Chapter 8 of the criminal procedure code discusses the provisions related to the security for keeping the peace and for good behaviour. In the essence of the code, here security refers to furnishing guarantee to the satisfaction of the Court that a certain conduct is mandatory to be maintained for a certain period by a certain person concerning a certain thing. This procedure takes place in the shape of a bond to be executed by such person from whom security is demanded. It may occur with sureties or without sureties.
The law has vested this discretionary power upon the court. It is not an administrative proceeding. Rather it is a judicial proceeding. Neither it is repugnant to the Fundamental rights under the Constitution nor it is discriminatory in character. It is a give and take procedure where the accused gives the security while the security is taken by the court. Such security proceedings are taken after undergoing a judicial inquiry. Hence security proceedings are judicial proceedings
An exhaustive and comprehensive procedure has been provided by the Code on the subject of Security covering various circumstances which the legislative wisdom could encompass at the time of enacting this law in its 21 provisions, divided into three parts.The following sections enumerate the provisions related to the topic:
A) Section 106– Security for keeping the peace on conviction.
B) Section 107– Security for keeping the peace in other cases.
C) Section 108-Security for good behaviour from persons disseminating seditious matters.
D) Section 109– Security for good behaviour from suspected persons.
E) Section 110– Security for good behaviour from habitual offenders.
In Madhu Limaye & Ors vs. Sub-divisional magistrate,Monghyr & Ors., the constitutional validity of chapter VIII was challenged and gist of the chapter that it is for prevention of crimes and prevention of public tranquillity and to curb breach of peace was held.
A) Section 106: Security for keeping the Peace on Conviction :
1. Section 106 of the Code of Criminal Procedure provides that a Court of sessions or a Magistrate of the First Class may, at the time of passing sentence on a person convicted of certain specified offences, order him to execute a bond for keeping the peace for any period not exceeding three years. It differs from Sections 107 to 110, as the order must be passed at the same time when there is a conviction and passing of a sentence. The court may order the bond to be executed with or without sureties.
2. The offences in connection with which security can be taken under the section are:-
a. Except an offence punishable under section 153 A or section 153 B or section 154, any offence punishable under chapter VIII of the Indian Penal Code,
b. Offences consisting of, or including assault or using criminal force or committing mischief;
c. Offences of criminal intimidation
d. Any other offence which caused or was intended or known to be likely to cause a breach of peace.
3. In passing an order under section 106 of the Code of Criminal Procedure, it has to be seen, not whether the persons concerned did commit a breach of the peace, but whether they were convicted of an offence which necessarily involves a breach of the peace.
4. Under section 106 evidence of past conduct is not legal evidence for an order.
5. Section 106(3) provides, that, if the conviction is set aside on appeal or otherwise, the bond executed shall become void. Also, the Appellate Court can, while upholding the conviction for the specific offence, set aside the order for security passed against the accused.
6. Under sub-section (4), power is given to the appellant court and the High Court in revision to demand security under the section.
(i) In prosecutions for any of the offences referred to in clauses (a), (b) and (c) above the need to move the trial Magistrates to bind over the accused concerned under Section 106 should be carefully examined and timely action taken in cases in which it is warranted. In respect of persons so bound over, rowdy sheets should be opened and their movements periodically checked and noted. Amongst other information, the names and addresses of the sureties should be mentioned in the sheets.
ii) If during the term for which an accused is bound over under Section 106, breaks the peace, steps should promptly be taken against him and his sureties and the Court moved to forfeit their bonds.
Section 107 OF Cr.P.C – Security for keeping the peace in other cases
(1). An Executive Magistrate who is informed 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 or disturbance of the public tranquillity, may, under-Sub-Section (1) of Section 107 of the Code of Criminal Procedure require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for a period not exceeding one year.
(2) (a) Section 107 is thus an effective means for preventing breaches of the peace or disturbances of public tranquillity in connection with religious processions, festivals, fairs, elections, political movements or other disputes between factions. It is not essential in every case that there should be two parties against each other. It must however, be clear that a breach of the peace is imminent, unless averted by proceedings under the section.
(b) Before starting proceedings under this section, the Police should collect evidence, oral and documentary, of persons (including Police Officers) acquainted with the circumstances of the case, regarding:
(i) The specific occasion on which the breach of the peace is anticipated;
(ii) The existence of a cause, quarrel or other circumstances which is likely to lead to the breach and the period of its duration;
(iii) The declaration of the parties indicating their determination to carry out, or to prevent, certain things in connection with the subject-matter of the quarrel;
(iv) The strength and the following of the party or parties, and
(v) Attempts made for conciliation with their results.
