Introduction to Section 138 BNSS / Start of Security Period After Preventive Order
Section 138 BNSS is a part of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaces the Code of Criminal Procedure (CrPC) in India. This section deals with the starting point of the period during which a person is required to provide security for keeping peace or maintaining good behaviour. It applies specifically after an order is passed under Section 125 or Section 136 of BNSS. This provision ensures that such preventive measures begin fairly and logically, especially when the person is already serving a jail sentence.
What is BNSS Section 138 ?
BNSS Section 138 defines when the period of security begins for a person who has been ordered to keep the peace or maintain good behaviour under Section 125 or Section 136 of the BNSS. It ensures that the timing is fair and doesn’t overlap with any jail sentence the person may already be serving.
BNSS Section of 138 in Simple Points
1. Applies After Security Orders Under Section 125 or 136
BNSS Section 138 comes into effect only after a person has been ordered to provide security for keeping peace (Section 125) or for good behaviour (Section 136). It helps determine when the person needs to start following that order. This section focuses only on the start of the security period, not the conditions of the bond itself.
2. If the Person is in Jail, Period Starts After Sentence Ends
If someone is already serving a jail sentence at the time of the order, the security period does not start immediately. Instead, it begins after the jail term is completed. This ensures that a person is not punished or restricted in two ways at the same time.
3. If the Person is Not in Jail, Period Starts Immediately
If the person is not in custody, the security period begins on the date the Magistrate passes the order. This allows preventive action to begin quickly when needed and ensures that public safety is not delayed by unnecessary formalities.
4. Magistrate Can Delay the Start for Valid Reasons
The law allows the Magistrate to set a later start date for the security period if there is a sufficient reason. For example, if a person is unwell or has other serious personal circumstances, the Magistrate can use discretion to provide some flexibility. This makes the law more humane and adaptable.
5. Maintains Legal Fairness and Clarity
Section 138 helps in avoiding confusion about when a person’s security obligation starts. It keeps legal procedures clear and structured, ensuring that a person knows their responsibilities and authorities can enforce the law in a timely and fair manner.
Section 138 of BNSS Overview
BNSS Section 138 ensures legal clarity and fairness in implementing preventive orders. It addresses two types of scenarios:
- If the person is already in jail, the security period begins after the jail sentence ends.
- If the person is not in custody, the period begins from the date of the Magistrate’s order, unless delayed by the Magistrate for valid reasons.
This section plays an important role in preventing the overlap of punitive and preventive actions. It also gives Magistrates the discretion to adjust timelines, maintaining balance between law enforcement and individual rights.
BNSS Section 138 – 10 Key Points
1. Purpose of BNSS Section 138
Section 138 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 explains when the time period begins for which a person is required to provide security for keeping peace or good behaviour. This security requirement may arise from orders issued under Section 125 or Section 136. The section ensures clarity about the starting point of such obligations, which is crucial in calculating the total duration for which the person is legally bound.
2. Two Situations Covered
The section deals with two main situations: one where the person is already serving a sentence in jail at the time of the order, and another where the person is not in prison. This distinction ensures that the bond or security requirement does not overlap unfairly with an existing prison sentence. The law thus keeps preventive and punitive measures separate, ensuring procedural fairness.
3. Person Undergoing Sentence
If a person has been ordered to furnish security under Section 125 or 136 while they are in jail, the period for which security is required will not start immediately. Instead, it will start only after the jail sentence ends. This prevents unnecessary duplication of punishment or restriction and respects the idea that preventive measures should apply only after punitive sentences are over.
4. Commencement in Other Cases
In cases where the person is not in custody, the period of security typically begins from the date of the Magistrate’s order. This is the default rule. It allows the system to quickly implement preventive measures when there is an immediate concern for maintaining peace or ensuring good behaviour in society.
5. Magistrate’s Discretion to Delay Start
The law also gives the Magistrate the power to delay the commencement of the security period, but only for sufficient reason. For example, the Magistrate may consider a person’s medical condition, travel, or other personal circumstances. This discretionary power makes the law flexible and humane, adapting to individual cases where immediate enforcement might be unfair or impractical.
6. Why This Provision Matters
This section ensures that the preventive legal process is fair, sequential, and logical. It avoids confusion or disputes regarding when a person’s obligation begins, especially when they are already dealing with other legal consequences. By clearly defining the start date of the security period, it protects the individual’s rights while ensuring that public order is not compromised.
7. Link with Sections 125 and 136
Sections 125 and 136 of the BNSS are about requiring people to furnish bonds to prevent disturbances. Section 138 works as a supporting clause to these sections by clarifying the timeline of their enforcement. Without this clarity, there would be loopholes or disputes about overlapping timelines or double punishment, which could compromise justice.
8. Preventing Overlapping Punishment
If someone is already in jail and then asked to give security under preventive provisions, Section 138 ensures that the two periods don’t run together. This separation avoids a situation where a person is effectively serving two punishments at once. It respects the principle of proportionality, ensuring legal measures are fair and measured, not excessive.
9. Importance in Maintaining Peace
Timely and fair enforcement of security orders is essential in preventive justice. Section 138 ensures that the timing of such orders does not interfere with the effectiveness of the law. It allows the government to maintain peace while also safeguarding individual liberty, striking a balance between societal safety and personal freedom.
10. Protecting Legal Clarity and Rights
Legal processes must be predictable and understandable. Section 138 contributes to this by clearly stating when a preventive order becomes active. Citizens can plan accordingly, and legal authorities know exactly when to begin enforcement. It helps prevent arbitrary application of law, protecting constitutional rights and reinforcing rule of law in preventive justice.
Examples of BNSS Section 138
Example 1:
Rakesh is in jail for 6 months for theft. While in jail, a Magistrate orders him under Section 125 to give security for keeping peace for 1 year. According to Section 138, the 1-year period starts only after he finishes his 6-month sentence.
Example 2:
Anita receives an order under Section 136 to maintain good behaviour for 1 year. She is not in custody. So her security period starts immediately from the date of the order, unless the Magistrate sets another start date.
Section 138 of BNSS Short Information
| Key Point | Explanation |
|---|---|
| 1. Applies After Security Order | Comes into effect after Section 125 or 136 order |
| 2. Person in Jail | Security period starts after sentence ends |
| 3. Person Not in Jail | Security period starts from date of order |
| 4. Magistrate Can Set Later Date | Flexibility to delay start of the period |
| 5. Ensures Fairness and Legal Clarity | Avoids overlap and protects individual rights |
Why is BNSS Section 138 Needed?
BNSS Section 138 is essential to maintain fairness in preventive law. Without this provision, a person could be asked to keep peace or good behaviour while also serving a jail term, which would be unjust and confusing. This section ensures that the legal system is clear, rights are protected, and punishment and prevention are not mixed up.
BNSS Section 138 FAQs
BNSS 138
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