Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Security for Keeping Peace and Good Behaviour Sections 125 to 143
Security for Keeping the Peace and for Good Behaviour under the BNSS, 2023: Chapter IX, Sections 125 to 143, Preventive Justice and the Six-Month Limit
Almost the whole of the Bharatiya Nagarik Suraksha Sanhita, 2023 is concerned with what a person has done. Chapter IX is concerned with what he may do. It permits a Magistrate, on information that a person is likely to commit a breach of the peace or is a suspected or habitual offender, to require him to execute a bond to keep the peace or to be of good behaviour, and to imprison him if he does not furnish it. No offence need be proved, no charge is framed, and there is no conviction at the end of it.
That is a considerable power, and it has always been controversial. Preventive justice is justified on the footing that the State should not have to wait for the harm before it acts; it is criticised on the footing that a person may be deprived of his liberty for something he has not done, on the strength of a general reputation, without the protections of a trial. The Chapter accordingly consists almost entirely of safeguards, and the Sanhita has added the most important of them: a six-month limit on the inquiry, on the expiry of which the proceeding stands terminated.
Figure 1: Chapter IX at a glance
1. The Nature of Preventive Justice
A criminal trial | A security proceeding | |
|---|---|---|
Directed at | What the person has done | What the person may do |
Begins with | A complaint or a police report, and cognizance of an offence | Information that a person is likely to breach the peace, or is a suspected or habitual offender |
The document that opens it | A charge under Chapter XVIII | A preliminary order under section 130 setting out the substance of the information |
Standard | Proof beyond reasonable doubt of the offence charged | Satisfaction, on inquiry, that the information is true |
Procedure | The trial procedure of Chapters XIX to XXII | The inquiry under section 135, conducted as nearly as practicable in the manner of a summons case |
Who conducts it | A Judicial Magistrate or a Court of Session | An Executive Magistrate, save under section 125 where the convicting Court acts |
Outcome | Conviction and sentence, or acquittal | An order to execute a bond, or discharge |
Consequence of the outcome | A sentence, and the disabilities that follow a conviction | Imprisonment only on failure to furnish the security, and no conviction |
Duration of the consequence | As the sentence provides | The period of the bond: up to one year under sections 126 to 128, up to three years under sections 125 and 129 |
The single most important proposition about the Chapter follows from that table. A security proceeding is not a trial, and the imprisonment that may follow is not a sentence. It is imposed for the failure to furnish security, not for any offence, and it ends the moment the security is furnished. That is why the Chapter is administered by an Executive Magistrate and why the procedure is that of an inquiry rather than a trial; and it is also why the safeguards have to be taken seriously, since none of the protections of a trial is available.
2. The Five Occasions for Security
Provision | Occasion | Who orders | Maximum period |
|---|---|---|---|
Section 125 | Keeping the peace on conviction. Where a Court of Session or a Magistrate of the first class convicts a person of an offence involving a breach of the peace, or of assault, or of abetting such an offence, and is of opinion that it is necessary to take security | The convicting Court; and an Appellate Court, or the High Court or Court of Session in revision | Three years |
Section 126 | Keeping the peace in other cases. On information that any person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace | An Executive Magistrate, where the place is within his jurisdiction or the person is within it | One year |
Section 127 | Good behaviour from persons disseminating certain matters. Where a person is disseminating, or attempting or abetting the dissemination of, any matter the publication of which is punishable under the specified provisions of the Bharatiya Nyaya Sanhita | An Executive Magistrate | One year |
Section 128 | Good behaviour from suspected persons. Where a person is taking precautions to conceal his presence within the local jurisdiction, and there is reason to believe he is doing so with a view to committing a cognizable offence | An Executive Magistrate | One year |
Section 129 | Good behaviour from habitual offenders. Where a person is habitually a robber, housebreaker, thief or forger; habitually receives stolen property; habitually protects or harbours thieves; habitually commits or attempts extortion, cheating or mischief; habitually commits offences under the specified special laws; or is so desperate and dangerous as to render his being at large without security hazardous to the community | An Executive Magistrate | Three years |
⚠ The word “habitually” does the work in section 129 A single act, or even two, does not make a person a habitual robber, thief or receiver. The section requires a habit, which is a settled practice, and the material must establish it. The section also permits proceedings against a person who is so desperate and dangerous as to render his being at large hazardous to the community. That is the widest expression in the Chapter and the one most open to misuse, because it does not depend on any particular past act at all. The safeguard is that the preliminary order under section 130 must set out the substance of the information, and the inquiry under section 135 must establish its truth. General allegations of bad reputation, without particulars capable of being tested, are not information within the Chapter, and the courts have repeatedly set aside orders founded on them. |
3. The Procedure
Figure 2: A security proceeding from start to finish
3.1 The preliminary order: section 130
Section 130, BNSS 2023 When a Magistrate acting under section 126, section 127, section 128 or section 129 deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth — (i) the substance of the information received; (ii) the amount of the bond to be executed; (iii) the term for which it is to be in force; and (iv) the number, character and class of sureties (if any) required. |
The order under section 130 is the foundation of the whole proceeding, and a defect in it goes to the jurisdiction to proceed at all. Three things follow. The order must set out the substance of the information, not merely a conclusion: a recital that the person is a habitual offender, without stating what he is said to have done, does not tell him the case he has to meet. It must fix the amount, the term and the sureties, and the final order under section 136 cannot exceed what the preliminary order specified. And it must be in writing: an oral direction is not an order under the section.
