High Court

1. Heard Sri A.K.S. Bais, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

2. This is an application U/s 528 of BNSS for quashing of the entire proceeding of Case No. 8730 of 2024 (State vs. Amit) U/s 170, 126, 135 of BNSS, P.S. Bilsi, District Budaun and the impugned order dated 21.09.2024 passed by Up Ziladhikari Tehsil Bilsi, District Budaun.

3. A joint statement has been made by learned counsel for the parties, that they do not propose any further in response and the application be decided on the basis of documents available on record, since legal question are involved in the application.

4. Learned counsel for the applicant submitted that the order dated 21.09.2024 passed by Sub Divisional Magistrate, Budaun under Section 126 & 135 of BNSS cannot be sustained in the eyes of law, since post drawing of proceeding under section 126 of BNSS, the Sub Divisional Magistrate has directly proceeded under Section 135 of BNSS without resorting to the procedure under section 130 which is mandatory. The submission is that without issuing show cause, directly proceeding under Section 135 of BNSS was resorted to. Thus, the prayer is for quashing of the said order.

5. Learned State Law Officer on the other hand does not dispute the said fact as according to him resorting to procedure under section 130 BNSS is mandatory and proceeding under section 135 BNSS comes only after conclusion of the proceeding under Section 130 BNSS. He submits that the order is set aside and the matter be remitted back.

6. Heard the counsel for the parties and perused the record carefully.

7. Chapter IX provides for security for keeping the peace and for good behavior. For the convenience Section 126, 130, 135 & 136 of BNSS is being quoted herein under: "126. Security for keeping peace in other cases.-(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 tranquillity 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. Order to be made. 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.

135. Inquiry as to truth of information.-(1) When an order under Section 130 has been read or explained under Section 131 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 132, 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 130 has been made to execute a bond or bail bond, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond or bail 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 127, Section 128, or Section 129 shall be directed to execute a bond or bail 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 130. (4) For the purposes of this section the fact that a person is a 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 dealt with in the same or separate inquiries as the Magistrate shall think just. (6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs: Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention. (7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.

136. Order to give security. If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond or bail bond, the Magistrate shall make an order accordingly: Provided that- (a) no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under Section 130; (b) the amount of every bond or bail bond shall be fixed with due regard to the circumstances of the case and shall not be excessive; (c) when the person in respect of whom the inquiry is made is a child, the bond shall be executed only by his sureties."

8. A conjoint reading of the above noted sections would reveal that Section 130 BNSS provides that when the Executive Magistrate on receiving information that a person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of peace or disturb a public tranquility and is of the opinion that there is sufficient ground for proceeding may in the manner so provided require the person show cause why he should not be ordered to execute a bond or a bail bond for keeping the peace of such person not exceeding one year. Further Section 130 BNSS stipulates that when a Magistrate acting under the above noted section, 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 enforced a number of sureties, after considering the sufficiency and the fitness of securities. Then comes Section 135 BNSS regarding inquiry as to the truth of information according to which when an order under section 130 BNSS has been read or explained under Section 131 BNSS to a person present in the court or when any person appears or is brought before a Magistrate in compliance with or an execution of a summons or warrant issued under Section 132 BNSS, the Magistrate shall proceed to enquire into the truth of information upon which action has been taken. Section 136 BNSS provides the order to give security.

9. In the present case, it is apparent that without resorting the proceeding under Section 130, show causing, the persons against whom an order is to proposed to be passed, directly enquiry as to the truth of the information was ordered. Section 130 BNSS is a mandatory requirement which is to subsequent to proceeding under section 126 and prior to proceeding under section 135.

10. Since the exercise under Section 130 BNSS is itself lacking and directly after section 126 BNSS, proceeding under Section 135 BNSS has been drawn, thus the order impugned cannot be sustained.

11. Accordingly, the order dated 21.09.2024, passed by Up Ziladhikari, Tehsil, Bilsi, District Budaun is set aside and the present application is allowed. The matter is remitted back to the court below to pass fresh order strictly in accordance with law. Order Date :- 10.3.2025 /C. MANI (Vikas Budhwar,J.)

