The Delhi High Court last week dismissed AISA leader Neha Bora's plea challenging a 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 at Mandi House during a protest on October 16.

In doing so the court ruled that notice was "purely based on the subjective satisfaction of the SEM" who 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.

While the high court said that the SEM is not required to probe like a fact-finding authority while forming opinion on apprehension of breach of peace which is preventive and not punitive in nature, it also said that at the stage of show cause notice, the high court cannot "sit in the armchair of the SEM" and test subjective satisfaction. 

The decision throws light on the procedure enshrined under BNSS which empowers the Magistrate to direct a person to execute a peace bond as well as the instances when such power can be exercised. 

Notably, an order directing execution of a peace bond is a preventive mechanism to ensure that a person who may breach public peace is restrained from doing so. Further no FIR or an offence is needed to invoke passing of a peace bond order. 

Instances when show cause notice can be issued 

The BNSS provides the legislative scheme wherein an Executive Magistrate can issue show cause notice to a person for a host of reasons:

1. Section 126 empowers the Magistrate to ask a person to show cause why a peace bond should not be executed if the magistrate receives information that the person is likely commit a breach of peace.

2. Section 127 empowers an Executive Magistrate to require a person to show cause why he should not be asked execute a bond for good behaviour for up to one year.

This section is triggered when the Executive Magistrate receives information that there is a person who is disseminating or attempts to disseminate or abets dissemination of publication punishable under BNS Sections 152 (Sedition) or 196 (promoting enmity between communities) or 197 (assertions or appeals prejudicial to national integration) or 299 (deliberate and malicious acts intended to outrage religious feelings) or defamatory/criminally intimidating content against a Judge; or any obscene material. 

3. Under Section 128 when an Executive Magistrate receives information that there is a person who is trying to conceal his presence to commit a cognizable offence, the Magistrate may ask the person to show cause why he should not execute a peace bond. 

4. Meanwhile under Section 129 the Executive Magistrate can ask a person to show cause on execution of peace bond for three years where the magistrate receives information that the person is a habitual offender. 

The Magistrate must issue a show cause notice in a written order, Section 130 explains, 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.

What happens after show cause notice is issued

If the person to whom such show cause notice is issued, is present in court, then order passed under Section 130 will be read over to him, and if he desires the substance of the order shall be explained to him (Section 131). 

However if the person is not present in Court, the Magistrate under Section 132, shall issue summons to the person. If the person is in custody, the Magistrate will issue a warrant directing the officer in whose custody the person is to bring him before the Court. 

Section 133 mandates that every summons or warrant issued under section 132 shall be accompanied by a copy of the order made under section 130. The copy of the order shall be delivered by the officer serving or executing such summons or warrant to the person.

Section 134 states that the Magistrate can also dispense with the person attendance of the person and can permit him to appear through an advocate. 

Inquiry by Magistrate

After this stage, under Section 135(1) Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and will take further evidence as may appear necessary. This inquiry is to be made in the manner prescribed for conducting trial/recording evidence in summons-cases.

Under Section 135(3) Magistrate can, for reasons to be recorded in writing, direct the person to whom show cause notice is issued, to execute a peace bond until the conclusion of the inquiry and may detain him in custody until such 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.

Further the conditions under the bond shall not be more onerous than those specified in the show cause notice order under section 130. 

Section 135(6) mandates that this inquiry shall be completed within 6 months from the date of its commencement. In case the inquiry is not completed within 6 months, the proceedings shall stand terminated on the expiry of 6 months, unless the Magistrate for "special reasons" otherwise directs. This means that the Magistrate can direct continuance of inquiry beyond 6 month period as well.  

However Section 135(7) states that a Sessions Judge may vacate continuation of inquiry under Section 135(6) if the court finds that the reasons so cited were not "special reasons" or were perverse. 

After inquiry is concluded

After the inquiry is conducted and it is proved that execution of peace bond is necessary, the Magistrate shall pass such an order under Section 136. Provided the security amount or period shall not be different from that specified under show cause notice order. 

Further the bond amount shall be fixed after taking "due regard to the circumstances of the case and shall not be excessive". In case the person in respect of whom inquiry is made is a child, then the bond shall be executed only by his sureties.

In case it is not proved after the inquiry that the peace bond is needed, the Magistrate shall under Section 137, make an entry on the record to that effect. If such person is in custody only for the purposes of the inquiry, then Magistrate shall direct his release; incase the person is not custody the Magistrate shall direct his discharge. 

