Security for Keeping the Peace in India

An Analytical Study of the Law Pertaining to Security for Keeping the Peace in India

Introduction

The maintenance of peace and public order is a fundamental obligation of the State, essential for the well-being of its citizens and the orderly functioning of society.[4] In India, the legal framework for ensuring security for keeping the peace is primarily enshrined in Chapter VIII of the Code of Criminal Procedure, 1973 (CrPC). These provisions are preventive rather than punitive, designed to preempt breaches of peace and disturbances to public tranquility by requiring individuals, from whom such conduct is apprehended, to furnish security. This article undertakes a comprehensive analysis of these legal provisions, examining their constitutional basis, statutory contours, procedural safeguards, and judicial interpretation, drawing significantly from the provided reference materials.

Constitutional Moorings and Judicial Scrutiny

The provisions empowering magistrates to demand security for keeping the peace, particularly Section 107 and other sections in Chapter VIII of the CrPC, have been subjected to constitutional scrutiny, primarily concerning their impact on fundamental rights guaranteed under Article 19 of the Constitution of India. The Supreme Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr[2] extensively examined the constitutionality of Section 144 CrPC and Chapter VIII (which includes Sections 107-110). The Court upheld these provisions, reasoning that the restrictions they impose are reasonable and fall within the permissible limits set by Article 19(2) to (5) in the interests of public order.[2]

The Court in Madhu Limaye emphasized that while fundamental freedoms are essential, they are not absolute and can be subjected to reasonable restrictions to maintain societal stability.[2] It was recognized that preventive justice, as envisaged by these sections, is crucial for averting potential breaches of peace.[2] However, the judiciary has consistently underscored that such powers must be exercised with caution and strict adherence to procedural safeguards to prevent their misuse and to protect individual liberty. As observed by the Apex Court in the same judgment, "the liberty of the person is involved and the law is rightly solicitous that this liberty should only be curtailed according to its own procedure and not according to the whim of the Magistrate concerned."[7], [9], [10], [11] This principle forms the bedrock for evaluating the application of security proceedings.

Statutory Framework: Chapter VIII of the Code of Criminal Procedure, 1973

Chapter VIII of the CrPC, titled "Security for Keeping the Peace and for Good Behaviour," comprises Sections 106 to 124. These sections delineate the circumstances and procedures for demanding security.

Security for Keeping the Peace on Conviction (Section 106 CrPC)

Section 106 CrPC empowers a Court of Session or a Court of a Magistrate of the first class to order a person to execute a bond, with or without sureties, for keeping the peace for a period not exceeding three years, at the time of passing a sentence on such person upon conviction for certain specified offences.[8] These offences typically include those punishable under Chapter VIII of the Indian Penal Code (now Chapter XI of the Bharatiya Nyaya Sanhita, 2023, as referenced in *Ashok Tiwari*[8]), offences involving assault, criminal force, mischief, criminal intimidation, or any other offence that caused or was intended or likely to cause a breach of the peace.[5], [8]

An order under Section 106 CrPC can also be made by an Appellate Court or by a Court exercising its powers of revision.[8], [16] If the conviction is set aside on appeal or otherwise, the bond so executed becomes void.[5], [8] This power is judicial in nature, exercised by criminal courts post-conviction, distinguishing it from the preventive powers exercised by Executive Magistrates under other sections of Chapter VIII.[14]

Security for Keeping the Peace in Other Cases (Section 107 CrPC)

Section 107 CrPC is a cornerstone of preventive justice, empowering an Executive Magistrate to act when they receive information that any person is likely to commit a breach of the peace or disturb public tranquility, or do any wrongful act that may probably occasion such breach or disturbance.[5], [6] If the Magistrate is of the opinion that there is sufficient ground for proceeding, they may require such person to show cause why they should not be ordered to execute a bond, with or without sureties, for keeping the peace for a period not exceeding one year.[5], [6], [8]

Proceedings under Section 107 CrPC can be initiated if the place where the breach of peace or disturbance is apprehended is within the local jurisdiction of the Executive Magistrate, or if the person likely to commit such acts is within their jurisdiction.[6] The objective is purely preventive, aimed at individuals whose conduct suggests a reasonable apprehension of future disturbances.[9], [10], [11] As emphasized by various High Courts, these proceedings should not be transformed into a means of persecution.[7], [9], [10], [11] The separation of powers ensures that this executive function of maintaining public peace is entrusted to Executive Magistrates.[14]

