Introduction:
In a significant judgment interpreting the scope of preventive powers under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Kerala High Court in M.V. Nithamol v. State of Kerala, Crl. M.C. No. 8561 of 2025, reported as 2025 LiveLaw (Ker) 672, has held that Executive Magistrates cannot invoke Section 130 of the BNSS in matters that arise purely from private disputes unless there is a demonstrable threat to public peace or tranquility. The decision was rendered by Justice V.G. Arun in a petition challenging the order and summons issued by the Sub-Divisional Magistrate, Muvattupuzha, under Sections 126, 130, and 132 of the BNSS. The proceedings were initiated based on two criminal cases pending against the petitioner for offences under Sections 406 and 420 of the Indian Penal Code (IPC), relating to criminal breach of trust and cheating. The petitioner contended that these offences were private in nature and that the invocation of Section 130 by the Executive Magistrate was without jurisdiction and contrary to the statutory mandate, as no breach of public peace was either alleged or established. The Court, while allowing the petition, emphasized that preventive proceedings under Chapter IX of the BNSS are aimed solely at maintaining public order and not at resolving private grievances. The judgment serves as a crucial precedent limiting the arbitrary use of executive power under preventive provisions and upholding the principle that personal liberty cannot be curtailed in the absence of a real and proximate threat to public tranquility.
Arguments of the Petitioner:
The petitioner, represented by advocates Binu Babukuttan, Aromalunni M.S., Nima Meriyam Koshy, Ananthakrishnan A., and Roshan Kurian Roy, argued that the proceedings initiated by the Sub-Divisional Magistrate were wholly without jurisdiction and in flagrant violation of the statutory procedure prescribed under the BNSS. It was submitted that Section 130 of the BNSS, which empowers the Executive Magistrate to call upon a person to show cause as to why he should not be ordered to execute a bond for keeping peace, can only be invoked when there is credible information suggesting a likelihood of breach of public peace or disturbance to public tranquility. The petitioner asserted that the allegations against her—pertaining to cheating and criminal breach of trust—were purely of a private nature, relating to individual disputes that had no bearing on public order or community peace. She argued that the initiation of proceedings under Section 130 merely on the basis of pending criminal cases under the IPC was an abuse of process, as there was no material before the Magistrate to indicate any apprehension of public disorder.
Further, the petitioner contended that the mandatory procedural requirements under Section 126 of the BNSS had not been complied with. Section 126 stipulates that before initiating proceedings, the Magistrate must receive credible information and record reasons in writing specifying the substance of the information received and the grounds for being satisfied that such proceedings are necessary. It was argued that in the present case, the Sub-Divisional Magistrate neither recorded the substance of any information received nor demonstrated how the alleged acts amounted to a threat to public tranquility. The petitioner pointed out that the impugned order (Annexure A4) was cryptic, devoid of reasoning, and failed to indicate any nexus between the private dispute and public peace. Moreover, the issuance of summons under Section 132, which presupposes lawful initiation under Sections 126 and 130, was also illegal, as the foundational requirement of prior notice was ignored.
The petitioner stressed that preventive proceedings, by their very nature, impose restrictions on personal liberty and therefore must be strictly construed and invoked only in exceptional circumstances where there exists a clear and proximate apprehension of public disturbance. Reliance was placed on established principles laid down by the Supreme Court under analogous provisions of the Code of Criminal Procedure, 1973 (CrPC), such as Sections 107 and 110, which were replaced by corresponding provisions in the BNSS. The petitioner referred to the Supreme Court’s decisions in Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746 and Gulam Abbas v. State of Uttar Pradesh (1982) 1 SCC 71, wherein it was held that preventive measures cannot be taken merely because criminal proceedings are pending; the Magistrate must independently assess whether the acts complained of pose a threat to public peace. She therefore prayed for quashing of the order and summons, arguing that the misuse of preventive powers under the BNSS to settle private disputes would set a dangerous precedent and erode constitutional safeguards of liberty under Articles 19 and 21.
Arguments of the Respondents:
On behalf of the State and the Sub-Divisional Magistrate, Senior Public Prosecutor M.C. Ashi defended the proceedings, contending that the initiation of action under Sections 126, 130, and 132 of the BNSS was lawful and within the powers vested in the Executive Magistrate. The respondents argued that the petitioner had been involved in two criminal cases under Sections 406 and 420 of the IPC, which, though arising from private transactions, could have potential repercussions on public peace if the aggrieved parties or others similarly affected were to react violently. It was submitted that preventive proceedings are designed to forestall breaches of peace rather than to address them after they occur, and hence, the Magistrate is entitled to act upon credible information that indicates even a likelihood of such disturbance. The State contended that the existence of pending criminal cases against the petitioner was sufficient ground for the Magistrate to issue a notice under Section 130, calling upon her to show cause why she should not be ordered to execute a bond for keeping the peace.