Magistrate empowered to reject sureties

Section 140 states that a Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor under Chapter IX on the ground that the surety is an unfit person for purpose of the bail bond. 

Provided that before rejecting such surety, the Magistrate shall either himself hold an inquiry into the fitness of the surety, or direct an inquiry by a Magistrate subordinate to him who shall furnish a report.

Can peace bond order be challenged

If the SEM passes an order directing the person to execute a peace bond at the interim stage pending conclusion of inquiry, it can be challenged in a criminal revision petition under Section 438 BNSS before the Sessions Court. 

While it can be argued that peace bond order is an interlocutory order against which revision is not permitted, however courts have held that where Magistrate directs furnishing of surety bonds, it does not remain interlocutory in nature and amounts to a final order. The Supreme Court in Amar Nath And Others vs State Of Haryana (1977) said that any order which substantially affects the rights of the accused cannot be said to be an interlocutory order so as to bar a revision. 

Applying the decision in Amar Nath, the Karnataka High Court in Ankaputtaswamy And Others v. Papegowda And Others (1978) ruled that orders issued by the Sub-Divisional Magistrates therein calling upon the petitioners to show cause as to why they should not be ordered to execute peace bonds were not interlocutory orders within the meaning of Section 397(2) CrPC and could be challenged in revision. 

Meanwhile, under Section 414 BNSS, a person who is directed to give security for keeping the peace or for good behaviour under Section 136 (which is after conclusion of inquiry) or who is aggrieved by any order refusing to accept or rejecting a surety under Section 140, may appeal against such order before Sessions Court.

What have courts said

While there are several judgments interpreting the scope of the Magistrate's powers under Chapter VIII CrPC/Chapter IX BNSS, the scope of the Magistrate's powers have been comprehensively examined by a constitutional bench decision, the Supreme Court in Madhu Limaye v. Sub Divisional Magistrate, Monghyr (1970).

A seven-judge bench of the Supreme Court upheld the constitutional validity of Section 144CrPC (now Section 163 BNSS) as well as Chapter VIII of the Code (now Chapter IX–Sections 125–143 BNSS), terming them reasonable restrictions on fundamental rights under Article 19(1)(a)–(d).

The Court however, said personal liberty can be curtailed only as per procedure and not on the "whim of a magistrate". 

The Court ruled that a Magistrate's order demanding an interim bond and remanding a person to custody pending inquiry is illegal if the inquiry has not actually commenced and if the magistrate has not recorded prima facie satisfaction based on evidence.

The Court said that even at a preliminary stage the Magistrate is required to ensure that a prima facie case does exist for the purpose of initiating proceedings against the person who is to be called upon to furnish security for keeping the peace.

It further said that the person has a right to be represented by a lawyer and can also ask for a reasonable adjournment for it. It further said that it was not open for the Magistrate to adjourn the case without' entering upon an enquiry and in the interval send the person to jail if he fails to furnish a bond.

This decision has been followed by the Delhi High Court in Aldanish Rein v. State(NCT of Delhi) (2018) wherein the division bench observed that Special Executive Magistrate has to apply his mind to an application seeking remand and find out in fact if an order of judicial remand is warranted. The court slammed the use of "cyclostyled orders" passed by SEMs. 

Can execution of peace bond bar registration of subsequent FIR

While Article 20 of the Constitution protects against double jeopardy and lodging of second FIR based on same incident, however it does not prevent lodging of a subsequent FIR after execution of a peace bond as the two are distinct tools. 

This is because peace bond order is a preventive tool unlike an FIR which is punitive in nature. 

Recently the High Court of Jammu & Kashmir and Ladakh in Brij Lal and others v. Union Territory of J&K and others (2026) observed that while proceedings under sections 107 CrPC (Section 126 BNSS) and 117 CrPC (Section 136 BNSS)  are "preventing in nature", proceedings initiated pursuant to registration of an FIR are "punitive in nature". Hence, argument of double jeopardy in such a situation cannot be invoked. 

This leads to the question whether registration of a subsequent FIR is sufficient to conclude breach of peace bond. The Madras High Court in Ram Kumar v/s State of Tamil Nadu (2026) held that an FIR is the earliest information regarding the commission of a cognizable offence and sets the investigative machinery in motion. The High Court said that an FIR is not substantive evidence; "Equally, it cannot by itself conclusively establish breach of the conditions of a preventive bond".

The High Court held that the Magistrate must come to a subjective satisfaction on the breach of peace bond, which cannot be substituted by mere existence of an FIR.