Context

Abuse of the criminal justice machinery is rampant in India. People are often wrongly implicated in criminal cases and deprived of their personal liberty. India – in fact – bears the dubious distinction of being a country with one of the highest number of pending criminal cases (relative to civil cases), where more than 70% of all cases pending in Indian Courts are criminal cases. The situation, therefore, is quite dismal.

But the fact that an arrested person has to be finally produced in a court of law and the matter comes under judicial scrutiny is a huge respite and a big check on arbitrariness of police.

But there’s a class of cases which completely escape judicial scrutiny. This is where the chances of abuse of process of law are the most. I’m talking about Chapter – 8 of the CrPC which empowers Special Executive Magistrates (“SEMs”) (who are often ACPs/DCPs/Addl. DCP/CPs) to conduct certain inquiries and pass orders depriving people of their personal liberty and detaining them preventively (even before any offence has been committed) with a view to maintain public order and tranquility.

Powers of preventive arrest

Section 149 of the CrPC is a good place to start here.

As per S.149 of the CrPC – A police may interpose for the purpose of preventing, and shall, to the best of his ability, prevent the commission of any cognizable offence. 

Further, as per Section 150 of the CrPC, every police officer receiving information of a design to commit any cognizable offence is required to communicate such information to the police officer to whom he is subordinate and to any other officer whose duty it is to prevent or take cognizance of the commission of any offence.

So there’s a general duty to try and prevent offences wherever possible and nip criminal designs in the very bud.

Section 151 of the CrPC takes this further and empowers the police to even arrest preventively. It provides:

A police officer knowing the design to commit any cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. [S.151(1) CrPC] 

However, there is an important safeguard : No such person arrested shall be detained in custody for a period exceeding 24 hours from the time of his arrest unless his further detention is required or authorized under any law. [S.151(2)] 

Therefore, if after the arrest : no proceedings are instituted against such arrested person either to demand security bond from her (more on this later in the column)  or for launching proceedings against her as an accused person in connection with an offence, she must be discharged.

Therefore, once a preventive arrest is made u/s 151(1) of the CrPC, it should either lead to : security proceedings against him (S.107 onwards) or an arrest/detention for a cognizable offence. In absence of these two, the person must be released/discharged.

A preventive arrest u/s 151 of the CrPC often is the first step and then leads to initiation of what are colloquially termed as ‘security proceedings’ under Section 107 – 122 CrPC.

Section 107 of the CrPC, in this regard, provides:

What becomes clear on a bare perusal is that:

1. The basis of asking someone to furnish a bond should be some information that the SEM receives;
2. information should demonstrate that a person is likely to commit breach of peace or disturb public tranquility.
3. leads to formation of opinion (objective) that such a person should be asked to show cause as to why she should not be asked to furnish bonds for ‘keeping peace’
4. for a period of one year or less.

Objective of S.107 of the CrPC

The underlying objective of this section is preventive and not punitive. 

This section is designed to enable the Magistrate to take measures with a view to prevent commission of offences involving breach of peace or disturbance of public tranquility.

The object of this section is that it can be invoked in emergent situation when prompt action is necessitated to deal with threatened apprehension of breach of peace.

Wide powers have been conferred on the Executive Magistrates and as the matter affects the liberty of the subject who has not been found guilty of an offence, it is essential that the power should be exercised sparingly and strictly in accordance with law.

The courts have been very vigilant in dealing with action of the executive in relation to these provisions. It is evident from decisions like the one in Medha Patkar v. State of MP [2008 Cri LJ 47 (MP)], wherein the MP High Court awarded compensation to the accused as the government sent them to prison for failure of furnishing bond in a case wherein there was nothing on record to show that there was apprehension of breach of peace.

Similarly, the Delhi High Court in Keshar Kumar vs State [2008 Cri LJ 233 (Del)] found the arrest and detention of the petitioner invoking Section 107 (in what was essentially a civil dispute) to be illegal and ordered compensation to be paid to the petitioner.

The Court reiterated that the sine qua non for institution of proceedings under this section is that the Magistrate should be of the opinion that there is sufficient ground for proceeding against the person informed against. And the Magistrate is bound to record his/her opinion as contemplated by Section 107 and thereafter is to prepare the notice under Section 111.

In Babaji Sahoo v. State of Orissa [1989 Cri LJ 1872 (Ori)], it has been held that while forming the opinion that there is sufficient ground for proceeding under Section 107, the Executive Magistrate will be guided by the information received by him. However, it is not necessary that information contemplated by the section must be gathered from legal evidence. It may be from any public or private source.