(c) It is not necessary to record elaborate statements of witness, short notes being sufficient. However, the provisions of Section 162 of the Code of Criminal Procedure are not applied to any statements or notes made in connection with such an enquiry. In fact, the enquiry is not governed by any of the provisions of Chapter XII of the Code of Criminal Procedure.
(3)Section 151 of the Code of Criminal Procedure empowers a Police Officer to arrest without warrant any person designing to commit a cognizable offence, if, in his opinion, the commission of the offence cannot otherwise be prevented. If, then, action under section 107 is contemplated against the arrested person, he may be produced before an Executive Magistrate for taking action.
The Magistrate may, under Section 116 order the execution of an interim bond, with or without sureties, for keeping peace until the conclusion of the inquiry may detain him in custody until such bond is executed or, in default to execution, until the inquiry is concluded.
The provisions of Chapter XXXIII of the Code of Criminal Procedure relating to bail do not apply to an order of detention passed under Sub-Section (4) of Section 107 Cr.P.C or Sub- Section (3) of Section 116 Cr.P.C. any person who has been arrested by the Police under section 151 of the Code of Criminal Procedure for the initiating of security proceedings or against whom security proceedings have already been started, is as a rule entitled to be released on bail under Section 436 Cr.P.C. But the proviso to Section 436 states that “nothing in this section shall be deemed to affect the provisions of Sub-Section (3) of Section 116 Cr.P.C. These are, therefore special provisions which are not affected by Section 436, 437, 439 and 440 Cr.P.C.
Thus, superior courts interfere in the matter of release on bail with an order passed by a competent Magistrate acting under Sub-Section (4) of Section 107 Cr.P.C. This, obviously, is a very useful provision for those entrusted with the task of maintaining law and order and may well be resorted to for the detention of person arrested under Section 151 Cr.P.C., if that is considered necessary for the public safety or in the interest of the public peace.
Section 108 of CrPC Security for good behaviour from persons disseminating seditious matters:
1) When any Executive Magistrate receives information that there is within his local jurisdiction any person who, within or without such jurisdiction.-
(i) In any case either orally or in writing or in any other manner, intentionally disseminates or attempts to disseminate or abets the dissemination of.-
(a) Any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 295A of the Indian Penal Code ( 45 of 1860 ), or
(b) Any matter concerning a Judge who acts or purports to act in the discharge of his official duties which amounts to criminal intimidation or defamation under the Indian Penal Code.
(ii) In any case is making, producing, publishing or keeping for sale, imports, exports, conveying, selling, letting to hire, distributing, publicly exhibiting or in any other manner is putting in circulation any obscene matter such as is referred to in section 292 of the Indian Penal Code ( 45 of 1860 ), and the magistrate opines that there is sufficient ground for proceeding, then he may, in the manner provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, with regard to his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit.
(2) It is to be kept in mind that under this section no proceeding shall take place against the editor, proprietor, printer or publisher of any publication which is registered under, and edited, printed and published in conformity with the rules laid down in the Press and Registration of Books Act, 1867 (25 of 1867), with reference to any matter contained in such publication except by the order or under the authority of the State Government or some officer empowered by the State Government in this behalf.
Section 109 of CrPC– Security for good behaviour from suspected persons:
In cases where any Executive Magistrate receives information that within his local jurisdiction there is a person taking precautions to conceal his presence and that there are reasons to believe that it is being done by him with a view to committing a cognizable offence, the Magistrate, in such case may in the prescribed manner, may require such person to prove and show cause that why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit.
Before a person can be proceeded against under Section 109 of the Code of Criminal Procedure, he must be found to be taking precautions to conceal his presence and there must be reason to believe that he is taking the precautions with a view to committing any offence. Merely because a person hid his face by means of a cloth when his presence was noticed by somebody going on the road at midnight, it cannot be said that he was taking precautions to conceal his presence.
Again, from the mere fact that at the sight of the Police Officer he began to move briskly and when called out he ran, it cannot be said that he was taking precautions to conceal himself. It has also been held that by mere possession of a crow-bar by a person without any precautions being taken to conceal his presence, the requirements of Section 109 (a) of the Code of Criminal Procedure cannot be said to have been satisfied. The person proceeded against must have taken precautions to conceal his presence with a view to committing an offence. Mere disinclination for the society of the police amounts to no concealment. Mixing with the crowd or moving in and out of the crowd or ‘dashing’ into it in a railway shed does not amount to taking precautions to conceal one’s presence. 2137.
