Preliminary order under Section 126 BNSS invalid without stating substance of information received.

ORDER Dated this the 6^th day of April, 2026 The petitioner is the counter petitioner in M.C.No.231/2025 on the file of the Court of the Sub Divisional Magistrate, Kanhangad.

2. The petitioner has stated in the Criminal Miscellaneous Case that he has been served with Annexure-A1 preliminary order directing him to show cause why he should not be called upon to execute a bond for Rs.50,000/- with two solvent sureties for Rs. 50,000/-each for the purpose of keeping peace for a period of one year as envisaged under Section 126 read with Section 130 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘ BNSS ’, in short).

3. The petitioner contends that, Annexure-A1 preliminary order is unsustainable in law because the Sub Divisional Magistrate has not set forth the substance of the information in the said order, which is mandatory under Section 126 read with Section 130 of the BNSS , and the law laid down by this Court in Moidu vs. State of Kerala ( 1982 KHC 139 ). Therefore, Annexure-A1 preliminary order may be quashed.

4. Heard; Sri.P.K.Subhash, the learned Counsel for the petitioner and Sri.M.P.Prasanth, the learned Public Prosecutor.

5. In the above context it is necessary to refer to Sections 126 and 130 of the BNSS , which corresponds to the erstwhile Sections 107 and 111 of the Code of Criminal Procedure,which reads as follows:

“126.(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond or bail bond for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.”

“130. When a Magistrate acting under section 126, section 127, section 128 or section 129, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force and the number of sureties, after considering the sufficiency and fitness of sureties”.

6. The above provisions explicitly postulates that the Executive Magistrate, on receiving information that any person is likely to commit a breach of peace, disturb the public tranquility or does any wrongful act, and that there are sufficient grounds to proceed against him, the Executive Magistrate may, in the manner provided under Chapter IX of the BNSS , require such person to show cause why he should not be ordered to execute a bond or bail bond for his good behavior for such period, not exceeding one year provided an order in writing is passed, setting forth the substance of information received, the amount of bond to be executed, the term for which it is to be in force and the number of sureties.

7. It is the petitioner's case that, the Sub Divisional Magistrate has passed Annexure-A1 order without furnishing the substance of information. Instead, the Sub Divisional Magistrate has merely stated that the petitioner is involved in a crime registered by the Police.

8. InJayanth K. C. v. State of Kerala( 2025 KHC 1591 ),