Other cases where security/bond can be sought

Sections 108, 109 and 110 provide for taking security for good behaviour from: 

◼Persons disseminating seditious matters, or matters amount to intimidation or defamation of a judge (for acts falling within “official duty”); or 

◼Suspected persons (person taking precautions to conceal his presence); or 

◼Habitual offenders (showing consistent course of conduct)

◼Given the nature of these proceedings and the requirement of ’sifting of evidence in a judicial manner’, initially these powers were vested only in judicial magistrates, but later, on grounds of expediency, they were given to executive magistrates (where they still remain).

Procedure for initiating action u/s 107-111 of the CrPC

Section 111 CrPC provides the procedure. It reads:

◼If action u/s 107-110 is necessary, the Executive Magistrate shall ask the person to show cause as to why she should not be asked to furnish a bond. Pursuant to S.111, an SEM has to:

◼Make an order;

◼In writing; 

◼Setting forth the substance of the information received, 

◼The amount of the bond to be executed, 

◼The term for which it is to be in force, 

◼And number, character, and class of sureties required. 

◼Since the person concerned has to  “show cause” – he/she must know the grounds that gives rise to apprehension of a possible breach of peace or disturbance of public tranquility.  

◼Essence : It should be a proper notice that allows a person to take an informed defence. 

◼Adhere to Natural Justice. No-one should be condemned unheard.

◼Avoid cyclostyled formats or mechanically reproduced formats.

◼Remember : This is only a show cause and NOT A DETERMINATION OF GUILT. 

What after the notice u/s 107 of the CrPC?

◼Section 112 CrPC:- How to communicate the order. 

◼If the person is in Court, it shall be read over to him and substance explained to him. 

◼If the person is not in Court, then summons should be issued. [if the person does not comply with the summons, warrants u/s 87 CrPC may be issued] 

◼If the person is in custody in some other case, production warrants may be issued and the person asked to be produced.

◼If the magistrate believes on the basis of information received by him that immediate arrest is needed, the magistrate may also issue a warrant of arrest [Proviso to S.113 CrPC]

◼Summons should be accompanied with a copy of the order u/s 111 [S.114 CrPC].

Dispensation of personal appearance of the Accused.

Inquiry as to the truth of the information.

◼Section 116 of the CrPC is important in this regard. It reads:

◼A reading of the above reveals that the Executive Magistrate has to: 

◼Read out order u/s 111 to the person concerned.

◼Inquire into the truth of that information; 

◼Take such further evidence as is necessary;

◼(Same process as in conduct of a summons trial);

In the process of doing this, the SEM has the power to seek an interim bond; a bond that stays effective during the pendency of the inquiry proceedings.

◼Section 116(3) – THE CONCEPT OF INTERIM BOND AND DETENTION. It reads:

Section 116 further reads:

◼It is clear that this inquiry has to be completed within 6 months, and if not completed, to be terminated, unless there are special reasons which are recorded in writing. (This is subject to orders by the Ld.Sessions Judge, who may still terminate the inquiry.)

◼If the person has been in custody for this period, the proceedings terminate on the expiry of 6 months. 

RESULT OF THE INQUIRY AS TO THE TRUTH OF THE INFORMATION. Section 117 of the CrPC

The above inquiry is followed by an Order.

◼Section 117 : Order to give security:

◼If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate shall make an order accordingly: 

◼Provided that …..

◼(b) the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive;

◼On the content and nature of this order, Section 354(6) CrPC provides that every order u/s 117 CrPC shall contain : the point or points of determination, the decision thereon, and the reasons for the decision and copy has to be supplied to the person concerned.  

◼Appeal against such order lies with Court of Session (S.373).

Section 118 : Discharge of person:

Format of the bond to be executed u/s 107 of the CrPC:

Bonds u/ss 108-110 of the CrPC:

Other misc. provisions relating to security proceedings:

Section 120 of the CrPC reads :

◼Section 121 – Power to reject sureties considered ‘unfit’. 

◼Section 122 – Imprisonment in default of security.  

◼If a person directed to give security, does not give security, he shall be committed to prison until such period he gives security to the Court or the Magistrate who made the order requiring it. 

◼If a person who has given security acts in breach thereof, after reasons to be recorded in writing, he can be arrested and detained till the expiry of the period of the bond. 

◼If a person ordered to security for a period > 1 year, does not give security, he shall be detained pending orders of the Sessions Judge and proceedings be laid before that Court. 

◼Sessions Court then can decide the issue. 

