Introduction
Section 138 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the commencement of the period for which a person is required to furnish security under the preventive-security provisions.
- Introduction
- Meaning of Section 138
- Statutory Basis
- Object and Purpose
- Essential Elements
- Procedure
- Section 138 and Section 136
- Section 138 and Imprisonment
- Nature of the Provision
- Important Safeguards
- BNSS and CrPC
- Important Distinctions
- Example
- Common Confusions
- Important BNSS Provisions
- Topic at a Glance
- Quick Revision
- Conclusion
The provision determines when the period specified in an order requiring security actually begins. It is particularly important where the person is already undergoing a sentence of imprisonment at the time the security order is made.
Meaning of Section 138
Section 138 determines the starting point of the period of security imposed under the preceding provisions.
The commencement depends on the circumstances of the person against whom the security order has been made. The provision distinguishes between a person who is already undergoing imprisonment and a person who is not.
The section ensures that the period for which security is required is calculated from the legally prescribed point rather than arbitrarily from an inappropriate date.
Statutory Basis
Section 138 forms part of Chapter IX of BNSS dealing with security for keeping the peace and for good behaviour.
The connected provisions include:
| Provision | Subject |
|---|---|
| Section 125 | Security for keeping peace on conviction |
| Section 126 | Security for keeping peace in other cases |
| Section 127 | Security for good behaviour from persons disseminating certain matters |
| Section 128 | Security for good behaviour from suspected persons |
| Section 129 | Security for good behaviour from habitual offenders |
| Section 130 | Order to be made |
| Section 135 | Inquiry as to truth of information |
| Section 136 | Order to give security |
| Section 137 | Discharge of person informed against |
| Section 138 | Commencement of period for which security is required |
| Section 139 | Contents of bond |
| Section 140 | Power to reject sureties |
| Section 141 | Imprisonment in default of security |
Object and Purpose
The purpose of Section 138 is to establish a clear rule regarding the starting date of the security period.
This is significant because a person may be:
- already undergoing imprisonment when the security order is made; or
- otherwise available to furnish security immediately.
The provision prevents overlap or confusion between the period of imprisonment and the period for which preventive security is required.
Essential Elements
1. Security Must Have Been Ordered
Section 138 becomes relevant only after an order requiring security has been made under the applicable provisions.
The period mentioned in the security order must then be given a legally determined commencement date.
2. Person Undergoing Imprisonment
Where the person against whom the security order is made is, at the time of the order, undergoing a sentence of imprisonment, the period for which security is required generally commences after the sentence expires.
This prevents the security period from simply running concurrently with the sentence of imprisonment.
3. Person Not Undergoing Imprisonment
Where the person is not undergoing such imprisonment, the period generally begins from the date of the order.
However, the Magistrate may, for sufficient reason, direct that the period should commence at a later date.
4. Later Commencement
The provision therefore gives the Magistrate limited flexibility to specify a later commencement date where sufficient reasons exist.
This discretion must be exercised according to the statutory framework and cannot be used arbitrarily.
Procedure
The operation of Section 138 can be understood as follows:
- The Magistrate conducts the required preventive-security proceedings.
- An order requiring security is made.
- The period for which security is required is specified.
- The Magistrate determines the legally applicable commencement date.
- If the person is undergoing imprisonment, the security period ordinarily begins after the sentence expires.
- If the person is not undergoing imprisonment, the period ordinarily begins from the date of the order.
- Where sufficient reason exists, the Magistrate may direct a later commencement.
Section 138 and Section 136
The two provisions perform different functions.
| Point | Section 136 | Section 138 |
|---|---|---|
| Subject | Order to give security | Commencement of security period |
| Main question | Whether security must be furnished | When the security period begins |
| Stage | After inquiry | After security order |
| Function | Creates the security obligation | Determines its commencement |
Thus, Section 136 establishes the obligation to furnish security, while Section 138 determines when the period attached to that obligation begins.
Section 138 and Imprisonment
The relationship between imprisonment and the security period is one of the most important aspects of this provision.
Where a person is already undergoing a sentence of imprisonment when the security order is made, the security period does not ordinarily begin immediately. Instead, it begins after the sentence expires.
This ensures that the statutory security period is not improperly consumed while the person is serving the sentence.
Nature of the Provision
Section 138 is a procedural provision dealing with the calculation and commencement of the period attached to a preventive-security order.
It does not itself create a new offence or impose a criminal punishment.
Its function is to determine the temporal operation of an already existing security requirement.
