1137.    (1) Section 106 of the Code of Criminal Procedure provides that a  Court of sessions or a Magistrate of the First Class may, at the time of passing sentence on a person convicted of certain specified offences, order him to execute a bond for keeping the peace for any period not exceeding three years.  It differs from Sections 107 to 110 in that security can be demanded under it only when a person is convicted of any of the specified offences and that it makes no provision for a preliminary order to show cause and final order after the enquiry.

           (2) The offences in connection with which security can be taken under the section are:-

(a)    any offence punishable under chapter VIII of the Indian Penal Code, other than an offence punishable under section 153 A or section 153 B or section 154 thereof;

(b)    any offence which consists of, or includes assault or using criminal force or committing mischief;

(c)    any offence of criminal intimidation;

(d)    any other offence which caused or was intended or known to be likely to cause a breach of peace.

             (3) In passing an order under section 106 of the Code of Criminal Procedure, it has to be seen, not whether the persons concerned did commit a breach of the peace, but whether they were convicted of an offence which necessarily involves a breach of the peace.

            (4) Evidence of past conduct is not legal evidence for an order under Section 106.

            (5) Section 106 (3) provides, that, if the conviction is set aside on appeal or otherwise, the bond executed shall become void.  Also, the Appellate Court can, while upholding the conviction for the specific offence, set aside the order for security passed against the accused.

            (6) Under sub-section (4), power is given to the appellant court and the High Court in revision to demand security under the section.

1138.    (1) In prosecutions for any of the offences referred to in clauses (i), (ii) and (iii) of Sub-Order (2) of Order 1137, the need to move the trial Magistrates to bind over the accused concerned under Section 106 should be carefully examined and timely action taken in cases in which it is warranted.  In respect of persons so bound over, rowdy sheets should be opened and their movements periodically checked and noted.  Amongst other information, the names and addresses of the sureties should be mentioned in the sheets.

            (2) If during the term for which an accused is bound over under Section 106, breaks the peace, steps should promptly be taken against him and his sureties and the Court moved to forfeit their bonds.

BREACHES OF THE PEACE – SECURITY FOR KEEPING THE PEACE-SECTION 107-CRIMINAL PROCEDURE CODE – INSTRUCTIONS

1139.    (1) An Executive Magistrate who is informed that any 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 the peace or disturbance of the public tranquillity, may, under-Sub-Section (1) of Section 107 of the Code of Criminal Procedure require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace  for a period  not exceeding one year.

            (2) (a) Section 107 is thus an effective means for preventing breaches of the peace or disturbances of public tranquility in connection with religious processions, festivals, fairs, elections, political movements or other disputes between factions.  It is not essential in every case that there should be two parties against each other.  It must however, be clear that a breach of the peace is imminent, unless averted by  proceedings under the section.

            (b) Before starting proceedings under this section, the Police should collect evidence, oral and documentary, of persons (including Police  Officers)  acquainted with the  circumstances of the case, regarding ----

(i)                  the specific occasion on which the breach of the peace is anticipated;

(ii)                the existence of a cause, quarrel or other circumstances  which is likely to lead to the breach and the period of its duration;

(iii)               the declaration of the parties indicating their determination to carry out, or to prevent, certain things in connection with the subject-matter of the quarrel;

(iv)              the strength and the following of the party or parties, and

(v)                attempts made for conciliation with their results.

             (c)  It is not necessary to record elaborate statements of witness, short notes being sufficient. The provisions of Section 162 of the Code of Criminal Procedure do not apply to any statements or notes made in connection with such an enquiry.   In fact, the enquiry is not governed by any of the provisions of Chapter XII of the Code of Criminal Procedure.

           (3) Section 151 of the Code of Criminal Procedure empowers a Police Officer to arrest without warrant any person designing to commit a cognizable offence, if, in his opinion, the commission of the offence cannot otherwise be prevented.  If, then, action under section 107 is contemplated against the arrested person, he may be produced before an Executive magistrate for taking action.

           (4) The Magistrate may, under Section 116 order the execution of an interim bond, with or without sureties,  for keeping peace until the conclusion of the inquiry may detain him in custody until such bond is executed or, in default to execution, until the inquiry is concluded.

             (5) The provisions of Chapter XXXIII of the Code of Criminal Procedure relating to bail do  not apply to an order of detention passed under Sub-Section (4) of Section 107 or Sub-Section (3) of Section 116.  A person who has been arrested by the Police under section 151 of the Code of Criminal Procedure for the initiating of security  proceedings or against whom security proceedings have already been started, is as a rule entitled to be released on bail under Section 436. But the proviso to Section 436 states that “nothing in this section shall be deemed to affect the provisions of Sub-section (3) of Section 116.   These are, therefore special provisions which are not affected by Sections 436, 437, 439  and 440.

