Section 122 CrPC: Imprisonment in Default of Security
Section 122 of the Code of Criminal Procedure, 1973 governs detention where a person fails to furnish security ordered for keeping the peace or maintaining good behaviour. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 141.
What does imprisonment in default of security mean?
In preventive proceedings, a court may direct a person to execute a bond, sometimes with sureties, to maintain peace or good behaviour. Security means the bond or undertaking required by the judicial order; a surety is a person who undertakes responsibility under the terms of the bond. Default of security occurs when the required security is not furnished by the date fixed under law. Detention under this provision is connected to the preventive order and is not itself a conviction for a fresh offence.
Section 122 CrPC: Statutory text
(1) (a) If any person ordered to give security under section 106 or section 117 does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case next hereinafter mentioned, be committed to prison, or, if he is already in prison, be detained in prison until such period expires or until within such period he gives the security to the Court or Magistrate who made the order requiring it. (b) If any person after having executed a bond, with or without sureties for keeping the peace in pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of such Magistrate or his successor-in-office, to have committed breach of the bond, such Magistrate or successor-in-office may, after recording the grounds of such proof, order that the person be arrested and detained in prison until the expiry of the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law.
(2) When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be, before such Court.
(3) Such Court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, and after giving the concerned person a reasonable opportunity of being heard, may pass such order on the case as it thinks fit: Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years.
(4) If security has been required in the course of the same proceeding from two or more persons in respect of any one of whom the proceedings are referred to the Sessions Judge under sub-section (2) such reference shall also include the case of any other of such persons who has been ordered to give security, and the provisions of sub-sections (2) and (3) shall, in that event, apply to the case of such other person also, except that the period (if any) for which he may be imprisoned, shall not exceed the period for which he was ordered to give security.
(5) A Sessions Judge may in his discretion transfer any proceedings laid before him under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings.
(6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the matter to the Court or Magistrate who made the order, and shall await the orders of such Court or Magistrate.
(7) Imprisonment for failure to give security for keeping the peace shall be simple.
(8) Imprisonment for failure to give security for good behaviour shall, where the proceedings have been taken under section 108, be simple, and, where the proceedings have been taken under section 109 or section 110, be rigorous or simple as the Court or Magistrate in each case directs.
Editorial note in the original: Act 25 of 2005, section 15 substituted the reference to a bond with or without sureties, with effect from 23 June 2006. The source also contained a duplicated superseded phrase in subsection (1)(b), which has been omitted above for readability.
Corresponding provision: Section 141 BNSS, 2023
Section 141 BNSS, titled Imprisonment in default of security, addresses the consequences of failure to furnish security and breach of a bond in preventive proceedings. It should be read with the BNSS provisions governing orders to furnish security, commencement of the security period and release of persons imprisoned for failure to furnish security. The precise current statutory language should be checked against the official Act, especially in ongoing proceedings.
Official sources: India Code - Central Acts and Ministry of Home Affairs - New Criminal Laws.
Key rules and safeguards under Section 122 CrPC
1. Failure to furnish security
Under subsection (1)(a), a person who fails to provide security when the security period begins may be committed to prison or kept in prison until the period expires or the required security is furnished, subject to the other provisions of the section.
2. Breach of an executed peace bond
Subsection (1)(b) allows detention following a proved breach of a peace bond, after the Magistrate records the grounds for that conclusion. Other lawful consequences of breach may also apply.
3. Security for more than one year
Under subsections (2) and (3), when security is ordered for a period exceeding one year and is not furnished, the proceedings must be placed before the Sessions Judge. The affected person must receive a reasonable opportunity of being heard. The CrPC provision expressly limits imprisonment for failure to furnish security to three years.
4. Multiple persons in the same proceedings
Subsection (4) deals with cases involving more than one person, including how a reference to the Sessions Judge affects other persons ordered to furnish security in the same proceedings.
5. Tendering security while in prison
Under subsection (6), security offered to the officer in charge of the jail must be referred promptly to the court or Magistrate that made the order; the jail officer must await the judicial direction.
6. Simple and rigorous imprisonment
Subsections (7) and (8) distinguish imprisonment for failure to furnish security for keeping the peace from certain good-behaviour proceedings. The applicable category depends on the statutory basis of the preventive proceeding.
At a glance
| Issue | CrPC Section 122 rule |
|---|---|
| Security not furnished | Detention may follow, subject to the statutory procedure and duration. |
| Peace bond breached | Magistrate must be satisfied of the breach and record grounds. |
| Security period exceeds one year | Reference to Sessions Judge, with an opportunity to be heard. |
| Maximum for failure to give security | Three years under the CrPC proviso, subject to the actual security period and applicable provisions. |
| Security furnished during detention | Relevant court or Magistrate must be informed for appropriate orders. |
Frequently asked questions
Is imprisonment automatic if a person cannot furnish security?
The statutory framework provides for detention on default, but the underlying security order, applicable procedure, period and judicial safeguards must be examined. A person affected by the order should obtain advice on the available challenge or release procedure.
Can a person be released after furnishing the required security?
Section 122(1)(a) contemplates an end to detention when security is furnished within the relevant period. Where security is tendered through the jail, subsection (6) requires referral to the court or Magistrate for orders.
Which law applies after 1 July 2024?
The BNSS generally governs new criminal procedural matters from its commencement, while its repeal-and-savings provision may preserve the CrPC for certain pending matters. The date and nature of the proceeding matter.
Related provisions and references
Read the related provisions on Section 121 CrPC - rejection of sureties, Section 123 CrPC - release after failure to furnish security, and Section 124 CrPC - security for unexpired period.
This article provides general legal information. For a particular order or pending case, consult the applicable statutory text and qualified legal counsel.