The primary object of criminal procedure is to provide machinery for the administration of substantive criminal law. The code, therefore, enacted elaborate provisions as seen for investigation, trial in respect of every crime alleged to be committed. In addition to this, it was felt that it was necessary to include in the code certain pre-emptive measures for the prevention of crimes & certain other preventive measures for the safety and protection of society. These matters are contained in sections 106-124.
With respect to chapter VIII, the term security here means guarantee/surety which is in the form of bond payable for the breach of condition of the bond. The object of the criminal procedure code is to ensure justice to the offender and to see that such offence should not be repeated. Peace and good behaviour are two important expectations of a civilized society, hence chapter VIII of The Code Of Criminal Procedure, 1973 deals with the security proceedings.[I]
Security for Peacekeeping
Security for keeping the peace may be taken against a person under the following circumstances: On conviction of offences likely to cause a breach of the peace: when a court convicts a person of an offence involving breach of the peace, the court may, in addition to the sentence that it may award for the offence, order the offender to give security for keeping the peace for a specified period not exceeding three years. This has been provided by Section 106. The powers u/s 106 of the code can be exercised only by the Court of Session or by the magistrate first class. They can also be exercised by the appellate court or by a court exercising its powers of revision.
The essentials of section 106 are it applies to Any offence punishable under chapter VIII of The Indian Penal Code, Any offence which consists of or includes assault or using criminal force or committing mischief, Any offence of criminal intimidation, Any other offence which caused or which is likely to cause a breach of peace.
In other cases: Under section 107 an offender is required to execute a bond for maintenance of public security where there is likely to be disruption in public order. In order to be effective, proceedings under section 107 have to be taken urgently, and as they are immediately concerned with the maintenance of peace and order, the functions under the section assigned to the Executive Magistrate.
The underlying object of the section is preventive, 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. In the case of Madhu Limaye v. Sub Divisional Magistrate, Monghyr[II]
It was observed that the object of the section is that it can be invoked in the emergent situation when prompt action is required to deal with the breach of peace.
In the case of Ram Narain Singh V. State of Bihar[III]
It was observed that wide powers have been conferred on the Executive Magistrate, hence it is necessary that those powers are strictly exercised in accordance with the law.
The sine qua non for the institution of proceedings under this section is that the Magistrate should be of the opinion that there is sufficient ground for proceedings against the person informed against.[IV]
Security for Good Behaviour
Section 108, 109, and 110 provide for taking security for good behaviour from a person propagating seditious matters or matters amounting to defamation of judges from suspected persons and from habitual offenders. Section 107-110 deals with preventive action. They are vitally connected with the preservation of public peace and the maintenance of law and order. This is the first duty of every state. The duty cannot be effectively carried out without some provisions designed to give sufficient powers. Proceedings under sections 108-110 are initiated by the police or by private individuals and seem to have the characteristics of a regular trial.
Proceedings against persons disseminating seditious matters:
The jurisdiction under section 108 is preventive and not punitive. The test under this section is whether the person proceeded against has been propagating seditious matters or such matters mentioned in section 108 and whether there is any fear of a repetition of the offence. In each case that is a question of fact, that must be determined with reference to the antecedents of the person & other surrounding circumstances.
Proceedings against suspected persons:
The object of section 109 is to check and control the persons who are likely to commit offence and it cannot be denied that this cannot be done unless they are prevented from doing so by resorting to provisions of this kind.
In the case of State of Mysore V. Koti Poojary[V]
It was held that in order to attract section 109 two conditions will have to be satisfied: taking caution to conceal presence and the concealment must be with a view to committing a cognizable offence.
Proceedings against habitual offenders:
A person who habitually commits offences of anti-social nature such as those relating to adulteration of food or drugs or foreign exchange or customs or hoarding or corruption deserves perhaps even greater control than a person who habitually commits offences like theft etc. These offences have therefore been included in this section. The object of this section is to protect the public against hardened and habitual criminals. The information received by the Magistrate under this section must not be vague. The words “habit”, “habitually” have been used in a sense of depravity of character as evidenced by the frequent repetition or commission of the offences mentioned in this section.[VI]
The Supreme Court has directed the trial Magistrates to discharge their duties when trying cases under section 110 with great responsibility, and whenever the counter petitioner is a prisoner to give him the facility of being defended by a counsel. If the state is not in a position to render legal aid to such a person in custody, whether it be on an account of financial stringency or otherwise, the entire procedure may be vitiated by such failure on the part of the state to render legal aid. Therefore it may be noticed that unlike in section 108, 109 the bond to be executed under this section must be with sureties[VII]
I- R.V Kelkar’s, Criminal Procedure, Preventive and precautionary measures, 771 (sixth edition, 2014, reprinted 2018), EBC Publishing, Lucknow
II- AIR 1970, 3 SCC 746: 1971 Cri LJ 1720
III- AIR 1972 2 SCC 532: 1972 SCC (Cri) 870, 871 Cri LJ 1444
IV- C.S Reddy V. State of A.P, 1973 Cri LJ 1713, 1714 (AP)
V- (1965) 2 criLJ 517: AIR 1965 Mys 264
VI- Bhubaneshwar Kuer V. Emperor, (1927) 28 CriLJ 359, 361: AIR 1927 Pat 128
VII- R.V Kelkar’s, Criminal Procedure, Preventive and precautionary measures, 782 (sixth edition, 2014, reprinted 2018), EBC Publishing, Luckn