(6)  Thus , superior courts interfere in the matter of release on bail with an order passed by a competent Magistrate acting under Sub-Section (4) of Section 107.  This, obviously, is a very useful provision for those entrusted with the task of maintaining law and order and may well be resorted to for the detention of person arrested under Section 151, if that is considered necessary for the public safety or in the interest of the public peace.

CASES AGAINST LOCAL HABITUAL CRIMINALS  :

SECTION 110 OF THE CODE OF CRIMINAL PROCEDURE

1140.    Security   cases under section 110 of  the Code of Criminal Procedure  against local habitual should be built up on details recorded in the Station Crime History as the result of careful watching by the Police. It should be very exceptional  for a local criminal for whom a History Sheet has not been opened, to be put up under these sections.

1141.  The section requires that the person proceeded against should be within the local limits of the Magistrate's jurisdiction at the time when proceedings are taken against him.  Otherwise, the Magistrate can not take action under this section.  Temporary presence within the limits of the Magistrate’s jurisdiction is sufficient.  But, then the presence must be at the time when the proceedings are initiated.

1142.    (1)  The object of this section also is preventive and not punitive, and action under it is not intended as a punishment for past offences.  It is aimed at protecting society from dangerous characters against the perpetration of crimes by placing them under such substantial but not excessive security as would prevent them from resorting to evil courses.

(2)  To sustain a charge under clause (a), the person proceeded against must be proved to be by habit a robber, house-breaker, thief or forger.  The word “habit” implies a tendency or capacity resulting from the repetition of the same acts.

            (3)   To substantiate a charge under Clause (b), it must be proved that the person proceeded against is a habitual receiver of stolen property knowing the same to be stolen.

            (4) Clause ( c) is designed to meet the cases of persons who assist the thief  after theft by harbouring him, protecting him from discovery and arrest, and helping him to dispose of his property.  The acts, which amount to harbouring must be done with an intention  of screening the offender from legal punishment or of preventing him from being apprehended.

            (5)   Clause (d) prescribes certain offences, the habitual commission or abetment of  which, or the attempt to commit which, is ground for taking action under this  section.

(6)   Clause (e) contemplates  taking security when one  habitually commits or attempts to commit or abets the commission of offences  involving a breach of the peace.  The following are the offences within the purview of this clause :

            (i)  offences punishable under Chapter VIII of the Indian Penal Code,  other than those punishable under sections 143, 149, 153-A and 154, Indian Penal  Code,

            (ii)  assault or other similar offences, and

            (iii)   Criminal intimidation.

            This can be effectively used in curbing the activities of factionists.

            (7) Under Clause (g), “ a man of desperate and dangerous character”  means a person who shows such a reckless disregard of the safety of the person or property of his neighbours  that his being at large without security would be detrimental  to the community.

            (8) Section (2) of Section 41 empowers the Police to arrest without warrant certain classes of habitual offenders described in section 110 of the Code of Criminal Procedure.  Proceedings under Section 110 of the Code of Criminal Procedure  may follow an arrest under Section of 41(a) of Code of Criminal Procedure.

1143.    (1) Sub-Section (4) of  Section 116 provides that the fact that a person is a habitual offender may be proved by evidence of general  repute or otherwise.  The general reputation of a man is that which he bears amongst the people in the place in which he lives.  Vague and general statements that a man is a habitual offender is not sufficient evidence on which he is liable to be bound over under Section 110.  It is very important that evidence of bad repute should  be reliable.  It is essential that witnesses should be able to give intelligent reasons for their believing the respondent to be a bad character.  Hearsay evidence amounting to general repute is admissible for the purpose of proceedings under Chapter VIII of the Code.

            (2)   Although witness may be examined as to the respondent’s general character, their testimony is not of  much value as to the habits of a suspected person, unless they can, in support of their opinion,  adduce instance of the misconduct imputed.  When the person against whom proceedings under Section 110 are instituted for being a habitual offender,  a well known resident of the locality and his fellow citizens though not living in his immediate neighborhood, are competent   witnesses to his general repute.  General repute can be proved not only by such opinion evidence as is referred to above, but also by letting in other evidence which is sanctioned by the general law as enunciated in the Evidence  Act.  Such evidence may be evidence of specific acts, previous convictions or association with bad characters.  A Police Officer who deposes to the reputation of the respondent should give the basis of his knowledge and point out how he came to consider him a man of bad character.

            (3)   Previous convictions are admissible in evidence, but they are not conclusive proof in  a case under Section 110.  Its evidentiary value increases when there is also evidence of general repute of definite acts subsequent to the respondent’s release from jail.  These acts should comprise preferably reported instances.

