Bharatiya Nagarik Suraksha Sanhita, 2023
Section 136
Order to give security
If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond or bail bond, the Magistrate shall make an order accordingly: Provided that—
(a) no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 130;
(b) the amount of every bond or bail bond shall be fixed with due regard to the circumstances of the case and shall not be excessive;
(c) when the person in respect of whom the inquiry is made is a child, the bond shall be executed only by his sureties.
Why this exists
This provision continues India's long-standing 'preventive justice' framework, inherited from the colonial-era Criminal Procedure Code (originally sections like 106-124, later CrPC Section 118), which allows courts to bind over people believed likely to disturb public peace or repeat bad conduct — without waiting for an actual crime. The safeguards here (matching the earlier notice, keeping amounts reasonable, protecting children) were built in to prevent magistrates from using this preventive power arbitrarily or punitively, since it restricts liberty before any offence has occurred.
How courts read it
Under the identically-worded predecessor, Section 118 of the CrPC, courts have generally held that magistrates must apply judicial mind and cannot impose security that exceeds what was proposed in the initial order, and that the amount must be tied to the person's means and the real risk involved, not used as an excessive or punitive measure. Judicial guidance has treated these preventive-detention-style powers as needing careful, proportionate use since they curtail liberty pre-emptively.
Common misconceptions
- Myth: The Magistrate can increase the bond amount or extend its duration after the inquiry if they think the person is dangerous.
Fact: The law specifically forbids this — the final bond cannot exceed the nature, amount, or duration already specified in the earlier order under Section 130. - Myth: A child accused under this process must personally sign the bond just like an adult.
Fact: The law requires that only the child's sureties execute the bond, not the child themselves.