This article was written by Mahesh P. Sudhakaran and briefly covers all aspects pertaining to security for good behaviour under Sections 109, 110, and 111 of the CrPC and also examines the procedure for the same.
It has been published by Rachit Garg.
Table of Contents
“Prevention is better than cure” is a proverb which is in common parlance and well known. Sir William Blackstone believed that ‘‘preventive justice is preferable in all respects to punishing justice”. Rather than merely being a popular quote, this proverb is deeply embedded in various legal systems as well. Indian criminal law is not completely unwary of the jurisprudential norm of preventive justice. Substantive law states that crime is to be prevented, and procedural law provides a mechanism for the same. The Code of Criminal Procedure, 1973, has enacted several provisions, as seen in the previous chapters, for investigation, inquiry, and trial with regard to every crime alleged to have been committed. Furthermore, in order to prevent crime, it was essential to include a few preventive measures. Provisions were also enacted in the form of other precautionary measures for the protection of society as a whole.
These matters are contained in Sections 106 to 124 and Sections 129 to 153. Part VIII seeks to create a stable society by enforcing the aforementioned proverb and ensuring peace and good behaviour. Security means providing a guarantee consistent with the court’s satisfaction that a certain form of conduct is to be upheld for a specified period by a certain person who is concerned with such a thing. Executing a bond is the prescribed mode of creating the security that is required in order to ensure peace and good behaviour. The bond therein can be executed with or without sureties. This whole procedure is a judicial one and not an administrative one that is within the discretionary power of the court.
In the Australian legal system, a “good behaviour bond” is one of the prominent non-custodial sentences that is concerned with imposing certain conditions to guarantee the offender’s “good behaviour” for a stipulated period of time. Similarly, Sections 108, 109, and 110 of the Code contain provisions pertaining to taking security for good behaviour from persons likely to commit offences.
How can “good behaviour” be determined
These provisions are enforced against any suspected persons or habitual persons who are likely to commit offences. It is not a punitive measure but a preventive measure to ensure that a person who is likely to commit such offences is bound by a bond to not display such behaviour, which would be contrary to the bond executed therein. This behaviour is determined based on the accused’s previous conduct and other surrounding factors. The jurisdiction conferred under the ambit of Section 108 is preventive and not punitive in nature.
The test under this Section is whether the person proceeded against has been disseminating or circulating seditious matter or such other matter as prescribed in Section 108, and whether there is a possibility with respect to a repetition of such an offence in the future. In each similar case, it is important to understand this particular question of fact with reference to the background of the person and other key surrounding circumstances. It may be noticed that when it comes to cases falling under clause (2) of Section 108, the dissemination must be intentional, but when it comes to cases falling under clause (ii) of Section 108, the dissemination need not be intentional with regard to there being any reason to believe that such a person is doing so in order to commit a cognizable offence.
Under Section 108, the magistrate may order such a person to show cause why he should not be ordered to execute a bond, to assure good behaviour for a stipulated period, which does not exceed one year, as the magistrate deems fit. Similarly, in order to ensure good behaviour under the purview of Sections 109 and 110, a person may be asked to prove and show why such a person should not be ordered to execute a bond, with or without sureties, to ensure such a person’s good behaviour for such a period, not exceeding a year, as the Magistrate deems fit. The purpose of this part is to determine and ensure the good behaviour of persons who might commit an offence through bond execution.
Benefits under Section 109
Section 109 of the Code deals with security for good behaviour by suspected persons. It can be enforced when a person takes precautions to cloak his presence in order to commit a cognizable offence. The magistrate may demand that such a person show why he should not be ordered to post a bond for good behaviour for a period not exceeding one year. This is a preventive measure designed to stop a person from carrying out a cognizable offence in the future.
This Section restricts or curtails the liberty of a person who is concealing himself to commit a crime and must be applied only when it’s needed to uphold the fundamental rights guaranteed under the Indian Constitution. This Section upholds the very essence of preventive justice as it gives effect to the rational ideology of preventing crime, thereby eliminating any damage it could cause in all probability. The words ‘‘concealing his presence” have to be interpreted widely as per this Section and are sufficiently wide to cover not only mere concealment or cloaking of bodily presence in a house or any other place, etc., but also any concealment of appearance through a mask or covering the face or disguising themselves using any other means. This form of preventive justice doesn’t just exist in India but is also prevalent across various legal systems.
