The Security Inquiry and What Follows It

Section 133. Every summons or warrant under section 132 shall be accompanied by a copy of the section 130 order, and the officer serving or executing it shall deliver that copy to the person.

Section 134. The Magistrate may, for sufficient cause, dispense with the personal attendance of the person, and permit him to appear by an advocate.

Section 135: the inquiry

Sub-section (1). Once the order has been read or explained, or the person appears or is brought before the Magistrate, the Magistrate shall proceed to inquire into the truth of the information on which action was taken, and to take such further evidence as appears necessary.

Sub-section (2), the manner. The inquiry is made, as nearly as may be practicable, in the manner prescribed for conducting a trial and recording evidence in summons-cases. So the person gets the protections of a summons case trial even though he is not accused of anything.

Sub-section (3), interim security. After the inquiry begins and before it ends, the Magistrate, if he considers immediate measures necessary for preventing a breach of the peace, a disturbance of public tranquillity, the commission of an offence, or for public safety, may, for reasons recorded in writing, direct the person to execute a bond or bail bond for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until it is executed or, in default, until the inquiry concludes.

The proviso limits that in two ways. (a) A person not proceeded against under section 127, 128 or 129 may not be directed to give an interim bond for good behaviour. (b) The conditions of the interim bond, as to amount, sureties, their number or the extent of their liability, shall not be more onerous than those in the section 130 order.

Sub-section (4), how habit is proved. The fact that a person is a habitual offender, or is so desperate and dangerous that his being at large without security is hazardous, may be proved by evidence of general repute or otherwise.

That is a striking rule of evidence and it should be named in an answer: reputation is admissible here, where in an ordinary trial it would not be.

Sub-section (5). Where two or more persons are associated in the matter, they may be dealt with in the same or separate inquiries, as the Magistrate thinks just.

Sub-section (6), the clock. The inquiry shall be completed within six months of its commencement. If it is not, the proceedings under the Chapter stand terminated on the expiry of that period, unless the Magistrate, for special reasons recorded in writing, otherwise directs.

The proviso to sub-section (6). Where the person has been kept in detention pending the inquiry, the proceeding against him, unless terminated earlier, stands terminated on the expiry of six months of such detention. Note the difference: this limb has no exception for special reasons.

Sections 136 and 137: the two possible endings

Section 136, order to give security. 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 shall make an order accordingly.

The proviso, three limits.

(a) No person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the section 130 order. (b) The amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive. (c) Where the person is a child, the bond shall be executed only by his sureties.

Limit (c) changed with the Sanhita: the old section 117 said "minor", and the Sanhita says "child", which is the expression the Juvenile Justice Act uses.

Section 137, discharge. If it is not proved that security is necessary, the Magistrate shall make an entry on the record to that effect, and shall release the person if he is in custody only for the purposes of the inquiry, or discharge him if he is not.

Sections 138 to 140: the bond itself

Section 138, when the period starts. If the person is, when the order is made, sentenced to or undergoing a sentence of imprisonment, the security period commences on the expiration of that sentence. Otherwise it commences on the date of the order, unless the Magistrate for sufficient reason fixes a later date.

Section 139, what the bond binds him to. To keep the peace or to be of good behaviour, as the case may be. And in the case of good behaviour, the commission or attempt to commit, or the abetment of, any offence punishable with imprisonment, wherever it may be committed, is a breach of the bond.

Those last words are the reason a good behaviour bond is a heavier obligation than a peace bond: the offence need have nothing to do with the peace, and need not be committed anywhere near the place.

Section 140, rejecting a surety. A Magistrate may refuse to accept a surety offered, or reject one previously accepted by him or his predecessor, on the ground that the surety is an unfit person.

The proviso requires him first to hold an inquiry on oath into the fitness of the surety, or cause one to be held and reported on by a subordinate Magistrate. He must give reasonable notice to the surety and to the person who offered him, and record the substance of the evidence. If satisfied, he makes an order refusing or rejecting the surety and records his reasons. And before rejecting a surety previously accepted, he must issue a summons or warrant and have the person for whom the surety is bound brought before him.

Sections 141 to 143: default, release, and the unexpired period

Section 141(1)(a), default. A person ordered to give security under section 125 or section 136 who does not give it on or before the date the period commences shall be committed to prison, or if already in prison detained, until the period expires or he gives the security to the Court or Magistrate who made the order.

Section 141(1)(b), breach of a peace bond. Where a person who has executed a bond for keeping the peace under a section 136 order is proved to have committed a breach of it, the Magistrate or his successor may, after recording the grounds of such proof, order him arrested and detained in prison until the expiry of the period of the bond, without prejudice to any other punishment or forfeiture.