◼Section 123 – DM and CJM’s power to release persons imprisoned for failing to give security. 

The High Court on abuse of these sections and judicial safeguards.

The Delhi High Court judgment in Aldanish Rein v. State (2018) SCC Online Del 12207 is instructive:

◼Facts in brief: 

◼‘A’ was booked under Sections 107 and 151 of the CrPC, and, thereafter, produced before the Special Executive Magistrate, Jahangirpuri. 

◼SEM, without supplying any documents, or even a copy of the order, remanded ‘A’ to judicial custody. 

◼Relatives of ‘A’ were not informed of his arrest. 

◼Later, when questioned by the HC, the SEM went on to justify his actions in the following words:

The format for the notice used by the SEM was as follows:

◼Court held the proceedings to be illegal and laid down certain guidelines.

Guidelines in Aldanish Rein

◼The SEM should stress upon recording of statements of the investigating officer/witness before initiating any proceedings u/s 107/116/151 CrPC. 

◼Magistrate should not order furnishing of surety in the absence of statements of IO/Witnesses. 

◼Magistrate should not send the detenue to jail for failure to furnish securities until statements of IO/Witnesses have been recorded. 

◼Magistrate should not sign the order in a mechanical manner on a cyclostyled paper but it should be a reasoned order. 

◼Court also noted some Delhi Police standing orders in this regard: 

◼These have been noticed in the standing order No.189 of 2008 issued by the Commissioner of Police, Delhi on 11 th June 2008 as under:

◼”Similarly in the matter of Sanjeev Kumar Singh vs. State of NCT of Delhi – W.P (Crl) 264/2007, the Hon’ble High Court of Delhi, held that the S.E.M had exceeded his jurisdiction by not accepting the surety order for Rs.5000/- and later accepted surety of Rs.15000/- Despite recovery of a PAN card and visiting cards from arrested person, bail bonds were sent for verification which was not necessary. 

◼In W.P (Crl.) 2448/2007, Keshav Kumar vs. State, the Hon’ble High Court of Delhi had observed that while a perusal of the complaint did not disclose the commission of cognizable offence, but on the same complaint, police officials went to the petitioner’s house and arrested him U/S 107/151 CrPC. 

In this case also no reason was given by the S.E.M.as to why the bail bond and surety produced were not accepted on the same day in W.P (Crl.) 1392-2007 Purshottam Ramanani vs Government of NCT of Delhi, the Hon’ble High Court of Delhi had held that the informant who gave a call at “100‟ to the police and made a complaint about locks being broken was wrongly arrested U/S 107/151 CrPC and sent to jail whereas the appropriate course of action should have been action U/S 145 Cr PC. The Hon’ble High Court of Delhi had taken a suo motu action in Criminal Reference No. 01/07 and directed all detenues U/S 107/151 CrPC to be released on personal bond to avoid overcrowding of Tihar Jail.”

◼43. The instructions issued to the police officers in the said standing order read as under:

◼“All the police officers while dealing with cases U/S 107/151 Cr PC should keep in the mind the above mentioned guidelines/directions mentioned above before initiating any action. They must have the prior concurrence from the concerned ACPs I/C subdivisions before effecting any arrest U/S 151 Cr PC. This must be meticulously observed. The ACPs should not give their approval in mechanical manner but must act strictly as per the law/direction given by various courts to ensure that there is no misuse of these provisions of the law. The SEMs must realise the onerous responsibility they carry and act in a fair and transparent manner in accordance with guidelines laid down by the courts and summarised in this S.O.”

◼(i) As far as the NCT of Delhi is concerned, the Lieutenant Governor (LG) will consider setting up an oversight mechanism to periodically review the exercise of powers by the SEMs under Sections 107 and 151 Cr PC. Such mechanism can consist of retired District Judges. Corrective action requires to be taken to check the abuse of powers. The LG will also consider calling these public officials as Special Executive Officers rather than SEMs as the appellation Magistrate is likely to be mistaken for a Judicial Magistrate which SEMs clearly are not. They are, at present, invariably police officers who simultaneously function as ACPs.

◼(ii) Since the arrest is only ”preventive‟, the LG will consider issuing instructions to the prison authorities to create separate spaces within the jail so that the persons who are arrested are not mixed up with the other persons arrested for actual commission of offences.

◼(iii) The period of judicial custody under Sections 107/151 CrPC at any one given point in time, will never exceed more than seven (7) days. There must be a weekly review by the SEMs exercising the powers concerned, of the need to continue detention.

