Group no.

21

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

Security Proceedings under CrPC, 1973: An analysis into the

application of Sections 109 and 110

Submitted to: Submitted by:

Mr. Ankit Kaushik Sakshi Srivastav
Asst. Prof. of Law Roll no. 18135
 CERTIFICATE

Mr Aniket Kaushik Place: Patiala

Rajiv Gandhi National University of Law, Punjab

Date- 14/04/2022

This project, entitled “Security Proceedings under CrPC, 1973: An analysis into the
application of Sections 109 and 110”is a bonafide work of Sakshi Srivastav, a third year
student at RGNUL, Punjab, which has been made under my supervision and guidance.
No part of this project has been submitted to any other university for the award of any degree
or diploma whatsoever.

Mr Ankit Kaushik
 Introduction

Chapter VIII of the Code of Criminal Procedure, 1973 deals with security proceedings
conducted by the courts. It is not only the duty of criminal justice system to bring the
offender to justice but it also ensures that such offences are not repeated.

Keeping this in consideration, the legislators farmed Sections 106 to 110 into the code to
empower the courts to conduct security proceedings to prevent convicted offenders and
habitual offenders from reiterating such acts.

This is an instance of preventive justice whoch courts seek to administer under Chapter VIII
of the CrPC. The provisions under the security proceedings are in aid of an orderly society
and seek to nip in the bud the conduct subversive of peace and public tranquillity.1

The underlined object of these proceedings is preventive and not punitive, the sections are
designed to enable the Magistrate to prevent commission of offence involving breach of
peace and disturbance of public tranquillity. The object of these sections are that they can be
invoked in emergent situations when prompt actions necessitated to deal with threatened
apprehension of breach of peace.2

However, given the preventive nature of these sections, the threat of violation of fundamental
rights by their hands increases. This project focuses on Sections 109 and 110 of the CrPC that
deal with security for good behaviour from vagrants, suspected persons, persons with no
ostensible means of living and habitual offenders. The aim of the project is to analyse these
Sections to the core and emphasize upon the inherent risks accompanying them.

Security for Good Behaviour: the provisions

CrPC, 1973 focuses upon, inter alia, maintenance of law and order in the community as a
matter of prime importance. Thus, to attain this purpose, the code empowers the functionaries
to obtain security from certain classes of persons. Some of the few classes of persons that
form the subject matter of this project are:
1
Madhu Limaye v/s Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746.
2
Rajendra singh Pathania v/s State, NCT of Delhi, 2011 13 SCC 329.
  Suspected Persons – Section 109 of the Cr.P.C provides a procedure to “check and control
the persons who are likely to commit offences” and it cannot be denied that this cannot be
done unless they are prevented from doing so by resorting to provisions such as Section 109. 3
“The provisions of Section 109 are so stringent that it may be made an engine of oppression
unless care is taken by the Magistrates to prevent its abuse. The object of the section is to
enable the Magistrate to take action against suspicious strangers lurking within their
jurisdiction.4” While explaining the scope of the terms “conceal presence” under Section
109, the court in Abdul Ghafoor v. Emperor5 held that “these words are sufficiently wide 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 in any other
way”.6

Now, in order to apply the provisions of Section 109, the courts have laid down two essential
conditions:

i. The person must be taking precautions to conceal his presence, and

ii. The concealment must be with a view to committing a cognizable offence.7

 Habitual offenders – Persons who “habitually commit offences of anti-social traits” 8 “like

food adulteration or customs or corruption, not only deserve to be punished but certain action
is required to be taken against such persons to prevent recidivism on their part. The provision
deals with offences which are anti-social in nature, i.e. those directly affect the society at
large. For instance, theft may be an offence against the society but, however, it directly
affects the one whose materials have been stolen. On the other hand, food adulteration affects
everyone in general.””
 In Emperor v. Vijaidatta Jha,9 the court averred that “the object of the section is to protect the
public against hardened and habitual offenders”. The information received by the police
officer under this section “should not be vague and must indicate that person against whom
the information is given is by habit an offender”.10