The respondents also maintained that the procedure adopted by the Sub-Divisional Magistrate was in substantial compliance with the statutory framework. They argued that minor procedural omissions, if any, could not invalidate the entire proceedings unless substantial prejudice was demonstrated. It was further contended that the BNSS, being a preventive law, must be interpreted in a manner that allows Executive Magistrates sufficient discretion to act in situations where there is any reasonable apprehension of public disorder. The prosecution emphasized that the intent of Chapter IX of the BNSS is preventive rather than punitive, and its invocation in the present case was based on the need to maintain local peace and ensure that private disputes do not escalate into community tensions. Thus, according to the State, the Magistrate acted within jurisdiction and with due prudence in issuing the summons under Section 132 following the initiation of proceedings under Section 130.
Judgment and Reasoning of the Court:
After hearing both sides and perusing the record, Justice V.G. Arun meticulously examined the statutory framework under Chapter IX of the BNSS, which encompasses Sections 126 to 132. The Court emphasized that these provisions are preventive in nature and are intended to maintain public peace and tranquility within a jurisdiction. The purpose, the Court observed, is not to adjudicate private disputes but to prevent disturbances to the community. Section 130, in particular, empowers the Executive Magistrate to require a person to show cause as to why they should not execute a bond for keeping the peace, but such power must be exercised strictly in conformity with the conditions laid down in Section 126.
The Court highlighted that Section 126 mandates two essential requirements before the Magistrate can invoke Section 130: first, there must be credible information or a police report indicating that a person is likely to commit a breach of peace; and second, the Magistrate must record in writing the substance of that information along with reasons for his satisfaction that such proceedings are necessary. Justice Arun observed that these requirements are not empty formalities but substantive safeguards intended to ensure that preventive powers are not exercised arbitrarily or mechanically.
Applying these principles to the facts, the Court found that the offences alleged against the petitioner—criminal breach of trust and cheating—were inherently private disputes concerning individual transactions and did not, by themselves, pose any danger to public order or tranquility. The Magistrate, in the impugned order, had failed to record any satisfaction or reasoning as to how such offences could disturb public peace. The Court noted that the order did not contain even the substance of the information received, thereby falling foul of the mandatory requirement under Section 126(1). Quoting from the order, the Court observed: “The offences alleged against the petitioner, which is the reason for initiating the proceedings, are breach of trust and cheating. Being so, the Executive Magistrate is duty bound to state as to how the commission of those offences, which are more in the nature of private dispute, can result in breach of peace or the tranquility in the locality being disturbed. In Annexure A4 not only has the Executive Magistrate failed to state any such reason but even the substance of the information received is not set forth in the order.”
Justice Arun also referred to the long line of judicial precedents interpreting similar provisions under the CrPC, holding that preventive powers under Sections 107 and 110 could not be used as a substitute for criminal proceedings. The Court reiterated that the essence of preventive jurisdiction lies in the likelihood of disturbance to public order, and not in the mere existence of criminal allegations. The invocation of preventive measures without establishing a proximate and reasonable apprehension of breach of peace amounts to abuse of process and violation of personal liberty. The Court underscored that the Magistrate’s satisfaction must be objective, based on credible material, and not on conjecture or the mere pendency of criminal cases.
Justice Arun further noted that the procedural non-compliance under Section 126 vitiated the entire proceedings, rendering the subsequent summons under Section 132 unlawful. The Court clarified that Section 132 can be invoked only when proceedings are validly initiated under Section 126 and the person concerned fails to appear. Since the very initiation under Section 130 was defective, the consequential summons had no legal basis.
In conclusion, the Court held that the invocation of preventive powers under Chapter IX of the BNSS in a matter arising purely from private disputes was legally unsustainable. The Court categorically ruled that Executive Magistrates cannot use such provisions as a parallel mechanism to address personal grievances or civil wrongs that do not affect public peace. Consequently, the impugned order and summons issued by the Sub-Divisional Magistrate were quashed. The judgment reaffirmed that preventive justice must remain within its constitutional boundaries and cannot be converted into an instrument of harassment or overreach.
Justice Arun’s ruling thus draws a clear demarcation between preventive and punitive jurisdictions and reiterates that personal liberty under Article 21 can only be curtailed through fair, reasonable, and lawful procedure. The decision stands as a reminder to Executive Magistrates across the State that preventive powers under the BNSS must be exercised with circumspection and only in cases where there exists a genuine threat to public peace or tranquility.