Security Proceedings under the Code of Criminal Procedure, 1973

By | August 24, 2019
Security proceedings under the code of criminal procedure, 1973

Security Proceedings under the Code of Criminal Procedure, 1973 | Overview


Security, for the purpose of Chapter VIII, means collateral in the form of a bond to pay a specific amount on breach of the condition of the bond. Chapter VIII of the Code of Criminal Procedure, 1973 deals with security proceedings conducted by the courts. It is not only the duty of the criminal law to bring the offender to justice but to ensure that such offences are not repeated.

Keeping this in consideration, the lawmakers have inserted Sections 106 to 110 to empower the courts to conduct security proceedings under the Code to prevent convicted offenders and habitual offenders from reiterating such acts.

Security Proceedings

The code empowers the courts to conduct security proceedings for two purposes. For the ease of understanding, the article is divided into two parts each dealing with one of the purposes for exercising the power to foist security upon such persons.

Part I: Security for Peacekeeping

Security proceeding for keeping the peace “may be taken against a person under the following circumstances”[1]:

  • On Conviction of an offence likely to cause a breach of the peace This provision and provisions hereinafter are to ensure the maintenance of public peace and tranquillity. The Code bestows carte blanche powers to the Executive Magistrate for this purpose. Under this provision, if a person is convicted of any offence, the nature of which is such that it will disrupt public order and peace, the Magistrate may convict the person of such offence and at the time of conviction, require the person to execute a bond prohibiting any recidivism of the same offence within three years of his release from prison. For instance, a person who has been a part of an unlawful assembly preparing to cause a riot in the society is believed to be committing an offence that will disturb public order.

The important ingredients of the provision are:

Firstly, it applies to “offences under Chapter VIII of the Indian Penal Code including the offence of assault, criminal force ad criminal intimidation”[2].

Secondly, the bond can be executed “with or without sureties”[3] to take the guarantee in case there is a violation of the conditions of the bond and the person escapes from justice.

Thirdly, the person must be “convicted by a court of competent jurisdiction”[4] after a fair trial.

Fourthly, if the “conviction is set aside in an appeal or review or otherwise, the bond executed shall be void”[5].

  • In any other cases Section 107 of Cr.P.C provides similar powers to require an offender to execute a bond for maintenance of public serenity in any other cases where public order disruption is likely and probable. The joint committee report on criminal law provided that “in order to be effective, proceedings under the above section have to be taken urgently”[6] and since these procedures relate to “maintenance of peace and order in the society, the powers have been vested upon the executive Magistrates”[7].

The objective of the provision is preventive in nature and not punitive. The section is designed “to enable the Magistrate to take measures with a view to preventing the commission of offences involving breach of peace or disturbance of public tranquillity”[8]. In Rajendra Singh Pathania v. State, the court observed that the object of the provisions is “to invoke it in an emergent situation when prompt action is necessitated to deal with threatening apprehension of breach of peace”[9].

The courts have been “very vigilant in dealing with the action of the execution in relation to these provisions”[10]. This was made categorical by the judgment of the Madhya Pradesh High Court in Medha Patkar v. the State of M.P., wherein the “court awarded compensation to the accused as the government sent them to prison for failure of furnishing bond in a case where no evidence had been brought on record to prove that there was an anticipation of breach of peace”[11].

The Executive Magistrate is the head of the police force in a district who is accountable for maintaining peace and tranquillity. Thus, “he has absolute and unqualified discretion to decide whether or not it is imperative, for maintenance of peace, to institute proceedings under Section 107[12]. However, this discretion must be guided by reason and not a whim. To ensure the reasonable exercise of power under this provision the sine qua non have been obtruded by the courts:

Firstly, the Magistrate should be of “the opinion that there is sufficient ground for proceeding against the person informed against”[13].

Secondly, the Magistrate is “bound to record the reasons for forming such opinion before issuing notice under Section 111[14].

Part II: Security for Good Behaviour

Sections 108, 109 and 110 of the Code provide for taking security for good behaviour from persons involved in any kind of act constituting an offence under the Indian Penal Code. The provisions of these sections affect the liberty of a person and hence, is violative of Article 21 of the Indian Constitution.

Therefore, the lawmakers considered it vital to vest the power upon Judicial Magistrate “to be exercised in accordance with the procedure established by law”[15]. However, the provision was “amended by the Criminal Procedure (Amendment) Act, 1980 to transfer the power from the Judicial Magistrate to the Executive Magistrates”[16].

Maintenance of law and order in the community is of prime importance under the Cr.P.C. Therefore, to attain this objective, the code empowers the functionaries to obtain security from different classes of persons. These are:

  • Proceedings against persons disseminating seditious mattersSection 108 of the Code empowers an Executive Magistrate to “order a person to execute a bond if such person is known to be disseminating seditious matters or matters amounting to intimidation or defamation of a judge”[17]. The jurisdiction under this provision is “preventive and not punitive”[18]. The test under this section is “whether the person proceeded against has been disseminating seditious matters or any other matter as mentioned above and whether the court fears a possibility of recidivism”[19].