3
Ratanlal and Dhirajlal, Commentary on the Code of Criminal Procedure, 2011 (18th ed., 2006)
4
Dasappa v. State of Karnataka, 1975 Cri. L.J 1613 (Kant).
5
AIR 1943 All 367.
6
Ibid.
7
State of Mysore v. Koti Poojari, AIR 1965 Mys 264.
8
Ratanlal and Dhirajlal, Commentary on the Code of Criminal Procedure, 2241 (18th ed., 2006)
9
AIR 1948 Nag 28.
10
Re: Narendra Nath Jha, AIR 1938 Pat 533.
Therefore, in all these situations, the code entails that an Executive Magistrate is obliged to
issue a show-cause notice urging the person to state his reasons and explain why the
Magistrate must not require him to execute a bond to ensure peace and serenity in the society
if such person fails to show cause or the Magistrate is not satisfied with his cause, he may
order such person to execute a bond with the condition of not repeating the offence.

The existence of a certain class of persons known as vagrants, vagabonds, rogues etc., has
always caused grave concern to civilised societies all over the world. But the juridical
treatment of this class creates a certain anomaly in criminal jurisprudence. Since criminal
sanctions are serious curtailments of individual liberties and dignity they should be imposed
only when they are the sole means of serving the larger interest of society. So, customarily
criminal liability depends on two elements : a) conduct (which includes mens rea) 11 and b)
harm. Vagrancy type laws, however, depart from this principle since they punish persons
simply for having a specified status. The purpose of treating mere status as punishable is said
to be to protect society against possible anti-social activities of the class of people who
occupy this status. Although prevention of crimes is as important as the punishment of
criminals, this hardly justifies the presumption, without any factual evidence that all vagrant
persons are generally potential criminals. Making status-criminality a part of criminal policy
(with the possibility of abuse raises a question of individual dignity, wherein the justification
of such a polic becomes an important consideration. But no sound conclusions can be drawn
in this regard without a relative assessment of the benefits and danger implicit in the
administration of these vagrancy type laws.

Even status-criminality forms an integral part of criminal policy of most of the countries.
People are punished, inter alia, for having "no ostensible means of living”.12 This leads us to
another important controversial ground, namely, how far today's welfare state can be justified
in condemning a citizen without any means of living when to do so is to ignore its own
responsibility to provide an opportunity to earn that living.13

History

11
Jerome Hall, Studies in Jurisprudence and Criminal Theory, pg no. 158.
12
Vagrancy Act of 1924, Sec. 3 (England) ; Criminal Procedure Code, Sec. 109 (India).
13
Khan, M. R. A. (1963). SOCIOLOGICAL IMPACT OF SECTIONS 109 AND 110 OF THE CRIMINAL
PROCEDURE CODE. Journal of the Indian Law Institute, 5(4), 498–508. http://www.jstor.org/stable/43950577.
The first attempt under the English law regarding vagrancy is found in certain clauses of
Statute of Labourers, 1349 and 1350. 14 These statutes however were primarily directed
toward wage stabilisation during a period of labour shortage immediately after the Black
Death.15 The first statute primarily directed at the problem of vagrancy was the Vagrancy Act
of 1824, almost 375 years later, and was essentially a preventive measure quite unrelated to
any purpose to stabilize wages.16

The common law concept of vagrancy was imported into India in 1793. 17 Later, with some
variations, it was incorporated in the Criminal Procedure Code, 1861. The above provisions
were reproduced without any change in the Criminal Procedure Code, 1872. In brief, under
section 504 of this Act the magistrate, if he receives information that any person has no
ostensible means of subsistence or cannot give a satisfactory account of himself may require
the person to show cause why he should not be ordered to execute a bond with sureties, for
his good behaviour for a period of six months. Anyone who having been ordered to execute
such a bond, failed to do so, was to be imprisoned for the like period. It may perhaps be said
that the aforesaid sections show a certain awareness of the unjustifiability of status-
criminality and make a clear improvement on similar laws of certain other legal systems in
the sense that it does not prescribe punishment but provides for supervision of the activities
of the classes covered by the sections. But the actual practice considerably minimises the
importance of this distinction. This code of 1872 was later replaced by the Criminal
Procedure Code, 1898, which re-enacted the above provision in sections 109 and 110. The
same (section numbers are the same too), with some changes (and later smendments) were
incorporated in the present code of 1973.