Important Safeguards
Security Period Cannot Be Arbitrarily Calculated
The commencement of the security period must follow the statutory rule.
Protection Where the Person Is Imprisoned
Where the person is undergoing a sentence, the security period generally begins after the sentence expires.
Magistrate’s Limited Discretion
The Magistrate may provide for a later commencement where sufficient reason exists, but the discretion must be exercised within the statutory framework.
BNSS and CrPC
Section 138 of BNSS substantially corresponds to Section 120 of the Code of Criminal Procedure, 1973.
| Aspect | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Provision | Section 120 | Section 138 |
| Subject | Commencement of period for which security is required | Commencement of period for which security is required |
| Person undergoing imprisonment | Period begins after sentence expires | Same basic framework |
| Person not undergoing imprisonment | Period ordinarily begins from order | Same basic framework |
| Later commencement | Permitted for sufficient reason | Permitted within the statutory framework |
The basic rule has therefore been substantially retained under BNSS, with the corresponding provision renumbered as Section 138.
Important Distinctions
Security Order vs Commencement of Security Period
The security order determines that the person must furnish security.
The commencement provision determines when the period for which that security is required begins.
Imprisonment vs Security Period
Imprisonment is a sentence imposed as a consequence of a criminal conviction.
The security period under Chapter IX is preventive in nature.
Where the person is already serving a sentence, Section 138 generally prevents the security period from beginning until the sentence expires.
Example
A Magistrate makes an order requiring a person to furnish security for maintaining good behaviour for a specified period. At the time the order is made, the person is already undergoing a sentence of imprisonment.
Under Section 138, the security period will generally commence after the sentence expires rather than running simultaneously with the period of imprisonment.
If the person is not undergoing imprisonment, the period ordinarily commences from the date of the order, subject to the Magistrate directing a later date for sufficient reason.
Common Confusions
Does the security period always begin on the date of the order?
No.
The applicable commencement depends upon the circumstances specified in Section 138.
What happens if the person is already serving a sentence?
The security period generally begins after the sentence expires.
Can the Magistrate specify a later commencement date?
Yes.
A later commencement may be directed where there is sufficient reason.
Is the security period itself a punishment?
No.
Security under these provisions is preventive in character.
Does Section 138 determine the amount of security?
No.
The amount and nature of security are dealt with through the provisions governing the security order. Section 138 primarily determines the commencement of the security period.
Important BNSS Provisions
- Section 125 – Security for keeping peace on conviction
- Section 126 – Security for keeping peace in other cases
- Section 127 – Security for good behaviour from persons disseminating certain matters
- Section 128 – Security for good behaviour from suspected persons
- Section 129 – Security for good behaviour from habitual offenders
- Section 130 – Order to be made
- Section 135 – Inquiry as to truth of information
- Section 136 – Order to give security
- Section 137 – Discharge of person informed against
- Section 138 – Commencement of period for which security is required
- Section 139 – Contents of bond
- Section 140 – Power to reject sureties
- Section 141 – Imprisonment in default of security
Topic at a Glance
| Point | Position |
|---|---|
| Topic | Commencement of Period for Which Security Is Required |
| BNSS Section | Section 138 |
| Chapter | Chapter IX |
| Corresponding CrPC provision | Section 120 |
| Purpose | Determines when the security period begins |
| Person undergoing imprisonment | Period generally begins after sentence expires |
| Person not undergoing imprisonment | Period ordinarily begins from date of order |
| Later commencement | May be directed for sufficient reason |
| Nature | Procedural and preventive |
| Related provision | Section 136 – Order to give security |
Quick Revision
- Section 138 BNSS deals with the commencement of the period for which security is required.
- It operates after an order requiring security has been made.
- Where the person is undergoing a sentence of imprisonment, the security period generally begins after the sentence expires.
- Where the person is not undergoing imprisonment, the period ordinarily begins from the date of the order.
- The Magistrate may direct a later commencement where there is sufficient reason.
- Section 138 does not determine the amount of security.
- The provision is procedural and preventive in nature.
- It substantially corresponds to Section 120 CrPC.
- Section 136 deals with the security order, while Section 138 deals with its commencement.
ASLO READ: Section 137 – Discharge of person informed against
Conclusion
Section 138 of BNSS provides a clear statutory rule for determining when the period of a preventive-security requirement begins. Its principal significance lies in coordinating the security period with the circumstances of the person, particularly where the person is already serving a sentence of imprisonment. The provision ensures that the period of security operates according to a legally defined commencement date rather than through arbitrary calculation.
