Section 138: Imprisonment in Default of Security

Overview

Section 138 of the Bhartiya Nagrik Suraksha Sanhita, 2023, deals with the consequences of failing to provide security as ordered by a court. This security is usually required when someone is asked to keep the peace or maintain good behaviour. It falls under the realm of preventative action and procedural law.

Purpose of the Provision

This provision ensures that individuals who are required to provide security for maintaining peace or good behaviour actually comply with the court’s order. It prevents potential disruptions and ensures the safety of the community. Without this, a court order for security could be easily ignored.

Step-by-Step Procedure

• Step 1 – Court Order & Notice: A court (usually a Magistrate) first orders a person to give security for keeping the peace or good behaviour. The person is given a notice specifying the amount and form of security required.
• Step 2 – Default: If the person fails to provide the security within the time specified by the court, they are considered to be in default.
• Step 3 – Imprisonment: Upon default, the court can order the imprisonment of the person. The length of imprisonment is determined by the court, based on the circumstances.

Rights and Safeguards

• Right to be Heard: The person must be given a reasonable opportunity to explain why they haven’t provided the security.
• Judicial Discretion: The court isn’t *required* to imprison someone in default. It has the discretion to consider the reasons for the default.
• Reasoned Order: The court should record its reasons for ordering imprisonment.
• Production Before Magistrate: If arrested, the person must be produced before a Magistrate without unnecessary delay.

Practical Examples

• Example 1: A Magistrate orders Mr. Sharma to provide a security of ₹10,000 to keep the peace due to a dispute with his neighbour. Mr. Sharma fails to deposit the amount within the given timeframe. The Magistrate, after hearing his explanation, orders him to be imprisoned for one month.
• Example 2: Ms. Verma is asked to provide security for good behaviour after a minor altercation. She is facing financial hardship and cannot immediately arrange the funds. She explains this to the court. The Magistrate, considering her situation, may extend the deadline for providing security instead of ordering imprisonment.

Difference from Old CrPC Provision (if applicable)

The BNS Sanhita largely retains the core principle of the corresponding provision in the old CrPC (Section 125). There are no significant changes to the procedure or the power to imprison in default of security.

Key Takeaways

Remember that Section 138 empowers courts to imprison individuals who fail to comply with orders requiring security for peace or good behaviour. The court has discretion, and individuals have the right to be heard. Always comply with court orders regarding security, or seek legal advice if you face difficulties.