Section 141(2), the Sessions Judge. Where the security ordered was for a period exceeding one year and it is not given, the Magistrate shall issue a warrant detaining him pending the orders of the Sessions Judge, and the proceedings shall be laid before that Court as soon as conveniently may be.

Section 141(3). The Sessions Court, after examining the proceedings, requiring any further information or evidence, and giving the person a reasonable opportunity of being heard, may pass such order as it thinks fit. The proviso: the period of imprisonment for failure to give security shall not exceed three years.

Section 141(4). Where security was required in the same proceeding from two or more persons and one case is referred to the Sessions Judge, the reference includes the others, except that the imprisonment of any of them shall not exceed the period for which he was ordered to give security.

Section 141(5). A Sessions Judge may transfer such proceedings to an Additional Sessions Judge, who then exercises the same powers.

Section 141(6). If the security is tendered to the officer in charge of the jail, he shall forthwith refer the matter to the Court or Magistrate who made the order and await its orders.

Section 141(7) and (8), the kind of imprisonment. For failure to give security for keeping the peace, imprisonment is simple. For failure to give security for good behaviour, it is simple where the proceedings were under section 127, and rigorous or simple as the Court or Magistrate directs where they were under section 128 or 129.

Section 142, release, and it has eight sub-sections.

(1) The District Magistrate, where the order was passed by an Executive Magistrate under section 136, or the Chief Judicial Magistrate in any other case, may order the discharge of a person imprisoned for failing to give security, if of opinion that he may be released without hazard to the community or to any other person.

(2) The High Court or Court of Session, or, where the order was made by any other Court, the District Magistrate or the Chief Judicial Magistrate as the case may be, may make an order reducing the amount of the security, the number of sureties, or the time for which security was required.

(3) A discharge under sub-section (1) may be unconditional or upon conditions the person accepts, and the proviso says any condition ceases to be operative when the security period expires.

(4) The State Government may prescribe by rules the conditions on which a conditional discharge may be made.

(5) to (8), if he breaks a condition. The District Magistrate or Chief Judicial Magistrate who made the order, or his successor, may cancel the conditional discharge. Once cancelled, the person may be arrested by any police officer without warrant and must be produced before that Magistrate. Unless he then gives security for the unexpired portion, which is deemed to be the period between the date of the breach and the date he would otherwise have been released, he may be remanded to prison for that portion. And he is to be released at any time on giving that security.

(9) and (10), cancelling a bond. The High Court or Court of Session may at any time, for sufficient reasons recorded in writing, cancel any bond for keeping the peace or good behaviour executed under an order it made; and the District Magistrate or Chief Judicial Magistrate may cancel one executed under his own order or that of another Court in his district. And a surety may at any time apply to the Court that made the order to cancel the bond, whereupon the Court shall issue a summons or warrant requiring the person for whom he is bound to appear or be brought before it.

Sub-section (10) is the escape route for a surety who has changed his mind about the man he guaranteed, and it leads straight into the next section.

Section 143, security for the unexpired period of the bond. Where a person for whose appearance a summons or warrant has been issued under the proviso to section 140(3), that is where a previously accepted surety is being rejected, or under section 142(10), that is where a surety has applied to cancel the bond, appears or is brought before the Magistrate or Court, that Magistrate or Court shall cancel the bond he executed and shall order him to give fresh security of the same description for the unexpired portion of the term.

Sub-section (2) then makes every such order deemed to be an order under section 125 or section 136, as the case may be, for the purposes of sections 139 to 142. So the fresh security carries the same consequences on default, including imprisonment under section 141.

A worked example

An Executive Magistrate at Bhiwandi makes an order under section 130 against Farooq, proceeding under section 129, requiring him to show cause why he should not give a bail bond for good behaviour for three years, with two sureties of a stated amount.

Getting him in. Farooq is not present, so a summons issues under section 132, accompanied by a copy of the section 130 order, which the serving officer delivers to him, section 133.

During the inquiry. The Magistrate conducts it as nearly as practicable in the manner of a summons case, section 135(2). Because Farooq is being proceeded against under section 129, the Magistrate may, for reasons recorded, direct an interim bond for good behaviour under section 135(3), but on conditions no more onerous than the section 130 order.

Proving habit. The prosecution may prove that Farooq is a habitual offender by evidence of general repute, section 135(4).

The clock. The inquiry must finish within six months of commencement or the proceedings stand terminated, unless the Magistrate records special reasons, section 135(6). If Farooq is detained during it, the proceeding terminates at six months of detention with no exception.

The ending. If the necessity is proved, the Magistrate orders security under section 136, and may not require a different nature, a larger amount, or a longer period than the section 130 order named. If it is not proved, he makes an entry and discharges Farooq under section 137.

