Section 118 CrPC - Discharge of Person Informed Against
Section 118 of the Code of Criminal Procedure, 1973 governed discharge when a preventive-security inquiry failed to establish the need for a bond. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 137.
Text of Section 118 CrPC
If, on an inquiry under section 116, it is not 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, the Magistrate shall make an entry on the record to that effect, and if such person is in custody only for the purposes of the inquiry, shall release him, or, if such person is not in custody, shall discharge him.
Meaning and legal effect
Preventive-security proceedings seek to prevent breaches of peace or conduct that warrants security for good behaviour. They are not a substitute for punishment following a criminal conviction. Section 118 requires the Magistrate to end the proceedings when the necessary grounds for a security bond are not proved in the inquiry.
The Magistrate must record the finding. A person detained only for that inquiry must be released; a person who is not in custody must be discharged. The provision does not automatically override detention under another valid legal authority.
Section 137 BNSS - Corresponding current provision
Section 137 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is titled Discharge of person informed against. It continues the principle that, if the inquiry does not establish the necessity for a bond for keeping the peace or maintaining good behaviour, the Magistrate must record the result and release or discharge the person, as applicable.
The associated inquiry procedure is addressed in Section 135 BNSS, corresponding broadly to Section 116 CrPC. Where the inquiry supports security, Section 136 BNSS concerns an order to give security, corresponding to Section 117 CrPC.
When is discharge required?
- An inquiry into the allegations or information has been conducted under the applicable procedural provision.
- The evidence does not establish that a security bond is necessary to keep the peace or maintain good behaviour.
- The Magistrate records that conclusion in the proceedings.
- The person is discharged, or released if detained solely for the inquiry.
Discharge compared with an order to furnish security
When the need for preventive security is established, the Magistrate may order an appropriate bond subject to statutory limits. Where the need is not established, discharge is mandatory under Section 118 CrPC or the corresponding BNSS provision. The outcome depends on the inquiry and the applicable law, not merely on the existence of a police report or allegation.
Practical considerations
A person facing preventive-security proceedings may examine the initial order, the evidence relied upon, and the recorded reasons for any interim directions. Legal representation and applicable procedural safeguards remain important. If the inquiry fails to establish the statutory grounds, the person may request a recorded discharge order and release from custody if no independent lawful ground for detention exists.
Frequently asked questions
What is Section 118 CrPC?
It required the Magistrate to discharge a person, or release the person if detained solely for the inquiry, when an inquiry under Section 116 did not prove that a preventive-security bond was necessary.
What is the equivalent of Section 118 CrPC under BNSS?
Section 137 BNSS, 2023, deals with discharge of the person informed against.
Does discharge under this provision amount to acquittal?
No. It terminates the particular preventive-security proceeding; it is not necessarily an acquittal of a criminal charge in a separate prosecution.
Must a detained person be released?
Yes, if the person is detained only for the preventive-security inquiry and the statutory grounds are not proved. Other independent lawful detention orders are unaffected.
Official legislation and further reading
Consult the official India Code legislative database for the Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023) and the Code of Criminal Procedure, 1973 (Act 2 of 1974). The Ministry of Home Affairs also publishes material concerning the new criminal laws. Verify the applicable law and subsequent amendments before relying on any provision in litigation.