3.2 Bringing the person before the court: sections 131 to 134
- Section 131. If the person in respect of whom the order is made is present in court, it shall be read over to him, or, if he so desires, the substance of it shall be explained to him.
- Section 132. If he is not present, the Magistrate shall issue a summons requiring him to appear, or, where he is in custody, a warrant directing the officer in whose custody he is to bring him before the court. A warrant may be issued in the first instance where it appears on the report of a police officer or on other information that there is reason to fear a breach of the peace, and that it cannot be prevented otherwise than by his immediate arrest.
- Section 133. Every summons or warrant so issued shall be accompanied by a copy of the order, delivered by the officer serving or executing it to the person served or arrested.
- Section 134. The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of the person and permit him to appear by an advocate.
3.3 The inquiry: section 135
Section 135 requires the Magistrate to proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. The inquiry is to be made, as nearly as may be practicable, in the manner prescribed for conducting trial and recording evidence in summons cases. Where the Magistrate considers that immediate measures are necessary for the prevention of a breach of the peace or the commission of any offence or for the public safety, he may, for reasons to be recorded in writing, direct the person to execute an interim bond pending the completion of the inquiry.
⚠ The six-month limit The inquiry shall be completed within a period of six months from the date of its commencement. Where it is not, the proceeding shall, on the expiry of the period, stand terminated, unless the Magistrate, for special reasons to be recorded in writing, otherwise directs. Where any person has been kept in detention pending the inquiry and the proceeding is not completed within six months, he shall be released on the expiry of the period. This is the most important safeguard in the Chapter and it is worth dwelling on. A preventive proceeding that is allowed to run indefinitely, with an interim bond or a detention in force throughout, becomes a punishment imposed without a trial. The limit converts it back into what it is supposed to be: a short inquiry into whether the information is true, followed by an order or a discharge. |
3.4 The outcome: sections 136 and 137
If on the inquiry it is proved that it is necessary for keeping the peace or maintaining good behaviour that the person should execute a bond, the Magistrate makes an order under section 136 accordingly. The amount, the term and the sureties may not exceed what was specified in the preliminary order under section 130. If it is not proved, the Magistrate shall record that finding on his record and, if the person is in custody only for the purposes of the inquiry, release him, or if he is not in custody, discharge him: section 137.
3.5 The bond and the sureties: sections 138 to 140
- Section 138. Where the person in respect of whom the order is made is, on the date it is made, sentenced to or undergoing a sentence of imprisonment, the period for which the security is required commences on the expiry of that sentence. In any other case it commences on the date of the order, unless the Magistrate fixes a later date for sufficient reason.
- Section 139. The bond binds the person to keep the peace or to be of good behaviour, as the case may be, and its breach is the doing of any act that would defeat its object. A bond for keeping the peace is broken by any breach of the peace; a bond for good behaviour is broken by the commission of an offence punishable with imprisonment, wherever it may be committed.
- Section 140. The Magistrate may refuse to accept a surety, or may reject a surety already accepted, on the ground that he is an unfit person; but he must first hold an inquiry on oath, and must give the surety and the person concerned an opportunity of being heard, and must record his reasons.
