Recently, the Calcutta High Court set aside an order of an Executive Magistrate directing the detention of an accused after cancelling an interim good behaviour bond in proceedings initiated under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Court held that preventive powers must be exercised strictly within the statutory framework and that an interim bond executed during a pending inquiry cannot be treated as a final security bond for the purpose of ordering imprisonment. Emphasising the safeguards surrounding personal liberty, the Court cautioned that preventive jurisdiction cannot be invoked mechanically without following the procedure mandated by law.
Brief Facts:
The dispute arose from preventive proceedings initiated against the petitioner under Section 129 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which empowers an Executive Magistrate to require security for good behaviour from habitual offenders likely to disturb public peace. Acting on a report submitted by Watgunj Police Station alleging that the petitioner was a habitual offender involved in offences such as kidnapping and extortion, the Executive Magistrate initiated proceedings and issued a production warrant under Section 132 BNSS as the petitioner was already in custody in another case. Upon his production before the Magistrate, the petitioner sought copies of the materials relied upon. Subsequently, the Magistrate directed the petitioner to furnish an interim bond of Rs.5,000 with four sureties.
Later, after the police informed the court that the petitioner had been arrested in another criminal case, the Magistrate cancelled the interim bond and ordered his detention under Section 141 BNSS, directing that he remain in custody until the completion of the preventive inquiry. Challenging this order dated 20 November 2025, the petitioner approached the High Court seeking quashing of the detention and continuation of the preventive proceedings.
Contentions of the Petitioner:
Counsel for the petitioner argued that the Magistrate had exercised preventive jurisdiction in violation of the statutory safeguards under the BNSS. It was contended that Section 135(3) BNSS permits the imposition of an interim good behaviour bond only after the commencement of an inquiry and only when immediate preventive measures are necessary. In the present case, the Magistrate allegedly directed execution of the bond without recording reasons demonstrating any imminent threat to public peace. The petitioner further relied on the High Court’s earlier ruling in Rajesh Pratap Tanti v. State of West Bengal and the Supreme Court’s decision in Madhu Limaye v. Ved Murti to argue that preventive proceedings cannot curtail personal liberty without a proper inquiry conducted in the manner of a summons trial. It was also submitted that the detention order under Section 141 BNSS was legally untenable because that provision applies only where a final bond under Section 136 BNSS is breached, whereas the bond executed by the petitioner was merely an interim bond pending inquiry.
Contentions of the Respondent:
The State opposed the petition, contending that the preventive proceedings were lawfully initiated under Section 129 BNSS against a person with long-standing criminal antecedents posing a threat to public order. According to the State, the Magistrate had already commenced the inquiry by issuing a show cause notice and supplying relevant materials to the petitioner. The petitioner voluntarily executed the bond and was released on that basis. However, after his subsequent arrest in another criminal case, the Magistrate was justified in cancelling the bond and initiating action for breach of its conditions. The State maintained that preventive jurisdiction is intended to avert anticipated breaches of peace rather than to punish past conduct, and therefore the Magistrate’s actions were reasonable, proportionate, and consistent with the preventive framework of the BNSS.
Observations of the Court:
The Court undertook a detailed examination of the statutory framework governing preventive proceedings under Sections 129, 135, 136 and 141 of the BNSS. It noted that the bond executed by the petitioner was an interim bond under Section 135(3) pending completion of the inquiry and not a final bond under Section 136. The Court observed that the power to order imprisonment under Section 141 arises only when a final bond executed under Section 136 is proven to have been breached. Since no final order directing security for good behaviour had been passed after a completed inquiry, the essential jurisdictional requirement for invoking Section 141 was absent.
The Court further emphasised that preventive powers affecting personal liberty must be exercised with strict adherence to procedural safeguards. Referring to the statutory scheme, the Court noted that an interim bond can be directed only where the Magistrate records objective satisfaction that immediate measures are required to prevent a breach of peace. The impugned order, however, did not disclose any such reasoning. Highlighting the importance of evidence-based inquiry, the Court observed that “mere referring to past cases or police allegations cannot amount to an inquiry which entails evaluation of evidence, examination of witnesses and application of judicial reasoning.”
Relying on the Apex Court’s observations in Madhu Limaye v. Sub-Divisional Magistrate, the Court reiterated that restrictions on liberty must follow the procedure prescribed by law, noting that “the liberty of the person is involved and the law is rightly solicitous that this liberty should only be curtailed according to its own procedure.” The High Court also criticised the approach of detaining the petitioner first and summoning witnesses later, holding that “the statute does not contemplate detention first and inquiry thereafter.”
The decision of the Court:
Allowing the petition, the Court set aside the order dated 20 November 2025 by which the Executive Magistrate had cancelled the interim bond and directed the petitioner’s detention. The Court held that imprisonment under Section 141 BNSS can arise only after breach of a final security bond ordered under Section 136, and not merely on the alleged violation of an interim bond executed during the pendency of an inquiry.
Case Title: Rakesh Kumar Singh vs. The State of West Bengal & Anr.
Case No.: CRR 5090 of 2025
Coram: Hon'ble Juctice Dr. Ajoy Kumar Mukherjee
Advocate for the Petitioner: Sr. Adv. Rajdeep Majumder, Adv., Mouyukh Mukherjee, Adv. Sagnika Banerjee
Advocate for the Respondent: Ld. APP r. Debasish Roy,r. Debasish Roy, APP . Rudradipta Nandy, Adv. Aniket Mitra
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