The following illustrations are given as examples of cases coming under Section 109 (a) of the Code of Criminal Procedure.
(i) A person concealing himself at night with his companions in hedges near a village, giving wrong name and address and being unable to explain his presence in hedges at night with house-braking implement and refusing to disclose the identity of his companions who had escaped into jungle.
(ii) The respondent giving false name and address to the police was seen attempting to feel the pockets of crowds at the railway station, appearing originally at 9 a.m. and suddenly disappearing for two hours and re-appearing at 11 a.m. 2138. As regards concealment, it has been held that it need not be continuous. Even a single attempt at concealment may be enough. 2139. Proceedings under both the sections (Section 109 and 110 of the Code of Criminal Procedure) cannot be taken against one and the same individual at one and the same time.
Reports under Section 109 should be submitted before the Magistrate (Executive), observing the following principles :-
(i). Once information is laid before the Magistrate, it cannot be withdrawn. Section 321 of the Code of Criminal Procedure has no application to security proceedings;
(ii). Copies of statements of witness recorded by the Police Officer need not be provided to the respondent, as the information laid before a Magistrate is not a Police report coming within the purview of Section 173(4) of the Code of Criminal Procedure; and
(iii). Under Section 116(2) of the Code of Criminal Procedure as for as a summons case has been prescribed for all inquiries to Sections 107, 109 and 110 of the Code of the Criminal Procedure. 2141. The Superintendent of Police should specially ensure that security proceedings initiated under Sections 107, 109 and 110 of the Code are concluded with utmost expedition in the courts. The Senior Superintendent of Police (Law & Order) should verify this during the monthly crime meeting.
The court before which proceedings are initiated should be promptly moved for an order under Sub-Section (3) of Section 116 of the Code pending completion of the inquiry under Sub- Section (1) of the Section. The Superintendent should ensure that such action is unfailingly taken by the officer conducting prosecution or by the concerned Station House Officer.
When there are objections to raise the sureties tendered in pursuance of an order made under (3) of Section 116 or Section 117 of the Code, the Police should raise without delay.
Further inquiry cannot be ordered under Section 398 of the Code of Criminal Procedure into the case of a person discharged under Section 118 of the Code of Criminal Procedure. In Such cases, the District Magistrate has power under Section 401 of the Code of the Criminal Procedure to report for the order of the High Court.
SECTION 110 OF CR.P.C. – Security for good behaviour from habitual offenders:
Security cases under section 110 of the Code of Criminal Procedure against local habituals should be built up on details recorded in the Station Crime History as the result of careful watching by the Police. It should be very exceptional for a local criminal for whom a History Sheet has not been opened, to be put up under these sections.
The section requires that the person proceeded against should be within the local limits of the Magistrate’s jurisdiction (Executive Magistrate) at the time when proceedings are taken against him. Otherwise, the Magistrate can not take action under this section. Temporary presence within the limits of the Magistrate’s jurisdiction is sufficient. But, then the presence must be at the time when the proceedings are initiated.
(1) The object of this section also is preventive and not punitive, and action under it is not intended as a punishment for past offences. It is aimed at protecting society from dangerous characters against the perpetration of crimes by placing them under such substantial but not excessive security as would prevent them from resorting to evil courses.
(2). To sustain a charge under clause (a), the person proceeded against must be proved to be by habit a robber, house-breaker, thief or forger. The word “habit” implies a tendency or capacity resulting from the repetition of the same acts.
(3). To substantiate a charge under Clause (b), it must be proved that the person proceeded against is a habitual receiver of stolen property knowing the same to be stolen.
(4). Clause (c) of section 110 Cr.P.C. is designed to meet the cases of persons who assist the thief after theft by harbouring him, protecting him from discovery and arrest, and helping him to dispose of his property. The acts, which amount to harbouring must be done with an intention of screening the offender from legal punishment or of preventing him from being apprehended.
(5). Clause (d) of section 110 Cr.P.C. prescribes certain offences, the habitual commission or abetment of which, or the attempt to commit which, is ground for taking action under this section.
(6). Clause (e) contemplates taking security when one habitually commits or attempts to commit or abets the commission of offences involving breach of the peace. The following are the offences within the purview of this clause:
(i) Offences punishable under Chapter VIII of the Indian Penal Code, other than those punishable under sections 143, 149, 153-A and 154, Indian Penal Code,
(ii) Assault or other similar offences, and
(iii) Criminal intimidation.
