[Cites 6, Cited by 0]
Rajasthan High Court - Jodhpur
Mahendra Singh vs State Of Rajasthan on 28 March, 2026
[2026:RJ-JD:14220]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1130/2026
Mahendra Singh S/o Shri Bhanwar Singh, Aged About 38 Years,
Mandali, P.s. Sadar Pali, District Pali, Rajasthan.
----Petitioner
Versus
State Of Rajasthan, Through Public Prosecutor.
----Respondent
For Petitioner(s) : Mr. Ramdev Rajpurohit
For Respondent(s) : Mr. V.S. Rajpurohit, PP
HON'BLE MR. JUSTICE BALJINDER SINGH SANDHU
Order
1. Date of Conclusion of Arguments 19.02.2026
2. Date on which Judgment was Reserved 19.02.2026
3. Whether the full Judgment or only the Operative part
Operative part was pronounced
4. Date of pronouncement 28.03.2026
The present criminal misc. petition has been filed under
Section 528 BNSS by the petitioner aggrieved against the order
dated 19.05.2025 passed by the learned Executive Magistrate
and Tehsildar, Pali under Section 129 BNSS directing the
petitioner to execute a bond for maintaining peace for a period of
12 months.
The brief facts of the case are that proceedings were
initiated on a complaint filed by the then S.H.O., under Section
129 BNSS alleging that the petitioner is a habitual offender and
that preventive action was necessary to maintain public peace
within the district. The learned Trial Court, relying upon the
report and antecedents placed on record, passed the impugned
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order dated 19.05.2025. The petitioner being aggrieved by the
said order, has approached this Court challenging its legality and
propriety.
Learned counsel for the petitioner submits that complaint
under Section 129 BNSS has been filed by the agency out of
malice and without placing proper and complete information
before the learned trial court. Counsel further submits that
though a list of antecedents was produced, the petitioner has
been acquitted in almost all the cases and only one case is stated
to be pending against him. Despite this, the learned trial court
has arbitrarily treated the petitioner as a habitual offender and
passed the impugned order.
On behalf of State, a formal reply to the petition is
submitted as well as a detailed report dated 20.02.2026 is placed
on record for consideration before the Court which was sent by
SHO, Police Station, Sadar Pali District Pali. In order to justify
initiation of proceeding under Section 129 BNSS, SHO has made
an endeavour to highlight the conduct of the petitioner and his
alleged criminal activities to label him as a habitual offender.
Heard learned counsel for the petitioner as well as learned
Public Prosecutor and perused the material available on record.
The details about the cases registered against the
petitioner, and the outcome/status of these cases is incorporated
in the report filed by the State which reads as under:-
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[2026:RJ-JD:14220] (3 of 7) [CRLMP-1130/2026]
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1 376@08- 16@54 vkcdkjh vf/ dksrokyh ikyh 275@31-08-05 CJM Court fnukad
08-05 k- PALI 05-02-
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2 377@08- 16@54 vkcdkjh vf/ dksrokyh ikyh 273@29-08-05 CJM Court fnukad
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3 378@08- 16@54 vkcdkjh vf/ dksrokyh ikyh 261@18-08-05 CJM Court fnukad
08-05 k- PALI 05-02-
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4 383@09- 16@54 vkcdkjh vf/ dksrokyh ikyh 278@31-08-05 CJM Court fnukad
08-05 k- PALI 20-05-
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5 411@26- 451]323 Hkknl dksrokyh ikyh 283@31-08-05 MJM Court fnukad
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6 516@17- 143]341]323 Hkknl dksrokyh ikyh 424@21-12-06 CJM Court fnukad
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9 293@20- 143]327]341]323 dksrokyh ikyh FR83@20-06- CJM Court LohÑr
06-07 Hkknl 07 PALI fnukad
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10 90@05-03- 341]323 Hkknl dksrokyh ikyh 62@30-03-08 CJM Court fnukad
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[2026:RJ-JD:14220] (4 of 7) [CRLMP-1130/2026]
08 PALI 01-04-
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11 179@23-10- 143]383]323]427 lnj ikyh 140@12-10- ACJM PALI fnukad
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12 40@04-03- 307]323 Hkknl lnj ikyh 54@22-04- ADJ F. T. N. 2 fn- 13-
11 2009 PALI 1-10
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13 589@09-10- 307 Hkknl o 3@25 dksrokyh ikyh 430@08-12- CJM Court fnukad
13 vkElZ vf/kfu;e 2013 PALI 04-05-
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14 152@27-03- /kkjk 365] 368] 342 dksrokyh ikyh 173@04-06-18 ACJM(CR) iSf.Max
18 34]@323 Hkknl o Court dksVZ
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The definition of habitual offender envisaged under Section
2(a) of the Rajasthan Habitual Offenders Act, 1953 reads as
under:-
"2. (a) 'habitual offender' means a person
who, during any continuous period of five
years, whether before or after the 15th
day of September, 1952or partly before
and partly after the said date, has been
sentenced on conviction on not less than
three occasions since he attained the age
of eighteen years to a substantive terms of
imprisonment for any one or more of the
scheduled offences committed on different
occasions and not so connected together
as to form parts of the same transaction,
such sentence not having been reversed in
appeal or revision.
