Introduction
Section 128 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with security for good behaviour from suspected persons. It empowers an Executive Magistrate to take preventive action where information indicates that a person is deliberately concealing their presence and there is reason to believe that the person is doing so with a view to committing a cognizable offence.
- Introduction
- Meaning of Section 128
- Statutory Basis
- Object and Purpose
- Nature of Section 128
- Essential Elements
- Procedure under Section 128
- Powers of the Executive Magistrate
- Limitations on the Power
- Section 128 and Preventive Action
- Section 128 and Criminal Liability
- Section 128 and CrPC
- Important Distinctions
- Relationship with Sections 130 to 138
- Constitutional Connection
- Example
- Common Confusions
- Topic at a Glance
- Quick Revision
- Conclusion
The provision is preventive in nature. It does not require that the person must already have committed a cognizable offence. Instead, it operates on information and circumstances giving rise to a reasonable belief that the person’s concealment is connected with an intention to commit such an offence.
The Magistrate may require the person to show cause why they should not be ordered to execute a bond or bail bond for good behaviour for a period not exceeding one year.
Meaning of Section 128
Section 128 applies to a person who is taking precautions to conceal their presence within the local jurisdiction of an Executive Magistrate, where there is reason to believe that the concealment is intended to facilitate the commission of a cognizable offence.
The provision allows the Executive Magistrate to initiate proceedings requiring the person to show cause why they should not be required to furnish security for good behaviour.
The essential idea is preventive rather than punitive. The object is to prevent a suspected person from using concealment as a means of preparing for or facilitating the commission of a cognizable offence.
Statutory Basis
Section 128 of the BNSS provides that when an Executive Magistrate receives information that:
- a person is within the Magistrate’s local jurisdiction;
- the person is taking precautions to conceal their presence; and
- there is reason to believe that the person is doing so with a view to committing a cognizable offence,
the Magistrate may require that person to show cause why they should not be ordered to execute a bond or bail bond for good behaviour.
The period for which such security may be required cannot exceed one year.
Section 128 forms part of Chapter IX – Security for Keeping the Peace and for Good Behaviour.
Object and Purpose
The purpose of Section 128 is to provide a preventive mechanism for dealing with circumstances that indicate a potential threat to public safety.
The provision is intended to prevent the commission of cognizable offences rather than punish a person for an offence already committed.
Its main objectives are:
- prevention of anticipated criminal activity;
- protection of public order and safety;
- enabling preventive supervision by an Executive Magistrate;
- requiring suspected persons to provide security for their good behaviour where the statutory conditions are satisfied.
The provision therefore reflects the preventive character of certain proceedings under criminal procedure.
Nature of Section 128
Section 128 is a preventive provision.
A person does not become liable under Section 128 merely because the police or Magistrate suspect them of having committed an offence. The provision specifically concerns a person who is concealing their presence and where there is reason to believe that such concealment is connected with an intention to commit a cognizable offence.
The proceedings are also not equivalent to a criminal trial. The purpose is to determine whether preventive security should be required.
Essential Elements
1. Information Must Be Received by an Executive Magistrate
The proceedings begin when an Executive Magistrate receives information concerning the person.
The information must relate to circumstances falling within Section 128.
The Magistrate does not act merely because a person is generally considered suspicious. The statutory requirements must be satisfied.
2. The Person Must Be Within the Local Jurisdiction
The provision applies where the person is within the local jurisdiction of the Executive Magistrate.
Therefore, territorial jurisdiction is an important element of Section 128 proceedings.
3. The Person Must Be Taking Precautions to Conceal Their Presence
The person must be taking precautions to conceal their presence.
This is a specific statutory requirement.
Mere absence from a place or ordinary efforts to maintain privacy cannot automatically be treated as concealment for the purposes of Section 128. The circumstances must indicate conduct amounting to precautions intended to conceal the person’s presence.
4. There Must Be Reason to Believe Regarding the Purpose of Concealment
There must be reason to believe that the person is concealing their presence with a view to committing a cognizable offence.
Thus, the provision requires a connection between:
- the concealment of presence; and
- the intended commission of a cognizable offence.
A general suspicion about the person’s character is not, by itself, the statutory test.
5. The Proposed Security Must Be for Good Behaviour
If the statutory requirements are satisfied, the Magistrate may require the person to show cause why they should not be ordered to execute a bond or bail bond for their good behaviour.
The security is therefore directed towards future conduct.
