IMPORTANT POINT
Procedural compliance in inquiries under the BNSS and Cr.P.C. is crucial for the legality of security orders.

ORDER :

1. This Criminal Revision Petition has been filed under Section 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [hereinafter referred as ‘BNSS’ for short] to set aside order dated 03.05.2024 in M.C. No. 46/2023 on the files of the Sub Divisional Magistrate, Devikulam or to remand the case for de novo trial and disposal. The petitioner herein is the counter petitioner in M.C. No. 46/2023.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor, in detail. Perused the impugned order and relevant materials available.

3. At the time of hearing, the learned counsel for the petitioner, vehemently canvased that, before passing the order under Section 117 of Cr.P.C. the Court shall conduct an inquiry as provided under Section 116 of Cr.P.C. as to the truth of the information. In the instant case, the said procedure not properly followed by the learned Magistrate. Therefore, the order is illegal for procedural violation. He also would submit that, even though CW4 was examined as PW1 before passing the impugned order, the same lacks sufficient reasons to justify the order. Therefore, on merits also the impugned order will not stand in the eye of law, is the submission of the learned counsel for the petitioner.

4. The learned Public Prosecutor also conceded that there is procedural violation at the instance of the learned Magistrate, as could be gathered from the proceedings of the Court. Therefore, the matter may be remanded back to the Sub Divisional Magistrate, for fresh consideration, strictly following the procedure and to pass order on merits.

5. Coming to the essentials to be considered by a Magistrate before passing an order to give security by a person, the Magistrate should follow the procedures under Section 116 of Cr.P.C. In this connection, reference to Sections 116 and 117 of Cr.P.C. is necessary. The same are as under:

116. Inquiry as to truth of information:

(1) When an order under section 111 has been read or explained under section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.

(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons-cases.

(3) After the commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded:

Provided that:

(a) no person against whom proceedings are not being taken under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour.

(b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 111.

(4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise.

(5) Where two or more persons have been associated together in the matter under inquiry, they may be dea