As per Canadian jurisprudence, a peace bond is an order issued by a criminal court that forces a person to keep the peace and be on good behaviour for a specified period. In simpler terms, this means that any person signing a peace bond cannot be charged with any additional criminal offences during the duration of the peace bond. Peace bonds have other conditions as well; the person may be restrained from possessing any weapons or asked to stay away from a particular person or region by the court.
Whereas in Australia, a good behaviour bond falls under the ambit of non-custodial sentences, which includes the assurance regarding the offender’s “good behaviour” for a set period. The condition of “good behaviour” ensures that the offender obeys the law, and may also include other conditions like probation, supervision by an officer appointed by the court, mandatory medical treatment, rehabilitation, counselling, and certain intervention programs. These are some of the advantages of Section 109.
- Incapacitation of a potential offender.
- Deters occurrence of crime.
- Rehabilitation of potential offenders.
- Restitution of offenders into society.
- Consistent with the better safe than sorry ideology thereby preventing any damage that could possibly be inflicted.
- Creation of a safer society.
Security for good behaviour of habitual offenders under Section 110 CrPC
This Section is concerned with keeping habitual criminals under control when there is a possibility of repetition. It intends to incapacitate ex-convicts or habitual criminals who are dangerous and who are incorrigible. These offenders are potentially so dangerous that the ordinary provisions within penal law and the usual fear of judiciary-enforced punishments do not deter such persons from committing further crimes. As per this provision, the executive magistrate can initiate proceedings if information pertaining to the following persons is received:
- A person who is a habitual offender, robber, house-breaker, thief or forger.
- A person who is a habitual receiver of stolen property.
- A person who is a habitual protector or harbourer of thieves or habitual abettor in the concealment or disposal of stolen property.
- A person who is a habitual kidnapper, abductor, extortioner, cheat or a person habitually committing mischief, offences relating to coin stamps, etc.
- A person who is a habitual offender or abettor of a breach of the peace.
- Habitual offenders committing or attempting to commit or abetting the commission of offences under the Acts like –
- The Drugs and Cosmetics Act 1940
- The FERA 1973
- The Employees Provident Fund Acts 1952 etc The Custom Act,1962
- The Prevention of Food Adulteration Act, 1954
- The Essential Commodities Act, 1955
- The Untouchability (Offences) Act, 1955
- The Customs Act, 1962
Such a magistrate may instruct or order him to show cause as to why he should be ordered to execute a bond with sureties for his good behaviour for a period not exceeding three years. This Section does not aim to provide an indirect mode of securing a conviction in cases where a prosecution is likely to fail. This Section is purely enforced to curb the heinous atrocities by habitual criminals and to protect the community from any damage they are likely to cause. However, if it is not used with caution and consideration, it might easily become a tool for arbitrary decision-making. It may further be noted that proceedings under this Section are judicial in nature and not executive, and hence, the court is mandated to follow the procedure strictly to avoid any form of arbitrariness. When action against a person is initiated under this section, that person should be cordially informed of the charges. A mere suspicion that a person possesses criminal tendencies is not sufficient, the charge against such a person should be definite and unambiguous.
What does Section 111 of the CrPC say
As per Section 111, when a magistrate exercises powers under Sections 107, 108, 109, or 110 against a person, that person has to compulsorily show cause under the same section, and the magistrate having jurisdiction shall make an order in writing, representing the substance of the information received, the amount of the bond that has to be executed, the period of time for which it is to be in force, and the number, character, and class of sureties if any are required.
Ingredients of Section 111 of CrPC
This Section prescribes the procedure for passing a preliminary order, and the magistrate shall make an order:
1. Mentioning the substance of the information received,
2. The amount of bond to be executed to ensure peace or good behaviour,
3. The term for which the bond is to be in force,
4. Any number, character, and class of securities if provided.
The reason why the substance of the information is mentioned in the notice is to provide a reasonable opportunity for the accused to come prepared to meet the accusations.