◼(iv) In particular, after directing the release of a person upon furnishing a personal bond and not insisting on surety where such a person is not in a position to furnish surety, the SEM’s task will not end. The SEM will keep the matter pending for follow-up on whether the person has actually been released on having furnishing a personal bond and / or surety. If within two days of the order of release, if a person has actually not come out of the jail, the SEM should inquire into the situation and pass further orders to ensure the release of such persons by either accepting a personal bond of such person and/or surety of a lesser sum, if at all, that can be afforded by such person.

◼(v) No order of remanding a person to a judicial custody can be passed by the SEM without satisfying himself:

◼(a) That the person arrested has been informed of his constitutional rights under Articles 20, 21 and 22 of the Constitution. The SEM should himself explain or have it explained to the person in his presence in a language understood by that person of the aforementioned constitutional rights.

◼(b) The SEM must ask the person arrested whether he has been informed, in the language understood by him, of the grounds of his arrest and this record this in the order that he is going to pass.

◼(c) The SEM will ask the person whether he wishes to engage a lawyer of his choice and also inform him that he can avail the services of a remand advocate who will remain present when these proceedings are being conducted.

◼(d) The SEM will allow the remand advocate to interact with the person arrested outside the hearing distance of the police officers who have got the person arrested in order to enable the remand advocate to obtain the necessary instructions.

◼(e) The SEM will ensure that the remand advocate is performing his functions as required under the LSAA i.e. he is also a person aware of the constitutional rights of a person arrested and will act accordingly.

◼(f) The SEM will record in his proceedings that all of the above provisions have been effectively complied with.

◼(viii) When a person is booked under Chapter-8 proceedings and asked to furnish surety bonds, the practice at present is to send the surety bonds to the concerned SHO for verification. The person is not released till such a verification is complete. Instead, it is directed that the person arrested should be released on his personal bond till such time the verification is complete instead of sending him to judicial custody.

◼(ix) A board should be placed outside the office of the SEM not only in English and Hindi but also in other languages spoken by a sizeable population in the area concerned which would display the requirements under law i.e. the Constitution, the Cr PC and the LSAA. It will caution the person arrested to beware of touts. The board will also display the name of the remand advocate along withhis/her contacts and details. The board will inform the person arrested that the amount to be filled in a bail bond is not to given in cash to anyone and that the SEM is not a Judicial Magistrate.

◼(x) The Superintendent of the Tihar Jail, the Rohini Jail and the MandoviJail will ensure that whenever a prisoner is received as a result of the judicial remand order of the SEM, such prisoner shall not be kept in the same ward or in the same place where other undertrials or convicts are kept, but in a separate wing and provided easy access to the legal aid counsel, particularly of lawyers from the DLSA.

The order in the landmark case of Madhu Limaye v. State (1977) 4 SCC 551:

The order passed by the SDM concerned, which finally came to be tested by the Constitution Bench of the Supreme Court:

◼The magistrate then required them to execute bonds under Section 117 CrPC. It appears that thereafter he kept on postponing the proceedings. Meanwhile, Limaye challenged his order before the Supreme Court.

◼The special bench set aside the order. 

◼The Supreme Court bench further held that such action was not in conformity with the procedure prescribed for summons trial, which postulates that after explaining the substance of the accusation the magistrate is to examine witnesses. The bench said, “It was not given to the magistrate to postpone the case and hear nobody and yet ask the petitioners to furnish a bond for good conduct.” It noted that none of the witnesses in the challan were examined, nor was any statement recorded and hence proceedings for asking for an interim bond were completely illegal.

Conclusion

Despite salutary judgments such as the one in Aldanish Rein (supra), the position on the ground leaves a lot to be desired. Proceedings u/ss 107-124 are still abused a great deal. Given the fact that these proceedings take place within police stations, and without scrutiny of trained judicial minds, abuse is rampant.

With the increase in numbers of judicial magistrates across the country, there may be merit in having judges try these matters, instead of SEMs.

And until then, it may be prudent to have these proceedings be conducted in earmarked courtrooms within district court complexes, so as to ensure that the persons accused can avail good defence counsel, and intervention of judicial courts, if needed.

Further, we’ve been given to understand that in certain parts of the country, persons who are not able to furnish a bond or allegedly act in violation thereof, are housed alongside other prisoners and not separately as directed by the Courts.

All of these aspects need to be examined with a view to prevent misuse of these sections.

Bharat Chugh

The Author thanks his colleagues Hamna, Zubia, Shubhashini, Maanish and Ritwik for their great research and inputs on this.