The Delhi High Court said that Special Executive Magistrate's notice to execute a personal bond of ₹10,000 with one surety to maintain peace during an inquiry after she was detained last week, was not merely based on hearsay material but also based on case diary entries lodged at different police stations pertaining to different events.

The court however directed the State to provide all materials to Bora which would be relied upon at the time of enquiry and based on which the Notice was issued, when Bora appears before the SEM.

Justice Subramonium Prasad in his order noted that the material shown by the Respondent/State showed that a prohibitory order dated 24.08.2026 was issued Section 163 of the BNSS by the Assistant Commissioner of Police, Sub-Division, Barakhamba Road, New Delhi, covering the entire jurisdiction of the Police Station Barakhamba Road and Tilak Marg falling within Sub-Division of Barakhamba Road, which also covers the Mandi House area.

The court thus rejected the petitioner's argument that Mandi House, where the Petitioner was protesting was not covered under the prohibitory order issued under Section 163 of the BNSS.

The high court said that Proceedings under Chapter IX of the BNSS are initiated by the SEM not on the number of incidents, but the nature of the act and the attendant circumstances, which would aid the SEM to consider whether there is an apprehension that there is a propensity of breach of peace by such person. It said that all of this "purely based on the subjective satisfaction of the SEM".

"Even one incident is sufficient for initiating proceedings under Chapter IX of the BNSS, if the circumstances so suggest that there is an apprehension that such a person will indulge in further incidents of the same nature which can breach peace and disturb public tranquillity. In the present case, it has been recorded that the Petitioner has breached the orders under Section 163 of the BNSS despite being warned. This Court is not commenting further on the facts as it will adversely affect the rights of the Petitioner and the Respondent/State, but is only making this observation to consider as to whether there was sufficient material for the SEM to arrive at a subjective satisfaction to proceed under Chapter IX of the BNSS," the court said.

Referring to the material, the court observed that SEM had "duly examined" the information received by him, including the three general diary entries along with kalandara (case file) dated 17.10.2026 and examined the three witnesses, which would satisfy the requirements under Sections 126 and 130 BNSS.

The court further observed that it was not necessary for the SEM has to investigate "like a fact-finding authority" while forming an opinion regarding apprehension of breach of peace under Chapter IX of the BNSS which is preventive and not punitive in nature.

Holding that at the stage of show cause notice, the high court cannot sit in the SEM's place and examine the subjective satisfaction the court said:

"As stated earlier, this case is only at the stage of show cause notice where this Court cannot substitute its conclusion to the one arrived at by the SEM on the basis of material before him. The present case is not based merely on hearsay material, as contended by the learned Senior Counsel for the Petitioner, but is also based on the kalandara dated 17.10.2026, which consists of the three (03) general diary entries registered at different Police Stations pertaining to different dates and events. As such, this Court cannot sit in the armchair of the SEM to test the subjective satisfaction of the sufficiency of material and as to whether the opinion has been correctly been arrived at by the SEM or not".

The court said that the Supreme Court's principles laid down in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (1970) pertaining to conduct of enquiry and execution of bond had not been violated at this stage.

It further directed that the SEM shall ensure that the principles laid down by the Apex Court as well as by the High Court and the provisions of Chapter IX of the BNSS are not given a go by at later stages of the proceedings against the Petitioner also.

It however left it open to the SEM to decide on insistence of peace bond at the "first instance" and said:

"In view of the foregoing discussion, this Court is of the opinion that the Impugned Notice meets the requirements of a show cause notice under Chapter IX of the BNSS. However, it is always open to the Petitioner to raise a challenge at an appropriate stage. This Court, however, deems it fit to state that the SEM must necessarily keep in mind the import of Section 135 of the BNSS and leaves it open for the SEM to decide on the insistence of a bond at the first instance, as the provision provides for furnishing a bond only if there is an apprehension of breach of peace or disturbance after the commencement and before the completion of the enquiry".

The court however clarified that while passing an order under Section 135(3) of the BNSS, the SEM will take into account the safeguards given by the Supreme Court in Madhu Limaye judgment.

The court also said that there will be several opportunities to the Petitioner to take recourse to the remedies under law at different stages of enquiry, including after passing of the final order upon conclusion of the enquiry.

The court also clarified that its observations are only limited to the purport of interference under Article 226 of the Constitution of India at the stage of issuance of a show cause notice. The SEM would apply his own mind to the material/information placed before him and only then, arrive at a conclusion regarding furnishing of a personal bond or bail bond, the court added.

Bora challenged an October 17 notice issued by a Special Executive Magistrate under Sections 126 (Magistrate may show cause an individual why peace bond may not be executed if he receives information that a person is likely commit a breach of the peace) and 130(when the Magistrate acting under section 126, section 127, section 128 or section 129, deems it necessary to require any person to show cause under he shall make an order in writing mentioning certain particulars) BNSS, read with Section 135(3) BNSS.

Under Section 135(3) Magistrate can, 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. The proviso states where no proceedings are taken against a person under sections 127, 128, or 129 then such person shall not be directed to execute a bond or bail bond for maintaining good behaviour.

The petition was dismissed.