6. Maximum Period of One Year
The period for which the security may be required cannot exceed one year.
The Magistrate may determine an appropriate period within this statutory maximum, depending upon the circumstances of the case.
Procedure under Section 128
Section 128 does not itself contain the complete procedure for the subsequent inquiry and passing of the final order. It refers to the procedure provided in the provisions that follow.
The general framework operates as follows:
Step 1: Information Before the Executive Magistrate
The Executive Magistrate receives information concerning a person who is allegedly concealing their presence.
Step 2: Formation of the Required Belief
The Magistrate considers whether there is reason to believe that the person is taking such precautions with a view to committing a cognizable offence.
Step 3: Requirement to Show Cause
If the statutory requirements are satisfied, the Magistrate may require the person to show cause why they should not be ordered to execute a bond or bail bond for good behaviour.
Step 4: Subsequent Proceedings
The subsequent procedure is governed by the provisions relating to security proceedings under BNSS.
The person is given an opportunity to contest the basis of the proposed security.
Step 5: Inquiry and Final Order
The truth of the information is examined in accordance with the applicable provisions. Depending upon the outcome, the person may either be discharged or may be required to furnish security.
The final requirement of security must remain within the limits prescribed by law.
Powers of the Executive Magistrate
Section 128 gives the Executive Magistrate preventive powers.
Where the statutory conditions are satisfied, the Magistrate may:
- require the suspected person to show cause;
- initiate proceedings for security for good behaviour;
- require execution of a bond or bail bond where the subsequent statutory requirements are satisfied;
- determine the appropriate period of security subject to the maximum period prescribed by Section 128.
The power is discretionary, but it must be exercised on the basis of the statutory conditions and relevant information.
Limitations on the Power
The power under Section 128 is not unlimited.
The following requirements must be kept in mind:
- There must be information before an Executive Magistrate.
- The person must be within the Magistrate’s local jurisdiction.
- The person must be taking precautions to conceal their presence.
- There must be reason to believe that the concealment is connected with a view to committing a cognizable offence.
- The security must be for good behaviour.
- The period cannot exceed one year.
- The person must be dealt with according to the procedure prescribed by the BNSS.
The provision should not be used merely to impose preventive restrictions on persons without satisfying the statutory requirements.
Section 128 and Preventive Action
Section 128 is an example of preventive criminal procedure.
The provision does not proceed on the basis that the person has already been convicted or even necessarily that the person has already committed the suspected cognizable offence.
Instead, it addresses circumstances in which conduct and surrounding information indicate a potential future offence.
This distinguishes Section 128 from ordinary criminal prosecution, where the prosecution seeks to establish the commission of an offence and the liability of the accused.
Section 128 and Criminal Liability
Proceedings under Section 128 should not be confused with prosecution for the cognizable offence that the person is suspected of intending to commit.
The purpose of Section 128 is to obtain security for good behaviour.
Therefore:
Security proceeding ≠ criminal trial.
A person being proceeded against under Section 128 is not thereby convicted of the cognizable offence that is suspected.
Section 128 and CrPC
Section 128 BNSS corresponds substantially to Section 109 of the Code of Criminal Procedure, 1973.
| Aspect | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Provision | Section 109 | Section 128 |
| Subject | Security for good behaviour from suspected persons | Security for good behaviour from suspected persons |
| Authority | Magistrate | Executive Magistrate |
| Trigger | Person concealing presence with suspected intention to commit a cognizable offence | Same basic framework |
| Maximum period | One year | One year |
| Nature | Preventive | Preventive |
The BNSS has substantially retained the earlier preventive mechanism while relocating it to Section 128.
The corresponding provision under the CrPC was Section 109. Under the BNSS, the provision forms part of Chapter IX dealing with security for keeping the peace and good behaviour.
Important Distinctions
Section 128 vs Section 129
| Section 128 | Section 129 |
|---|---|
| Deals with suspected persons | Deals with habitual offenders and certain other specified persons |
| Focuses on concealment of presence | Focuses on habitual conduct or specified criminal associations |
| Requires reason to believe that concealment is with a view to committing a cognizable offence | Applies to persons falling within the categories specified in Section 129 |
| Maximum period is one year | Operates under the separate requirements of Section 129 |
Preventive Security vs Criminal Punishment
| Preventive Security | Criminal Punishment |
|---|---|
| Intended to prevent future misconduct | Imposed for an offence established through criminal proceedings |
| Based on statutory preventive conditions | Follows adjudication of criminal liability |
| Involves bond or bail bond for good behaviour | May involve imprisonment, fine or other statutory punishment |
| Does not amount to conviction | Follows conviction where punishment is imposed |
Relationship with Sections 130 to 138
Section 128 should be read together with the provisions that follow it.
