Section 109 CrPC and Section 128 BNSS: Security for Good Behaviour from Suspected Persons

Section 109 of the Code of Criminal Procedure, 1973 empowered an Executive Magistrate to initiate preventive security proceedings against a person believed to be concealing their presence with a view to committing a cognizable offence. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 128.

1. What did Section 109 CrPC provide?

This is an explanation of the historical statutory provision, rather than a claim that every act of concealment justifies proceedings. The original provision referred to an Executive Magistrate following substitution by Act 63 of 1980, effective 23 September 1980.

2. Section 128 BNSS: the present provision

Section 128 of the BNSS retains the essential preventive framework. It authorises an Executive Magistrate to call upon a person to show cause where the statutory conditions concerning concealment and an anticipated cognizable offence are met. The current provision refers to execution of a bond or bail bond for good behaviour, for a period not exceeding one year.

Official statutory reference: Bharatiya Nagarik Suraksha Sanhita, 2023 - Government of India PDF (see Section 128 and Chapter IX).

3. Conditions for invoking Section 128 BNSS

1. Information before the Magistrate: An Executive Magistrate must receive information concerning the person's conduct.
2. Territorial jurisdiction: The person must be within the Magistrate's local jurisdiction.
3. Concealment of presence: The information must indicate precautions taken to conceal the person's presence.
4. Connection with a cognizable offence: There must be reason to believe that the concealment is undertaken with a view to committing such an offence.
5. Opportunity to show cause: The person must be called upon to respond through the statutory procedure before a final security order is made.

A cognizable offence is an offence for which a police officer may arrest without warrant in accordance with the First Schedule or other applicable law; see the definition in Section 2 BNSS. Mere suspicion, without a factual basis meeting Section 128, should not be treated as sufficient by itself.

4. Procedure and safeguards

The preventive security provisions in Chapter IX BNSS regulate the steps following receipt of information. Important provisions include:

• Section 130: The Magistrate must make a written order stating the substance of the information, bond amount, period and number, character and class of sureties, if any.
• Sections 131 to 133: These govern reading or explaining the order, issuing summons or warrants where appropriate, and furnishing a copy of the order.
• Section 135: The Magistrate inquires into the truth of the information. Interim security may be considered only in accordance with the statutory conditions.
• Sections 136 and 137: These govern the order to give security when necessary and discharge where the information is not proved.
• Sections 138 to 141: These address commencement of the security period, contents of bonds, sureties and consequences of failure to furnish security.

The proceedings are preventive, not a substitute for proving a criminal charge. The Magistrate must observe the applicable procedure and assess the material placed before the authority.

5. Duration and nature of the bond

The maximum security period under Section 128 BNSS is one year. The Magistrate determines an appropriate period within that limit after following the required procedure. The nature and amount of security must also comply with the safeguards governing bonds and sureties under Chapter IX.

6. Difference between Sections 109 CrPC and 128 BNSS

Both provisions concern persons allegedly concealing their presence in anticipation of a cognizable offence, the authority of an Executive Magistrate and a maximum good-behaviour security period of one year. The principal textual change is the BNSS formulation bond or bail bond in place of the older CrPC reference to a bond with or without sureties. The operative procedure must be read under the statute applicable to the particular proceeding.

7. Frequently asked questions

Is Section 109 CrPC still applicable?

The CrPC was repealed with effect from 1 July 2024, subject to savings under Section 531 BNSS. The application of the earlier law to pending proceedings depends on those provisions.

What is the equivalent of Section 109 CrPC in the BNSS?

Section 128 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Can the Magistrate require security for more than one year?

No. Section 128 sets a maximum period of one year.

Does concealment alone automatically justify a bond?

No. The statutory requirement includes reason to believe that the concealment is connected to an intention to commit a cognizable offence, followed by the prescribed inquiry and procedural safeguards.

8. Official legal references

For the authoritative wording and the complete procedural framework, consult the official BNSS text and the India Code legislative database. The former CrPC provision is retained here for historical and transitional reference.

Legal information only. State-specific amendments, commencement rules and judicial interpretations should be checked before relying on this article in a particular case.