The second clause of the provision provides for “taking security for the dissemination of obscene material”[20]. In the first part, it is essential that the dissemination was done intentionally whereas, for the second part, the intention is not a consideration. Any person who “makes, produces, publishes or keeps for sale, imports, export conveys, sells, lets to hire, distributes, publicly exhibits or in any other manner puts into circulation any obscene matter”[21] shall be included under this section. Moreover, the section does not only apply on the commission of offence but also on attempt and abetment of the same offences.

  • Proceedings against Suspected PersonsSection 109 of the Cr.P.C provides a procedure to “check and control the persons who are likely to commit offences and it cannot be denied that this cannot be done unless they are prevented from doing so by resorting to provisions such as Section 109”[22]. The provisions of Section 109 are so stringent that it may be “made an engine of oppression unless care is taken by the Magistrates to prevent its abuse. The object of the section is to enable the Magistrate to take action against suspicious strangers lurking within their jurisdiction”[23].

While explaining the scope of the terms “conceal presence”[24] under Section 109, the court in Abdul Ghafoor v. Emperor held that “these words are sufficiently wide to cover not only the concealment of bodily presence in a house or grove, etc. but also the concealment of appearance by wearing a mask or covering the face or disguising in any other way”[25].

Now, in order to apply the provisions of Section 109, the courts have laid down two essential conditions:

  1. “The person must be taking precautions to conceal his presence, and
  2. The concealment must be with a view to committing a cognizable offence”[26].
  • Security Proceedings against habitual offendersPersons who “habitually commit offences of anti-social traits”[27] like food adulteration or customs or corruption, not only deserve to be punished but certain action is required to be taken against such persons to prevent recidivism on their part. The provision deals with offences which are anti-social in nature, i.e. those directly affect the society at large. For instance, theft may be an offence against the society but, however, it directly affects the one whose materials have been stolen. On the other hand, food adulteration affects everyone in general.

In Emperor v. Vijaidatta Jha, the court averred that “the object of the section is to protect the public against hardened and habitual offenders”[28]. The information received by the police officer under this section “should not be vague and must indicate that person against whom the information is given is by habit an offender”[29].

Therefore, in all these situations, the code entails that an Executive Magistrate is obliged to issue a show-cause notice urging the person to state his reasons and explain why the Magistrate must not require him to execute a bond to ensure peace and serenity in the society and if such person fails to show cause or the Magistrate is not satisfied with his cause, he may order such person to execute a bond with the condition of not repeating the offence.

[1] K.N. Chandrashekaran Pillai, R.V. Kelkar’s Criminal Procedure 774 (6th ed. 2018).

[2] §106 (2), Cr.P.C, 1973.

[3] §106 (1), Cr.P.C, 1973.

[4] Ibid.

[5] §106 (3), Cr.P.C, 1973.

[6] 41st Report, Joint Committee on Criminal Law 50 (2008).

[7] 2 D.D. Basu, Code of Criminal Procedure, 1973 2238(6th ed. 2017).

[8] Pillai, supra note 1 at 775.

[9] Rajendra Singh Pathania v. State, (2011) 13 SCC 329.

[10] Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 2065 (18th ed. 2006).

[11] Medha Patkar v. the State of M.P., 2008 Cri. L.J 47 (MP).

[12] C.S. Reddy v. the State of A.P., 1973 Cri.L.J 1713 (AP).

[13] Ram Chandra Jena v. Muralidhar Onjha, 1988 Cri. L.J 218 (Ori).

[14] Tavinder Kumar v. State (NCT of Delhi), 1990 Cri. L.J 40 (Del).

[15] Article 21, Constitution of India, 1950.

[16] Supra note 10 at 51.

[17] §108, Cr.P.C, 1973.

[18] Pillai, supra note 1 at 779.

[19] Vaman Sakharam Khare v. Emperor, (1909) 10 Cri. L.J 379.

[20] §108(1) (ii), Cr.P.C, 1973.

[21] Ibid.

[22] Supra note 10 at 11.

[23] Dasappa v. the State of Karnataka, 1975 Cri. L.J 1613 (Kant).

[24] §109 (1), Cr.P.C, 1973.

[25] Abdul Ghafoor v. Emperor, (1944) 45 Cri. L.J 219.

[26] State of Mysore v. Koti Poojari, AIR 1965 Mys 264.

[27] Basu, supra note 11 at 2241.

[28] Emperor v. Vijaidatta Jha, AIR 1948 Nag 28.

[29] In re: Narendra Nath Jha, AIR 1938 Pat 533.

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Author: Ashish Agarwal

Advocate | School of Law, Christ University Alumnus

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