Apprehension of misuse

The loose wording of these provisions make them highly vulnerable to abuse. If the Indian
provisions were properly administered there would have been no cause for anxiety, but the
evidence presently available creates real misgivings about their social utility. This anxiety,
which stems from a general feeling of alarm in the countryside among the poorer sections of
the community about the operation of the sections, is reinforced by observations from very

14
Ibid.
15
Holdsworth, A History of English Law , Vol. 2, pg no. 460.
16
Khan, M. R. A. (1963). SOCIOLOGICAL IMPACT OF SECTIONS 109 AND 110 OF THE CRIMINAL
PROCEDURE CODE. Journal of the Indian Law Institute, 5(4), 498–508. http://www.jstor.org/stable/43950577.
17
ibid
high judicial quarters.18 Many magistrates have still dual responsibilities - admistrative as
well as judicial. They are appointed and controlled by the executive and not by the High
Courts and this creates the risk that they may take sides with the prosecution, even while
acting in their judicial capacity in the administration of criminal justice.19 This clearly
deprives the accused of an unbiased and fair trial. The number of persons arrested under these
sections is said to be very high, higher than under many of the provisions the Indian Penal
Code. A not uncommon practice is that when the number of cognisable offences in a police
station goes below the general average the higher authorities question the vigilance of the
officials of that police station. The deficiency is made up through registering cases under
these sections of the Code. On such occasions previous convicts are fetched from their homes
to the police station or poor wretched looking people quietly hauled from way-side railway
stations or roads and subsequently charged under section 109. There is internal evidence in
the reports of the cases that fabricated accounts of the occasions for these arrests form almost
identical pattern. Incriminating articles are generally alleged to have been discovered in the
possession of almost every person arrested.20 In villages where there are factions strongly
opposed to each other (the situation has been further aggravated due to Panchayat politics),
one party can secure the assistance of the police to break the morale of the other party. They
do this by implicating the rank and file of the opposition branding them as habitual criminals
etc., under S. 1 10 of Criminal Procedure Code.

In Emperor v. Kudua Bari,21 their Lordships Young and Sen, JJ., commenting upon the
evidence in that case, observed : "... Nothing is more easy than to put forward a general
charge against a certain person that he is a burglar and thief."

The SC ruling in Madhu Limaye’s case 22 legitimises the customary practice of

arresting those incapable of furnishing bonds under Chapter VIII, effectively
targeting marginalised persons. The Court reasoned that “to release a person being
proceeded against under Ss. 107/112 of the Code is to frustrate the very purpose of
the proceedings unless his good behaviour is ensured by taking a bond in that
behalf”. It is the duty of the State to protect the right of its subjects against any improper
encroachment. The State would not only be failing in its duty but be a transgressor itself if it
18
Sheik Peru v. King Emperor, A.I.R. 1925 Cal. 616.
19
Kartar Kaur v. The Crown , A.I.R. 1951 Punj. 422.
20
Ganga Ram v. The State , A.I.R. 1956 Him. 43.
21
A.I.R. 1930 All. 37.
22
(1970) 3 SCC 746.
forces an individual to defend himself and sometimes punish him not because he was guilty
but because he could not afford the cost of his defence. 23 In a civil case a defendant may only
lose some property if he decides not to contest, but if he does, and wins, he becomes entitled
to recover his costs from the plaintiff. On the other hand our criminal law provides no remedy
for compensation against the State to the accused who is proved to be innocent and unduly
harassed. This again is an unsatisfactory situation demanding attention to the vital need for
free legal aid and compensation to the accused.