Preliminary procedure of initiating action under Section 107-110
- Order requiring the respondent to show cause
When a magistrate acting under the ambit of Sections 107, 108, 109, or 110 deems it necessary to order a person to show cause under these Sections, the magistrate can make an order in writing the following:
- Setting forth the basis or the source of the information received,
- The rate of the bond that has to be set, the term for which it is to be in force,
- And the number, character, and class of sureties if required.
It is paramount that the person against whom this action is to be initiated be informed of the grounds for the same and why the court deems it fit to do so.
- Communication of the order
If the person against whom such an order is made is present in court, the order should be read and explained to him. If the order is not read out and explained as required by Section 112 above, it is an illegality that vitiates the proceedings. If such a person is absent from court, the magistrate can issue a summons compelling him to appear, or when the person is in custody, a warrant can be issued directing the officer in charge to bring him before the court. However, as per Section 113, if the magistrate, based on the report of a police officer or any other information received, has reason to believe that there is reason to fear the commission of a breach of peace and the only way to prevent such a crime is arrest, then he can initiate action as per the aforementioned proviso.
- Personal attendance is not always compulsory
As per Section 115, the Magistrate may, based on valid grounds, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond that ensures he wouldn’t undertake any illegal act, which forms the basis of the show cause against such a person.
Landmark case laws
These are some of the significant judgements regarding this topic:
Navin v. State of UP( 2021)
Herein it was held that the words habit and habitual have been defined, and the word habit has a close correlation with the character of a person when it comes to invoking provisions related to keeping peace and good behaviour. It was also held that the words “habit and habitually” have been used in the sense of depravity of character as evidenced by the frequent repetition or commission of the offences mentioned in the Section.
Zahir Ahmad v. Ganga Prasad (1962)
In this case, it was held that the procedure under Section 111 is mandatory in all criminal cases and that non-compliance wouldn’t be treated as a mere irregularity. Hence, it was deemed by the Court that action under the ambit of this Section could not be invoked if the procedure prescribed wasn’t adhered to by the authorities.
Abdui Ghafoor v. Emperor(1943)
In this case, it was held that the words “conceal presence” in Section 109 are wide enough to cover not only the concealment of bodily presence in a house or grove, etc., but also the concealment of appearance by wearing a mask or covering the face, or disguising by wearing a uniform, etc.
Nikka Ram v. State (1954)
Herein it was observed that the information received by the magistrate under Section 108 should not be vague and must clearly establish that the person against whom the information is given is by habit a robber, housebreaker, etc. The police report, by reproducing the words of the section and merely considering the bad name of a person, does not really give information about the meaning of this section.
Sections 109 and 110 of the Code are concerned with security for good behaviour from vagrants, suspicious persons, persons who have no definite means of living, habitual offenders or criminals, etc. The existence of a certain class of persons known as vagrants, vagabonds, rogues, etc., has perpetually threatened civilised societies all across the globe. But judicial compliance with this sigma would hinder societal growth and development. Since criminal sanctions deprive people of personal liberties and dignity, they should be carefully exercised. Criminal liability arises out of an act or intention, and these provisions deviate from this well-established rule and could possibly create a status-driven contrast. The practice of using mere previous status as the sole basis of prosecution is carried out in order to prevent anti-social elements, and it might even have an effect to some extent, but if not exercised carefully, the presumption of guilt without any evidence can be repugnant to ethical boundaries, destabilise the philosophy behind justice, and curtail a person’s right to live with dignity irrespective of status or any other parameter.
Sections 109 and 110 of the code personify pre-emptive action against crime that is yet to happen, thereby eliminating any harm that would occur in the future and creating a narrative of safety. Being a preemptive measure, this provision also has certain social implications, as if they aren’t used fairly, these provisions can result in an arbitrary exercise of judicial discretion. Hence, it is important to remember that this provision is not punitive by any means and cannot be exercised in a manner that causes prejudice to any Section of the society.
- R.V Kelkar CrPC
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