the Executive Magistrate, instead of acting in accordance with the limited preventive jurisdiction vested in him under B.N.S.S., 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 distinction between personal discretion and rule of law lies at the very foundation of our legal system, and the impugned conduct strikes at that very foundation,” the court noted.

The court also noted that once separate criminal cases were initiated against the persons, any custodial measure should have been taken at that time instead of subjecting them to parallel preventive proceedings under Section 170 of BNSS. In the court's opinion, such parallel proceeding amounted to double jeopardy.

“It is axiomatic that once a substantive criminal case had already been registered in relation to the alleged offence, any warranted arrest or custodial measure ought to have been taken therein.To subject the petitioners to parallel preventive proceedings under Section 170 B.N.S.S. amounts to a form of double jeopardy in spirit, if not in letter. 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. Preventive arrest is not a tool for punitive action nor a substitute for regular criminal procedure,” the court added.

The court was hearing a petition filed by the petitioners who were arrested under Section 170, BNSS, to maintain peace pursuant to an incident relating to a property dispute. Subsequently, two FIRs were also lodged against the petitioners in relation to the property. Furthermore, the petitioners also had a favourable decree of a civil court in relation to the property.

Pursuant to their arrest under Section 170, when they were presented before the Executive Magistrate, they were granted bail only on furnishing a bond along with two character certificates each, one from a close family member. When the condition could not be fulfilled by the petitioners, they were remanded to judicial custody. Hence the petition was filed.

The Court opined that in routine situations of breach of peace, especially where no immediate threat of violence was evident, the law permitted temporary preventive measures, and invocation of Section 170 was not an automatic necessity. Such discretionary resort to preventing powers in such overlapping fashion served no public interest and diluted the very rationale of separate preventive and penal frameworks.

In the present case, the court noted that the petitioners were first taken to custody under Section 170 on the pretext of preventive detention, an arbitrary condition of character certificate was imposed on them and when they failed to meet the condition, they were remanded to judicial custody. The court held that the entire action was a gross abuse of preventive provisions. The court added that the action was not only ultra vires but smacked of arbitrariness and caprice. The court noted that the petitioners in the present case were deliberately incarcerated by way of an illegal technicality.

The court also noted that the condition of character certificate, which was not found in any provision of law, was a legislative overreach and alien to preventive law jurisprudence.

Title: Mohammad Abid & Ors. v State of Rajasthan

Citation: 2025 LiveLaw (Raj) 207

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

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