Section 130 deals with the order to be made in such proceedings.
Section 131 deals with the procedure in respect of a person present in Court.
Section 132 deals with summons or warrant where the person is not present.
Section 133 requires a copy of the order to accompany the summons or warrant.
Section 134 deals with the power to dispense with personal attendance.
Section 135 provides for an inquiry as to the truth of the information.
Section 136 deals with the order to give security.
Section 137 deals with discharge of the person informed against.
Section 138 deals with commencement of the period for which security is required.
These provisions together create the procedural framework for security proceedings.
Constitutional Connection
Section 128 involves preventive restrictions on individual liberty and therefore must operate within constitutional limits.
Article 14
The power must be exercised according to law and cannot be applied arbitrarily or discriminatorily.
Article 21
Since preventive proceedings may affect personal liberty, the procedure followed must satisfy the requirements of fairness and legality under Article 21.
The person must be dealt with according to the safeguards prescribed by the BNSS.
Example
Suppose X enters an area and deliberately takes steps to conceal their presence. The Executive Magistrate receives credible information that X is hiding in the area because X intends to commit a cognizable offence.
If the statutory requirements of Section 128 are satisfied, the Executive Magistrate may initiate proceedings requiring X to show cause why X should not be ordered to execute a bond or bail bond for good behaviour.
The Magistrate cannot simply declare X guilty of the intended offence. The proceeding is preventive and concerns whether security for good behaviour should be required.
Common Confusions
Does Section 128 apply only after a person commits an offence?
No.
Section 128 is preventive in nature. It operates where there is reason to believe that a person is concealing their presence with a view to committing a cognizable offence.
Can the Magistrate require security for more than one year?
No.
Section 128 expressly limits the period of security to a maximum of one year.
Is every suspicious person covered by Section 128?
No.
The statutory requirements must be satisfied. The person must be taking precautions to conceal their presence, and there must be reason to believe that the concealment is with a view to committing a cognizable offence.
Does proceedings under Section 128 mean that the person has been convicted?
No.
Section 128 concerns preventive security for good behaviour. It is not a criminal conviction.
Is Section 128 the same as Section 109 CrPC?
Substantially, yes.
Section 128 BNSS corresponds to Section 109 CrPC and retains the basic preventive mechanism relating to suspected persons.
Topic at a Glance
| Point | Position |
|---|---|
| Topic | Security for good behaviour from suspected persons |
| BNSS Section | Section 128 |
| Chapter | Chapter IX |
| Authority | Executive Magistrate |
| Person covered | Person taking precautions to conceal their presence |
| Additional requirement | Reason to believe concealment is with a view to committing a cognizable offence |
| Security | Bond or bail bond for good behaviour |
| Maximum period | One year |
| Nature | Preventive |
| Corresponding CrPC provision | Section 109 |
| Related provisions | Sections 130 to 138 |
Quick Revision
- Section 128 BNSS deals with security for good behaviour from suspected persons.
- It applies where an Executive Magistrate receives information that a person is taking precautions to conceal their presence within the Magistrate’s local jurisdiction.
- There must be reason to believe that the concealment is with a view to committing a cognizable offence.
- The Magistrate may require the person to show cause why they should not be ordered to execute a bond or bail bond for good behaviour.
- The maximum period for which security may be required is one year.
- Section 128 is preventive, not punitive.
- Proceedings under Section 128 do not amount to conviction for the suspected cognizable offence.
- Section 128 substantially corresponds to Section 109 CrPC.
- The subsequent procedure is governed by the connected provisions of Chapter IX, particularly Sections 130 to 138.
- The power of the Executive Magistrate must be exercised within the statutory and constitutional safeguards governing preventive proceedings.
ALSO READ: Section 127 – Security for good behaviour from persons disseminating certain matters
Conclusion
Section 128 BNSS provides a preventive mechanism for dealing with a person who is deliberately concealing their presence and where there is reason to believe that such concealment is connected with an intention to commit a cognizable offence. It enables an Executive Magistrate to require the person to show cause why security for good behaviour should not be demanded.