            (4)   The History Sheet is privileged document and is not generally produced in evidence.  Information contained in it should be proved by the evidence of persons who have direct and first-hand  knowledge of them.

            (5)   If the respondent is an ex-convict, the officer-in-charge of the Police Station can also put in evidence and prove a statement showing a marked decrease in crimes when the respondent was in jail and a marked increase when he was outside.

            (6)  When evidence of  suspicion against the respondent in certain crimes is spoken to by a Police Officer, he must substantiate his suspicion by giving cogent and convincing reasons.  A vague suspicion is not enough to warrant the respondent being bound over under Section 110.  Evidence of misconduct should relate to recent incidents and not acts committed by the respondent years ago.

1144.    Where several persons are jointly put up under Section 110, evidence of the offences by each of them should not be admitted as against others unless concert between them is shown.

SECTION 109 OF THE CODE OF CRIMINAL PROCEDURE

1145.    Before a person can be proceeded against under Section 109 of the Code of Criminal Procedure, he must be found to be taking precautions to conceal his presence and there must be reason to believe that he is taking the precautions with a view to committing any offence.  Merely  because a person hid his face by means of a cloth when his presence was noticed by somebody going on the road at midnight, it cannot be said that he was taking precautions to conceal his presence.  Again, from the mere fact that at the sight of the Police Officer, he began to move briskly and when called out he ran,  it cannot be said that he was taking precautions to conceal himself.  It has also been held that  by mere possession of a crow-bar by a person without any precautions being taken to conceal his presence, the requirements of Section 109 (a) of the Code of Criminal Procedure cannot be said to have been satisfied. The person proceeded against must have taken precautions to conceal his presence with a view to committing an offence.  Mere disinclination for the society of the police amounts to no concealment.  Mixing with the crowd or moving in and out of the crowd or ‘dashing’ into it in a railway shed does not amount to taking precautions to conceal one’s presence.

1146.    The following  illustrations are given as examples of  cases coming under Section 109 (a) of the Code of Criminal Procedure.

(i)                  A person concealing himself at night with his companions in  hedges near a village, giving wrong name and address and being unable to explain his presence in hedges at night with house-breaking implement  and refusing to disclose identity of his companions who had escaped into jungle.

.           (ii)       The respondent giving false name and address to the police was seen 

                        attempting to feel the pockets of crowds at the railway station, appearing

                        originally at  9 a.m. and suddenly disappearing for two hours and re-

                        appearing at 11 a.m.

             (3)  As regards concealment, it has been held that it need not be continuous.  Even a single attempt at concealment may be enough.

1147.    Proceedings  under  both  the  sections  (Section  109  and  110  of  the  Code  of

Criminal Procedure ) cannot be taken against one and the same individual  at one and the same time.

1148.   Reports under Section 109 and Section 110  of the Criminal Procedure Code shall be countersigned by a superior officer before they are presented to the courts initiating proceedings under those sections, unless ordered to be put in by a Magistrate.  When an officer is really unable to submit the report for countersignature, he shall present the report to the court and send a copy of it to the Superintendent.

1149.    (1)  Once information is laid before the Magistrate, it cannot be withdrawn.  Section 321 of  the Code of Criminal Procedure has no application to security proceedings.

            (2)  Copies of statements of witness recorded by the Police Officer need not be provided to the respondent, as the information laid before a Magistrate is not a Police report coming within the purview of Section 173(4) of the  Code of Criminal  Procedure.

            (3)    Under Section 116 (2 )  of the  Code of Criminal  Procedure  procedure as for as a summons case has been prescribed for all inquiries to Sections 107, 109 and 110 of the Code of the Criminal Procedure.

1150.    (1)  The Superintendent should specially ensure that security proceedings initiated under Sections 107, 109 and 110 of the Code  are concluded with utmost expedition in the courts.

            (2)  The Court before which proceedings are initiated should be promptly moved for an order under Sub-Section (3) of Section 116 of the  Code pending completion of the inquiry under Sub-Section (1) of that Section.  The Superintendent should ensure that such  action is unfailingly taken by the officer conducting prosecution.

(3)  When there are objections to raise the sureties tendered in pursuance of an order made under  (3) of  Section 116 or Section 117 of the Code, the Police should raise without delay.

1151.    Further inquiry can not be ordered under  Section 398 of the Code of  Criminal Procedure into the case of a person discharged under Section 118 of the Code of Criminal Procedure.  In Such cases, the District Magistrate has power under Section 401 of the Code of the Criminal Procedure to report  for the orders of the  High Court.