4. Default, Imprisonment and Release
Provision | Content |
|---|---|
Section 141 | Imprisonment in default of security. If the person ordered to give security does not give it on or before the date on which the period commences, he shall, except in the case of an interim bond, be committed to prison, or if he is already in prison, be detained until the period expires or until he gives security. Where the proceeding is one under section 126 the imprisonment shall be simple; in other cases it may be rigorous or simple as the Court directs. The section also provides for a reference to the High Court or Court of Session where security is required for a period exceeding one year and the person has been detained for a substantial part of it |
Section 142 | Power to release. Whenever the District Magistrate is of opinion that a person imprisoned for failing to give security may be released without hazard to the community or to any other person, he may order him to be discharged. Where the order was made by a Court, that Court may make a similar order. A person so released may be required to furnish security for the unexpired portion |
Section 143 | Security for the unexpired period of the bond. Where a person is released under section 142, or where the bond has been forfeited, the Court may require him to give fresh security for the unexpired portion of the term, and the provisions of the Chapter apply to that security as if it were an order made under section 136 |
⚠ The limits on the detention The detention is not a sentence. It is coercive, directed at obtaining the security, and it ends the moment security is furnished. It cannot exceed the period for which the security was ordered. A person ordered to furnish security for one year cannot be detained for more than one year for failing to do so. The imprisonment is simple where the proceeding is under section 126, which is the commonest of the five occasions. The District Magistrate may release him at any time under section 142 if satisfied that he may be released without hazard, and where security was ordered for a long period the section requires the matter to be placed before a higher court. |
5. The Judicial Control of Preventive Proceedings
📖 Chaturi Yadav v. State of Bihar, (1979) 4 SCC 121 Facts: Proceedings were taken under the provision corresponding to section 129 requiring the appellants to furnish security for good behaviour on the footing that they were habitual offenders. The inquiry proceeded largely on general assertions of bad reputation, and the question was what a Magistrate must find, and on what material, before requiring security from an alleged habitual offender. Held: The Supreme Court held that a proceeding of this kind is a serious inroad on the liberty of the subject and that the requirements of the section must be strictly complied with. The Magistrate must be satisfied of the habitual character of the person on evidence, and general repute must be established by witnesses who speak from their own knowledge of the locality and not by vague and bald assertions. The Court emphasised that the inquiry, though not a trial, must give the person a real opportunity to meet the material against him, that the substance of the information must be communicated to him, and that an order founded on material that does not establish the statutory ingredients cannot stand. Ratio: A proceeding for security from a habitual offender requires proof of the statutory ingredients on evidence. General assertions of bad reputation, incapable of being tested, are not a sufficient foundation. |
📖 Gopalanachari v. State of Kerala, 1980 Supp SCC 649 Facts: An elderly man was detained in default of furnishing security in proceedings under the provision corresponding to section 129, on a police report asserting in general terms that he was a person of dangerous character. He had been in custody for a considerable period, and the record disclosed little beyond the assertion. Held: The Court set aside the proceedings. It held that the section is not a licence to detain the poor and the vagrant on vague police assertions, and that a Magistrate acting under it must apply his mind to material disclosing the statutory ingredients. The record must show specific instances and credible evidence, not a stereotyped report; the person must be told what is alleged against him with sufficient particularity to meet it; and an order which results in prolonged detention on material of this quality violates the requirement of a fair procedure. The Court observed that provisions of this kind, administered mechanically, become instruments of harassment of those least able to resist them. Ratio: Preventive security proceedings must be founded on specific and credible material disclosing the statutory ingredients. Administered on vague assertions, they are an abuse of a power given for the protection of the community. |
The two decisions are the practical law of this chapter. Neither doubts the validity of preventive justice, and neither suggests that the power should not exist. What both insist on is that the statutory ingredients must be made out on material capable of being tested, that the substance of the information must be communicated so that it can be met, and that the proceeding must not be used against persons who are merely poor, itinerant or unpopular. The six-month limit the Sanhita has added addresses the third of those concerns directly, because the abuse the decisions describe operated principally through delay.