1. Heard Sri A.K.S. Bais, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

2. This is an application U/s 528 of BNSS for quashing of the entire proceeding of Case No. 8730 of 2024 (State vs. Amit) U/s 170, 126, 135 of BNSS, P.S. Bilsi, District Budaun and the impugned order dated 21.09.2024 passed by Up Ziladhikari Tehsil Bilsi, District Budaun.

3. A joint statement has been made by learned counsel for the parties, that they do not propose any further in response and the application be decided on the basis of documents available on record, since legal question are involved in the application.

4. Learned counsel for the applicant submitted that the order dated 21.09.2024 passed by Sub Divisional Magistrate, Budaun under Section 126 & 135 of BNSS cannot be sustained in the eyes of law, since post drawing of proceeding under section 126 of BNSS, the Sub Divisional Magistrate has directly proceeded under Section 135 of BNSS without resorting to the procedure under section 130 which is mandatory. The submission is that without issuing show cause, directly proceeding under Section 135 of BNSS was resorted to. Thus, the prayer is for quashing of the said order.

5. Learned State Law Officer on the other hand does not dispute the said fact as according to him resorting to procedure under section 130 BNSS is mandatory and proceeding under section 135 BNSS comes only after conclusion of the proceeding under Section 130 BNSS. He submits that the order is set aside and the matter be remitted back.

6. Heard the counsel for the parties and perused the record carefully.

7. Chapter IX provides for security for keeping the peace and for good behavior. For the convenience Section 126, 130, 135 & 136 of BNSS is being quoted herein under: "126. Security for keeping peace in other cases.-(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 tranquillity 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. Order to be made. 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.

135. Inquiry as to truth of information.-(1) When an order under Section 130 has been read or explained under Section 131 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 132, 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 130 has been made to execute a bond or bail bond, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond or bail 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 127, Section 128, or Section 129 shall be directed to execute a bond or bail 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 130. (4) For the purposes of this section the fact that a person is a 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 dealt with in the same or separate inquiries as the Magistrate shall think just. (6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs: Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention. (7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.

136. Order to give security. If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond or bail bond, the Magistrate shall make an order accordingly: Provided that- (a) no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under Section 130; (b) the amount of every bond or bail bond shall be fixed with due regard to the circumstances of the case and shall not be excessive; (c) when the person in respect of whom the inquiry is made is a child, the bond shall be executed only by his sureties."

8. A conjoint reading of the above noted sections would reveal that Section 130 BNSS provides that when the Executive Magistrate on receiving information that a person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of peace or disturb a public tranquility and is of the opinion that there is sufficient ground for proceeding may in the manner so provided require the person show cause why he should not be ordered to execute a bond or a bail bond for keeping the peace of such person not exceeding one year. Further Section 130 BNSS stipulates that when a Magistrate acting under the above noted section, 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 enforced a number of sureties, after considering the sufficiency and the fitness of securities. Then comes Section 135 BNSS regarding inquiry as to the truth of information according to which when an order under section 130 BNSS has been read or explained under Section 131 BNSS to a person present in the court or when any person appears or is brought before a Magistrate in compliance with or an execution of a summons or warrant issued under Section 132 BNSS, the Magistrate shall proceed to enquire into the truth of information upon which action has been taken. Section 136 BNSS provides the order to give security.

9. In the present case, it is apparent that without resorting the proceeding under Section 130, show causing, the persons against whom an order is to proposed to be passed, directly enquiry as to the truth of the information was ordered. Section 130 BNSS is a mandatory requirement which is to subsequent to proceeding under section 126 and prior to proceeding under section 135.

10. Since the exercise under Section 130 BNSS is itself lacking and directly after section 126 BNSS, proceeding under Section 135 BNSS has been drawn, thus the order impugned cannot be sustained.

11. Accordingly, the order dated 21.09.2024, passed by Up Ziladhikari, Tehsil, Bilsi, District Budaun is set aside and the present application is allowed. The matter is remitted back to the court below to pass fresh order strictly in accordance with law. Order Date :- 10.3.2025 /C. MANI (Vikas Budhwar,J.)