Provided that in computing the continuous
period of five years referred to above any
period spent in jail either under a sentence
of imprisonment or under detention shall
not be taken into account"
Upon examining the definition of habitual offender as
quoted above it is seen that a person can only be treated as a
habitual offender if he is sentenced or convicted or not less
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[2026:RJ-JD:14220] (5 of 7) [CRLMP-1130/2026]
than three occasions. However, in the present case, based
upon the report submitted by the State it is revealed that only
one case against the petitioner is pending consideration before
the learned Additional Chief Judicial Magistrate Court, Pali in
FIR No.152/2018, and in rest all the cases the petitioner has
been acquitted. The petitioner has not been convicted in any
of the cases and hence in such circumstances the petitioner
cannot be treated as a habitual offender within the meaning of
Section 2(a) of Rajasthan Habitual Offender Act, 1953.
The learned trial Court while passing the order dated
19.05.2025, has absolutely failed to consider the definition of
Habitual Offender, so as to initiate the proceedings under
Section 129 BNSS and to seek a bond for keeping peace and
maintaining a good behavior from the petitioner. Further the
order of learned Magistrate cannot be treated as a reasoned
and speaking order and has been passed without due
application of mind. It does not disclose any inquiry to have
been undertaken before asking the petitioner for keeping
peace and maintaining good behavior.
The Coordinate Bench of this Court in Shankar Lal vs.
State of Rajasthan in CRLMP No. 3308/2015 in identical
set of facts was pleased to quashed and set aside the
proceedings initiated under Section 110 Cr.P.C. The Hon'ble
High Court observed as under:
"8. In totality, I am at loss to say that petitioner
cannot be treated as habitual offender or a person
having tenancy of recidivism within the four corners of
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Section 2(a) of the Act of 1955 which is per-requisite
for initiation of proceeding under Section 110 Cr.P.C.
In common parlance asking someone to furnish a
bond of good behaviour appears to be innocuous, but
one cannot forget its overall impact on the personality
of an individual inasmuch as it causes a social stigma.
In a democratic republic, a citizen cannot be asked to
furnish bond of good behaviour without any justifiable
cause or ground because it obviously affects his
liberty and his social status in clear negation of Art. 21
of the Constitution, i.e., fundamental right of Life and
liberty The concept of right to life and liberty as
enshrined under Art. 21 of the Constitution of India,
being a guaranteed fundamental right undoubtedly
very wide inits scope and applicability and with the
advent of the modern strides in jurisprudence with
revolutionary pronouncements by the Apex Court in
umpteen number of judgments over the past more
than two decades has assumed wider connotations
and amplifications.
9. It is not in dispute that the term 'habitual offender'
is not defined under Cr.P.C., and the law governing the
province for surveillance and control of habitual
offenders in the State is envisaged under the Act of
1955. Therefore, for treating someone as habitual
offender to execute a bond of good behaviour, an
Executive Magistrate is required to record its
satisfaction in terms of Section 2(a) of the Act of 1955
and not otherwise. Maxim Expressio Unius est
exclusioalterius, i.e., "Express mention of one thing
implies the exclusion of another has its fullest
application in the backdrop of facts of the instant
case. Reliance on this settled legal proposition can be
profitably made to avery old decision in Taylor Vs.
Taylor (1875) LR 1 Ch D426. It was further followed
by Lord Roche in Nazir Ahmed Vs. King Emperor (AIR
1936 PC 253)."
Considering the law laid down by the co-ordinate bench
of this Court and the observation made above, this Court is of
the view that, initiation of proceeding under Section 129
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[2026:RJ-JD:14220] (7 of 7) [CRLMP-1130/2026]
BNSS against the petitioner cannot be sustained and
consequently, the impugned order dated 19.05.2025 passed
by Executive Magistrate is hereby quashed and set aside.
All pending application(s), if any, stand disposed of.
(BALJINDER SINGH SANDHU),J
195-Hanuman/-
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