Other Provisions for Security (Sections 108-110 CrPC)

While Section 107 deals with security for keeping the peace, Sections 108, 109, and 110 CrPC provide for security for good behaviour from persons disseminating seditious matters, from suspected persons (vagrants, those with no ostensible means of subsistence or who cannot give a satisfactory account of themselves), and from habitual offenders, respectively. These provisions also fall under the purview of Executive Magistrates and are guided by similar principles of preventive justice and procedural fairness. The overarching aim, as noted in *Dharmar v. Superintendent Of Police And Others*, is to entrust the law enforcing agency with executive powers under Chapter VIII CrPC to maintain peace and good behaviour.[19]

Procedural Safeguards and Fair Hearing

The exercise of powers under Chapter VIII CrPC, particularly Section 107, is circumscribed by mandatory procedural safeguards designed to protect individual liberty from arbitrary action.

The Mandate of Section 111 CrPC

Section 111 CrPC is of paramount importance. It mandates that when a Magistrate acting under Section 107, 108, 109, or 110 deems it necessary to require any person to show cause, they shall make an order in writing. This order must set forth: (i) the substance of the information received, (ii) the amount of the bond to be executed, (iii) the term for which it is to be in force, and (iv) the number, character, and class of sureties (if any) required.[15]

The Supreme Court in Madhu Limaye stressed that action under Section 107 must be taken "in the manner here-in-after provided," indicating that departure from the prescribed procedure is not permissible to any substantial extent.[7], [9], [10], [11] This is because, as the Court noted, "Since the person to be proceeded against has to show cause, it is but natural that he must know the grounds."[7], [10] Non-compliance with Section 111 CrPC has been consistently held by various High Courts to vitiate the entire proceedings.[7], [9], [10], [11], [15]

Inquiry as to Truth of Information (Section 116 CrPC)

Once an order under Section 111 CrPC has been read or explained to the person present in court, or served upon them, the Magistrate must proceed to inquire into the truth of the information upon which the action has been taken (Section 116 CrPC). This inquiry is to be made, as nearly as may be practicable, in the manner prescribed for conducting trials and recording evidence in summons cases.[15]

A crucial aspect of Section 116 is sub-section (6), which stipulates that the inquiry shall be completed within a period of six months from the date of its commencement. If not so completed, the proceedings shall stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs.[12], [15] The Andhra Pradesh High Court in Yedla Mohan Reddy v. State Of A.P. quashed proceedings where the inquiry was not completed within six months and no special reasons were recorded for continuation, emphasizing the time-bound and preventive nature of these provisions.[12] The Kerala High Court in Muhammedkutty Thomas v. State Of Kerala also discussed the commencement of inquiry for the purpose of Section 116(6), noting that orders under Chapter VIII, though appearing administrative, are "really judicial in character," as held in Madhu Limaye.[15]

Application of Mind and Avoidance of Mechanical Orders

A recurring concern highlighted by courts is the mechanical issuance of show-cause notices without due application of mind by the Magistrate. The Madhya Pradesh High Court in Ashok Kumar Jain v. The State Of Madhya Pradesh considered a challenge to a show-cause notice for security for keeping peace on the grounds that it was issued in a "cyclostyle manner without applying mind to the facts of the case."[17] This underscores the judicial expectation that Magistrates must be satisfied about the existence of sufficient grounds before initiating proceedings, a principle also implicit in the requirement of Section 111 CrPC.[15]

Limitations on Detention Pending Inquiry

The power to detain a person pending inquiry under these provisions is also strictly regulated. In Divyajit Mehta v. S.S Katara And Others, the Gujarat High Court clarified that an Executive Magistrate, before whom persons arrested under Section 151 CrPC (arrest to prevent the commission of cognizable offences) are produced, has no power under Section 107 CrPC to ask such persons to furnish bail or direct them to be sent to jail *before* proceedings under Section 111 CrPC are initiated by making a formal order.[13] Section 107 proceedings are about taking bonds for security, not about accusing someone of an offence at that preliminary stage.[13]