Farooq does not furnish the bail bond. He is committed to prison under section 141(1)(a). Because the period ordered exceeds one year, the Magistrate must issue a warrant detaining him pending the orders of the Sessions Judge and lay the proceedings before that Court, section 141(2). The Sessions Judge hears him and may pass such order as he thinks fit, but the imprisonment cannot exceed three years, proviso to section 141(3). Because the proceedings were under section 129, the imprisonment may be rigorous or simple as directed, section 141(8).

A year later. The District Magistrate, being of opinion that Farooq may be released without hazard to the community, may order his discharge under section 142(1). If he is released before the period expires, the Court may require security for the unexpired portion under section 143.

A surety turns out to be a man of straw. The Magistrate may reject him under section 140, but only after an inquiry on oath into his fitness, reasonable notice to the surety and to the person who offered him, a record of the substance of the evidence, and recorded reasons; and, the surety having already been accepted, only after having Farooq brought before him.

Distinctions

What this does NOT mean

The six month rule is not absolute for the inquiry, because section 135(6) allows the Magistrate to direct otherwise for special reasons recorded in writing. But it is absolute where the person is in detention, because the proviso has no such exception.

Imprisonment in default is not a sentence for an offence. It is detention for refusing to furnish security, which is why section 141(6) requires the jailer to refer a tender of security at once and section 142 allows release without hazard.

Section 140 does not let a Magistrate reject a surety on a view formed in his own mind. It requires an inquiry on oath, notice, a record of the evidence, and reasons.

And a good behaviour bond is not confined to the locality or to breaches of the peace. Section 139 makes any offence punishable with imprisonment, wherever committed, a breach.

Quick revision

• Sections 131 to 134: order read or explained if present; summons, or warrant if in custody, if not; emergency warrant of arrest where a breach of the peace cannot otherwise be prevented, on recorded material; a copy of the section 130 order must accompany the process; personal attendance may be dispensed with and an advocate allowed.
• Section 135: inquiry into the truth of the information, in the manner of a summons case; interim bond for reasons recorded, not more onerous than the section 130 order, and not for good behaviour unless the proceeding is under section 127, 128 or 129; habit or dangerousness provable by general repute; six months to complete, or the proceedings stand terminated unless special reasons are recorded; six months of detention terminates it with no exception.
• Section 136: order to give security, capped by the section 130 order as to nature, amount and period; the amount must not be excessive; a child's bond is executed only by his sureties.
• Section 137: entry on the record and release or discharge where necessity is not proved.
• Section 138: the period runs from the end of any sentence being served, otherwise from the date of the order.
• Section 139: for a good behaviour bond, any offence punishable with imprisonment, wherever committed, is a breach.
• Section 140: a surety may be refused or rejected only after an inquiry on oath, notice, a record of the evidence and reasons.
• Section 141: prison on default; breach of a peace bond leads to detention for the balance of the period on recorded grounds; over one year goes to the Sessions Judge; imprisonment capped at three years; jailer must refer a tender of security; simple imprisonment for peace and for section 127, rigorous or simple for sections 128 and 129.
• Section 142: discharge where release is without hazard, by the District Magistrate or Chief Judicial Magistrate; the High Court or Court of Session may reduce the amount, the number of sureties or the time; discharge may be conditional, on conditions the State Government prescribes by rules; breach permits cancellation, arrest without warrant, and remand for the unexpired portion, measured from the date of the breach.
• Section 143: where a surety is rejected under the proviso to section 140(3), or a surety applies under section 142(10) to cancel the bond, the Court cancels the bond and orders fresh security of the same description for the unexpired portion; that order is deemed an order under section 125 or 136 for sections 139 to 142.

Test yourself

1. In what manner is the inquiry under section 135 conducted? As nearly as may be practicable in the manner prescribed for conducting a trial and recording evidence in summons-cases, section 135(2).

2. What happens if the inquiry is not completed within six months? The proceedings under the Chapter stand terminated on the expiry of that period, unless the Magistrate, for special reasons recorded in writing, otherwise directs. Where the person has been in detention, the proceeding stands terminated at six months of detention with no such exception.

3. How may it be proved that a person is a habitual offender? By evidence of general repute or otherwise, section 135(4).

4. Can the final order require more than the show cause order specified? No. The proviso (a) to section 136 forbids security of a different nature, a larger amount, or a longer period than that specified in the section 130 order.

5. Who takes over when security exceeding one year is not furnished? The Sessions Judge. The Magistrate issues a warrant of detention pending his orders and lays the proceedings before him, section 141(2); the imprisonment cannot exceed three years.

6. What kind of imprisonment follows a default under section 129 proceedings? Rigorous or simple, as the Court or Magistrate in each case directs, section 141(8).

7. A child is ordered to give security. Who executes the bond? Only his sureties, proviso (c) to section 136.