Trial courts should not insist on arrest or bail applications when investigative agencies did not require custody.

The petitioners, former office-bearers of the Marwar Muslim Educational and Welfare Society, were accused of cheating and forging society minutes to conceal financial irregularities in FIR No. 84/2022.

Although the Investigating Agency initially proposed a negative report, a charge-sheet was eventually filed.

Throughout the investigation, the petitioners cooperated, were never arrested, and were protected by a High Court order until the filing of the challan.

Upon filing the charge-sheet, the Chief Judicial Magistrate, Jodhpur Metropolitan, without officially taking cognizance, issued bailable warrants against the petitioners on 19.02.2026, observing that bail would only be considered upon their physical appearance.

The petitioners challenged this order under Section 528 BNSS (formerly Section 482 CrPC), fearing unnecessary custodial detention.

1. Whether the trial court was justified in issuing bailable warrants and insisting on a bail application/custody when the accused were not arrested during investigation and cooperated throughout.

2. Whether the term "custody" under Section 170 CrPC (now Section 190 BNSS) necessitates physical arrest or judicial remand at the stage of filing a charge-sheet.

The Court applied Section 170 of the CrPC (corresponding to Section 190 BNSS), which governs the production of an accused before a Magistrate upon completion of an investigation.

It relied heavily on the precedent in Siddharth v. State of Uttar Pradesh (2022), which held that Section 170 does not impose an obligation to arrest every accused at the time of filing a charge-sheet if they have cooperated and are unlikely to abscond.

Furthermore, it applied Satender Kumar Antil v. CBI (2022), establishing that if the prosecution does not require custody, the court should secure presence via Section 88 CrPC bonds rather than arrest or formal bail applications.

Finally, it cited Inder Mohan Goswami v. State of Uttaranchal (2008), which cautions that warrants—bailable or non-bailable—should not be issued mechanically where summons suffice.

The Court reasoned that since the offences were not heinous and the case relied primarily on documentary evidence, there was no justification for coercive process.

It observed that the trial court's issuance of bailable warrants was a mechanical exercise of power that ignored the fact that the Investigating Agency itself never found arrest necessary.

The Court clarified that "custody" in the context of Section 170 CrPC merely signifies the "presentation" of the accused before the court and does not mandate police or judicial remand.

Since the petitioners demonstrated a willingness to appear and participate in the trial, the trial court erred by requiring them to be taken into custody for the sole purpose of considering a bail application, which contradicts the mandate in Satender Kumar Antil.

The Court held that when an accused has not been arrested during investigation and is not a flight risk, the trial court should not insist on custody or formal bail applications but should instead secure attendance through personal or surety bonds under Section 88 CrPC.

The petitioners were directed to appear before the trial court, which was ordered to accept their bonds to its satisfaction without taking them into custody.