Section 122 CrPC: Imprisonment in Default of Security
Section 122 of the Code of Criminal Procedure, 1973 dealt with imprisonment when a person failed to furnish security ordered under Chapter VIII, and with detention for breach of a bond for keeping the peace. This article explains the provision as it stood before implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023.
- Failure to furnish security ordered under Section 106 or Section 117 could result in commitment or continued detention in prison for the relevant period, subject to the section.
- Breach of a bond for keeping the peace could lead to arrest and detention after the Magistrate recorded the grounds of proof.
- If security ordered by a Magistrate was for more than one year, the matter had to be placed before the Sessions Judge.
- The concerned person was entitled to a reasonable opportunity of being heard before the Sessions Court passed an order under sub-section (3).
- Imprisonment for failure to furnish security could not exceed three years.
Meaning and purpose of Section 122 CrPC
Chapter VIII of the CrPC contained preventive provisions concerning security for keeping the peace and for good behaviour. Section 122 provided the consequence when a person did not furnish security after a lawful order requiring it, and also addressed breach of a bond for keeping the peace.
For context, Section 106 concerned security for keeping the peace on conviction, while Section 117 empowered the Magistrate, after the prescribed inquiry, to order security for keeping the peace or for good behaviour. Sections 108, 109 and 110 dealt with specified categories of proceedings for security for good behaviour.
Text of Section 122 of the Code of Criminal Procedure, 1973
122. Imprisonment in default of security.
(1)(a) If any person ordered to give security under section 106 or section 117 does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case next hereinafter mentioned, be committed to prison, or, if he is already in prison, be detained in prison until such period expires or until within such period he gives the security to the Court or Magistrate who made the order requiring it.
(b) If any person after having executed a bond, with or without sureties, for keeping the peace in pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of such Magistrate or his successor-in-office, to have committed breach of the bond, such Magistrate or successor-in-office may, after recording the grounds of such proof, order that the person be arrested and detained in prison until the expiry of the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law.
(2) When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be, before such Court.
(3) Such Court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, and after giving the concerned person a reasonable opportunity of being heard, may pass such order on the case as it thinks fit.
Provided that the period, if any, for which any person is imprisoned for failure to give security shall not exceed three years.
(4) If security has been required in the course of the same proceeding from two or more persons in respect of any one of whom the proceedings are referred to the Sessions Judge under sub-section (2), such reference shall also include the case of any other of such persons who has been ordered to give security, and sub-sections (2) and (3) shall apply accordingly, except that the period of imprisonment of such other person shall not exceed the period for which he was ordered to give security.
(5) A Sessions Judge may in his discretion transfer proceedings laid before him under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant Sessions Judge, who may exercise the powers of a Sessions Judge under this section in respect of those proceedings.
(6) If security is tendered to the officer in charge of the jail, that officer shall forthwith refer the matter to the Court or Magistrate who made the order and await its orders.
(7) Imprisonment for failure to give security for keeping the peace shall be simple.
(8) Imprisonment for failure to give security for good behaviour shall, where proceedings were taken under section 108, be simple, and where proceedings were taken under section 109 or section 110, be rigorous or simple as the Court or Magistrate directs in each case.
Amendment note: Act 25 of 2005 substituted the words relating to a bond with or without sureties in Section 122(1)(b), with effect from 23 June 2006.
How Section 122 operated
| Situation | Legal consequence under Section 122 |
|---|---|
| Security under Section 106 or Section 117 not furnished when the period begins | The person could be committed to prison, or detained if already in prison, until the relevant period expired or security was furnished, subject to Section 122. |
| Breach of a bond for keeping the peace under Section 117 | After proof to the satisfaction of the Magistrate and recording grounds, arrest and detention could be ordered until expiry of the bond period. |
| Security ordered for more than one year | The Magistrate was required to send the proceedings to the Sessions Judge and issue a warrant for detention pending orders. |
| Security later tendered while the person was in jail | The jail officer had to refer the matter immediately to the Court or Magistrate who made the order. |
Reasonable opportunity of hearing
Section 122(3) expressly required the Sessions Court to give the concerned person a reasonable opportunity of being heard before passing its order on a reference involving security for a period exceeding one year. In proceedings concerning breach of a bond, the statutory requirement to establish the breach and record the grounds was also significant because detention affected personal liberty.
Supreme Court on Section 122(1)(b)
In Devadassan v. Second Class Executive Magistrate, Ramanathapuram, Criminal Appeal No. 388 of 2022, decided on 9 March 2022, the Supreme Court considered detention following breach of a bond. The Court treated recourse to Section 122 as permissible where the statutory procedure had been followed and due opportunity had been afforded. The decision underlines that action affecting personal liberty must follow the procedure established by law.
Related CrPC provisions
Section 122 should be read with the surrounding provisions governing preventive security proceedings. The following internal pages provide the sequence of Chapter VIII:
- Sections 106 and 107 - Security for keeping the peace
- Section 108 - Security for good behaviour
- Sections 109, 110 and 111 - Suspected persons, habitual offenders and order to be made
- Sections 112, 113 and 114 - Procedure, summons, warrant and copy of order
- Section 115 - Power to dispense with personal attendance
- Sections 116, 117 and 118 - Inquiry, order to give security and discharge
- Sections 119, 120 and 121 - Commencement, contents of bond and sureties
- Sections 123 and 124 - Release and security for unexpired period of bond
Practical legal significance
Section 122 was not an independent punishment provision for an ordinary criminal offence. It formed part of the preventive security mechanism in Chapter VIII. Its operation depended on a preceding lawful security order or a qualifying bond and on compliance with the procedural safeguards specified in the Code. Questions concerning the validity of the original security proceeding, proof of breach, hearing, recorded reasons, duration of detention and the competent authority could therefore be material in an individual case.
Disclaimer: This article is for legal information and historical reference to the CrPC framework before implementation of the BNSS. It is not a substitute for advice on the facts of a particular case.