The Concept of "Public Order" in Security Proceedings

The terms "breach of the peace" and "disturbance of public tranquility" are central to Section 107 CrPC. While distinct from "public order" in the context of preventive detention laws like the Defence of India Rules (as discussed in Ram Manohar Lohia Petitioner v. State Of Bihar And Another[1]), the underlying principle of maintaining societal calm is shared. In Ram Manohar Lohia, the Supreme Court meticulously distinguished between "public order" and "law and order," holding "public order" to be a narrower concept encompassing public safety and tranquility at large, whereas "law and order" is broader, covering lesser disturbances.[1]

The Supreme Court in Madhu Limaye, while upholding Section 144 CrPC, also delved into the interpretation of "public order," adopting a nuanced view that distinguished it from mere breaches of "public tranquility" but acknowledged its relevance to the restrictions permissible under Article 19.[2] The Court in Ramlila Maidan Incident, In Re reiterated that "‘Security of the State’, ‘law and order’ and ‘public order’ are not expressions of common meaning and connotation," and that maintaining public peace, safety, and order is an unequivocal duty of the State.[4] While Section 107 CrPC may be invoked for acts likely to disturb "public tranquility," which might be of a lesser gravity than those affecting "public order" in its entirety, the objective remains the preservation of peace. The State's function includes the maintenance of internal security, which, as noted in Caltex (India) Ltd., extends beyond mere law enforcement to ensuring conditions where peace prevails.[3]

Challenges and Judicial Concerns

Despite the clear legal framework and procedural safeguards, the application of security provisions under Chapter VIII CrPC has faced criticism and judicial scrutiny due to potential misuse and practical difficulties.

Potential for Misuse

Several High Court judgments reflect concerns that proceedings under Section 107/116 CrPC can be transformed into tools of persecution or harassment. The Allahabad High Court in cases like Dr. Sandeep Sachan, Ran Vijay Singh, Devendra Vikram Maurya, and Saira Raj has repeatedly cautioned that these preventive measures should not be used "at the sweet will of the police or other persons acting mala fide."[7], [9], [10], [11] It has been stressed that unless absolutely necessary, such proceedings should not be resorted to, as they often cause "unnecessary harassment to the public who run to the Court at the costs of their own vocations of life."[9], [11]

Lethargic Conduct of Proceedings

Another significant concern is the "most lethargic and lackadaisical manner" in which proceedings under Section 107/116 CrPC are often conducted by Executive Magistrates, causing "harassment to public beyond measure."[9], [11] The statutory time limit under Section 116(6) CrPC is a legislative response to mitigate such delays, but its effective enforcement remains crucial.[12]

It is also important to note that proceedings under Section 107 CrPC are distinct and independent from actions under other special preventive laws. As held by the Kerala High Court in YASAR ARAFATH AM v. STATE OF KERALA, the scope of proceedings under Section 107 CrPC (security for keeping peace and public tranquility) is different from, for instance, proceedings under the Kerala Anti-Social Activities (Prevention) Act.[18]

Conclusion

The provisions for security for keeping the peace under Chapter VIII of the Code of Criminal Procedure, 1973, represent a critical legal mechanism for preventive justice in India. They aim to strike a delicate balance between the State's duty to maintain public order and tranquility and the imperative to safeguard individual liberties. The Supreme Court in Madhu Limaye affirmed the constitutional validity of these measures, emphasizing that the restrictions imposed are reasonable and in the interest of public order.[2]

However, the efficacy and fairness of these provisions depend significantly on their implementation. The judiciary has consistently highlighted the mandatory nature of procedural safeguards, particularly the requirements under Section 111 CrPC for a clear statement of grounds and the time-bound inquiry under Section 116 CrPC. Concerns regarding the mechanical application of these laws, potential for misuse, and delays in proceedings underscore the need for vigilance by Executive Magistrates and continuous judicial oversight. Ultimately, the law pertaining to security for keeping the peace must be administered not as a tool of oppression, but as a judicious measure to ensure a peaceful and orderly society, always respecting the due process and fundamental rights of individuals.

References