6. Where the Chapter Sits in the Sanhita
Provision | Relationship to Chapter IX |
|---|---|
Section 3(2) | Functions which are administrative or executive in nature are exercised by an Executive Magistrate. Chapter IX is the principal field in which an Executive Magistrate acts, and the allocation gives effect to Article 50 |
Section 1(2) | Chapters IX, XI and XII apply of their own force even in the areas in which the Sanhita does not otherwise apply, which is why preventive jurisdiction reaches further than the trial machinery |
Chapter XI | Public order and tranquillity: unlawful assemblies, public nuisances, urgent orders in cases of nuisance or apprehended danger, and disputes as to immovable property. The other principal field of executive magistracy |
Chapter XII | Preventive action of the police, including the duty to prevent cognizable offences and the power to arrest to prevent one |
Section 496 | Nothing in the chapter on bail is deemed to affect the provisions of section 143 on security for the unexpired period of a bond |
Chapter XXXV | The general provisions on bonds and bail bonds, including forfeiture under section 491 and cancellation under section 492, apply to bonds taken under this Chapter |
7. Key Takeaways
The position stated shortly 1. Chapter IX contains nineteen sections, 125 to 143, corresponding to sections 106 to 124 of the CrPC. It is preventive, not punitive: it is directed at what a person may do, and it ends in a bond, not a sentence. 2. There are five occasions: security for keeping the peace on conviction (s.125, up to three years); for keeping the peace in other cases (s.126, up to one year); for good behaviour from persons disseminating certain matters (s.127, one year); from suspected persons concealing their presence (s.128, one year); and from habitual offenders (s.129, up to three years). 3. Save under section 125, where the convicting Court acts, the Chapter is administered by an Executive Magistrate. 4. The preliminary order under section 130 is the foundation. It must be in writing and must set out the substance of the information, the amount, the term, and the number, character and class of sureties. The final order cannot exceed it. 5. The person is brought before the court by summons, or by warrant where he is in custody or there is reason to fear a breach of the peace that cannot otherwise be prevented; and a copy of the order must accompany the process. 6. The inquiry under section 135 is conducted as nearly as practicable in the manner of a summons case, and an interim bond may be required for reasons recorded in writing. 7. The inquiry must be completed within six months, failing which the proceeding stands terminated unless the Magistrate records special reasons; and a person in detention shall be released on the expiry of that period. 8. On proof, security is ordered under section 136; if the information is not proved, the person is discharged under section 137. 9. Imprisonment in default under section 141 is coercive and not a sentence, is simple in a proceeding under section 126, cannot exceed the period for which security was ordered, and ends on the security being furnished. The District Magistrate may release him at any time under section 142. 10. The statutory ingredients must be made out on specific and credible material, and general assertions of bad reputation will not do: Chaturi Yadav and Gopalanachari. |
8. Frequently Asked Questions
What is a security proceeding under Chapter IX?
A preventive proceeding in which a Magistrate, on information that a person is likely to commit a breach of the peace or is a suspected or habitual offender, requires him to execute a bond to keep the peace or to be of good behaviour. It is not a trial, no offence is charged, and there is no conviction.
Who conducts security proceedings?
An Executive Magistrate, in proceedings under sections 126 to 129. Under section 125 the order is made by the Court that convicts the person, and may also be made by an Appellate Court or by the High Court or Court of Session in revision.
For how long can security be required?
Up to three years under section 125 and section 129, and up to one year under sections 126, 127 and 128. The term must be specified in the preliminary order under section 130, and the final order cannot exceed it.
What is the six-month rule in section 135?
The inquiry into the truth of the information must be completed within six months from the date of its commencement. If it is not, the proceeding stands terminated on the expiry of that period unless the Magistrate for special reasons recorded in writing directs otherwise, and a person kept in detention pending the inquiry must be released.
Is imprisonment for failing to give security a sentence?
No. It is coercive, imposed for the failure to furnish security and not for any offence, and it ends the moment security is furnished. It cannot exceed the period for which security was ordered, and it is simple imprisonment where the proceeding is under section 126.
Can a person be required to give security merely because he has a bad reputation?
No. The Magistrate must be satisfied on evidence that the statutory ingredients are made out, and general repute must be established by witnesses speaking from their own knowledge. Vague or stereotyped assertions of bad character are not a sufficient foundation: Chaturi Yadav and Gopalanachari.
Related Topics
- Reciprocal Arrangements and Forfeiture of Property: Sections 111 to 124
- Maintenance of Public Order and Tranquillity: Chapter XI, BNSS
- Preventive Action of the Police: Chapter XII, BNSS
- Constitution of Criminal Courts: Sections 6 to 17, BNSS
- Bail and Bonds under the BNSS, 2023: Sections 478 to 496
- Application and Commencement of the BNSS, 2023