Additionally, absolute discretion in deciding the bond amount and conditions under
the provisions of Section 110, without any objective parameters including the
accused’s socio-economic background often results in trapping individuals in
unrealistic bail parameters. The system has been known to operate very harshly
against the poor and criminalise poverty and marginalised identities. Intervention
data from Fair Trial Fellowship Programme (FTF) cases indicated that among the
inmates arrested under Section 110, around 80 percent had no known assets and 65
percent were not in touch with any family members, posing a serious impediment to
furnishing sureties. 
Since the nature of proceedings do not strictly fall under the ambit of criminal
trials, there is a tendency to ignore or treat requirements of mandatory legal
representation as merely directory, in proceedings under Section 110. The  Delhi
High Court, in the case of Aldanish Rein v. State Of Nct Of Delhi & Anr.24 observing this
to be problematic, reiterated that considering the socio-economic background of a
majority of offenders, the number of cases cannot be treated as an excuse for
overlooking statutory requirements. The danger of such lapses in procedure
become more evident in cases involving petty offences, wherein accusations tend to
be made with ease. Nothing is easier than to put forward a general charge against a
person stating such a person is a burglar and thief. Further, they often do not have
the avenues to challenge arbitrary exercise of powers before higher fora due to lack
of procedural awareness and systemic barriers. 
These provisions become particularly oppressive for persons from denotified tribes
and other groups whose identities are stereotyped with the taint of  inherent
criminality. Such circumstances often compel undertrials charged under the
23
Khan, M. R. A. (1963). SOCIOLOGICAL IMPACT OF SECTIONS 109 AND 110 OF THE CRIMINAL
PROCEDURE CODE. Journal of the Indian Law Institute, 5(4), 498–508. http://www.jstor.org/stable/43950577.
24
W.P. (Crl). No. 2039 of 2018.
aforementioned offences against property like theft, dacoity etc., to plead guilty,
which, when coupled with the prospect of release on sentence undergone, is often a
lucrative prospect for such inmates, who would otherwise languish in jail
indefinitely, awaiting trial. However, this also creates a record of conviction,
making them highly susceptible to repeated arrest for petty offences, and subjected
to proceedings for being a habitual offender.  

The above discussion, inter alia, raises the following very pertinent questions :

(1) Is it not anomalous to call the accused to be without any ostensible means of subsistence
and still expect from him to be able to meet the expenses or his defence? Should legal aid be
provided to such accused persons?

(2) Since a large number of persons apprehended at any place under section 109, Cr. P. C. are
unknown outsiders to that locality, who generally cannot procure the requisite sureties for
bail, should they not be provisionally released on conditions other than financial security ?

3) Since a large number of these proceedings are unwarranted, should not the State be
responsible to compensate those, falsely implicated and discharged for out of pocket
expenses, loss of liberty, loss of reputation and loss of earning etc?

(4) What other measures may be suggested for prevention of crimes or for the proper use of
these provisions?

(5) Since a large number of innocent defendants are harassed by not being released on bail
but ultimately discharged, what should be the maximum limit of time within which
proceedings be finally decided?

Conclusion
As elaborated above, procedures under Chapter VIII especially related to powers of
arrest under Sections 109 and 110 are vague and arbitrary. The provisions
disproportionately target persons from marginalised backgrounds and are highly
prone to abuse. The original purposes of sections 109 and 110 of the Criminal Procedure
Code, were undoubtedly proper, but there is a real possibility that a survey of the practices
now obtaining will reveal that the abuse of these provisions has actually forced more people
to life of crime than it has deterred from it. The current functioning of the
aforementioned sections ensure that persons from poor and marginalised
backgrounds who are most vulnerable remain entangled in a series of proceedings
within the criminal justice system. The tendency to imprison and the use of these
procedural lacunae to perpetrate the cycle of criminality with no intent of
rehabilitation against marginalised communities, needs to be questioned. In this
context, the framework of Chapter VIII also needs to be re-examined, in light of
jurisprudence that has evolved post Limaye especially in the context of guidelines
on substantive due process, and recognition of information privacy emphasizing
data protection to discourage hitherto prevalent invasive surveillance.