This can be effectively used in curbing the activities of factionists.
(7). Under Clause (g), “a man of desperate and dangerous character” means a person who shows such a reckless disregard for the safety of the person or property of his neighbours that his being at large without security would be detrimental to the community.
(8). Section (2) of Section 41 Code of Criminal Procedure empowers the Police to arrest without certain classes of habitual offenders described in section 110 of the Code of Criminal Procedure. Proceedings under Section 110 of the Code of Criminal Procedure may follow an arrest under Section of 41 (a) of Code of Criminal Procedure.
Sub-Section (4) of Section 116 Cr.P.C. Provides that the fact that a person is a habitual offender may be proved by evidence of general repute or otherwise. The general reputation of a man is that which he bears amongst the people in the place in which he lives. Vague and general statements that a man is a habitual offender are not sufficient evidence on which he is liable to be bound over under Section 110 Cr.P.C. It is very important that evidence of bad repute should be reliable. It is essential that witnesses should be able to give intelligent reasons for their believing the respondent to be a bad character. Hearsay evidence amounting to general repute is admissible for the purpose of proceedings under Chapter VIII of the Code.
Although witnesses may be examined as to the respondent’s general character, their testimony is not of much value as to the habits of a suspected person, unless they can, in support of their opinion, adduce instance of the misconduct imputed. When the person against whom proceedings under Section 110 Cr.P.C. are instituted for being a habitual offender, a well known resident of the locality and his fellow citizens though not living in his immediate neighbourhood, are competent witnesses to his general repute. General repute can be proved not only by such opinion evidence as is referred to above, but also by letting in other evidence which is sanctioned by the general law as enunciated in the Evidence Act. Such evidence may be evidence of specific acts, previous convictions or association with bad characters. A Police Officer who deposes to the reputation of the respondent should give the basis of his knowledge and point out how he came to consider him a man of bad character.
Previous convictions are admissible in evidence, but they are not conclusive proof in a case under Section 110 Cr.P.C. Its evidentiary value increases when there is also evidence of general repute of definite acts subsequent to the respondent’s release from jail. These acts should comprise preferably reported instances.
The History Sheet is a privileged document and is not generally produced in evidence. Information contained in it should be proved by the evidence of persons who have direct and first-hand knowledge of them.
If the respondent is an ex-convict, the officer-in-charge of the Police Station can also put in evidence and prove a statement showing a marked decrease in crimes when the respondent was in jail and marked increase when he was outside.
When evidence of suspicion against the respondent in certain crimes is spoken to by a Police Officer, he must substantiate his suspicion by giving cogent and convincing reasons. A vague suspicion is not enough to warrant the respondent being bound over under Section 110 Cr.P.C. Evidence of misconduct should relate to recent incidents and not acts committed by the respondent years ago.
Where several persons are jointly put up under Section 110 Cr.P.C. evidence of the offences by each of them should not be admitted as against others unless concert between them is shown.
Frequently Asked Questions:
1)What does the word ‘habitual’ represent in section 110 of CR.PC?
In Vijay Narain Singh vs State of Bihar, the Supreme Court clarified the meaning of the term ‘Habitual’.
The expression refers to repetition and continuation and hence means acts which are repetitive in nature and hence would not include any single act or omission.
2) What are grounds to prove Section 107 as intra-vires to constitution?
1. Section 107, it is clearly mentioned that the Executive Magistrate must have information for a certain person potentially disturbing public tranquillity or breach of peace. However the prerequisite remains the same that the Magistrate needs to be satisfied by such information about the said person and hence, (s)he must issue a notice to show cause under Section 111 Code of Criminal Procedure.
2. The notice must contain specific details of the information received and the consequent reasons for show cause. It is necessary to keep in mind that the Magistrates should not only rely on the information received, but they also need to inquire into the matter themselves or by any other reliable agency or they can even call for a detailed report from the police.
The statue may be intra-vires to the Constitution but it does lack specificity in terms of remedies available against illegal arrest under the said section and the possibility of the same cannot be denied. The real life example corresponding to this provision is the arrest of Anna Hazare on August 2011 under Sections 107 and 151 of Cr.P.C which was viewed as unconstitutional, against democratic principles and this was in no way different to the situation during National Emergency, by the retired IPS Officer- Kiran Bedi
Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje
2)AIR 1984 SC 1334
3) 1971 AIR 2486