The High Court of Kerala has reaffirmed a foundational procedural safeguard in preventive detention law: an Executive Magistrate cannot issue a preliminary peace bond order without disclosing the substance of the information upon which the order is based. This ruling reinforces the constitutional imperative of transparency and due process in preventive measures under the Bharatiya Nagarik Suraksha Sanhita, 2023.
Background & Facts
The Dispute
The petitioner, Muhammed Hashim, was served with a preliminary order under Section 126 read with Section 130 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), requiring him to execute a bond of ₹50,000 with two sureties for maintaining peace for one year. The order, Annexure-A1, did not specify the nature of the information suggesting his likelihood to commit a breach of peace. Instead, it merely referenced his involvement in two police-registered cases without detailing the facts, context, or specific threat posed.
Procedural History
- 12 August 2025: FIR No. 428/2025 registered at Pandikkad Police Station
- 17 December 2024: FIR No. 1157/2024 registered at Vadakekad Police Station
- 15 December 2025: Sub Divisional Magistrate, Thrissur, issued Annexure-A1 preliminary order under BNSS Sections 126 and 130
- 22 January 2026: Criminal Miscellaneous Petition filed before the High Court of Kerala challenging the order
Relief Sought
The petitioner sought quashing of Annexure-A1 on the ground that it violated mandatory procedural requirements under Section 130 of the BNSS, which demands that the substance of the information be explicitly stated in the order.
The Legal Issue
The central question was whether an Executive Magistrate may issue a preliminary peace bond order under Section 126 of the BNSS without disclosing the substance of the information received, relying solely on the mere registration of FIRs.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on Moidu v. State of Kerala (1982 KHC 139), Jayanth K.C. v. State of Kerala (2025 KHC 1591), and Girish P. v. State of Kerala (2009 KHC 929) to argue that Section 130 of the BNSS mandates a written order setting forth the substance of the information. Mere reference to pending FIRs, without articulating the nature of the threat, the likelihood of breach, or the nexus between the person and the apprehended disturbance, renders the order legally unsustainable. The absence of such disclosure violates the principles of natural justice and the right to fair hearing.
For the Respondent/State
The State contended that the registration of two FIRs involving the petitioner, one of which related to public disorder, was sufficient to justify the preliminary order. It argued that the Magistrate’s discretion under Section 126 is broad and that detailed disclosure of information might compromise ongoing investigations. However, no specific evidence or factual basis was cited to substantiate the claim of imminent breach of peace.
The Court's Analysis
The Court examined the statutory language of Section 130 of the BNSS, which mirrors the former Section 111 of the CrPC, and emphasized its mandatory nature. The provision requires the Magistrate to "set forth the substance of the information received" - a requirement not merely procedural but substantive, designed to ensure accountability and prevent arbitrary action.
"Unless the substance of information is stated in an order passed under Section 111 of the Cr.P.C, the order passed under Section 107 of the Cr.P.C., is bad in law."
The Court held that registration of an FIR alone does not constitute sufficient ground for invoking preventive powers under Section 126. The Magistrate must evaluate whether the information indicates a real and imminent threat to public tranquillity, not merely a past or potential criminal allegation. The absence of any factual articulation in Annexure-A1 rendered the order legally defective.
The Court distinguished between punitive and preventive jurisdiction: while FIRs may trigger prosecution, they cannot substitute the reasoned determination required for preventive orders. The precedents cited were applied without distinction, as the BNSS provisions are substantially identical to their CrPC predecessors.
The Verdict
The petitioner succeeded. The Court set aside Annexure-A1 and directed the Sub Divisional Magistrate to reconsider the matter in strict compliance with Sections 126 and 130 of the BNSS, ensuring that any subsequent order explicitly states the substance of the information, the basis for apprehending breach of peace, and the reasons for the bond amount and surety conditions.
What This Means For Similar Cases
Substance of Information Is Non-Negotiable
- Practitioners must challenge any peace bond order that cites FIRs without detailing the nature of the threat or the factual basis for apprehension
- A bare reference to "involvement in crimes" is legally inadequate and voidable
- The burden lies on the Magistrate to articulate, not on the individual to disprove suspicion
FIR Registration ≠ Grounds for Preventive Action
- Section 126 BNSS requires a reasonable belief of imminent breach, not retrospective criminality
- Courts will not uphold preventive orders based on pending investigations or unproven allegations
- Legal teams should demand disclosure of the specific information relied upon during hearings
Procedural Defects Render Orders Void, Not Voidable
- Failure to comply with Section 130 is a jurisdictional defect, not a mere irregularity
- Such orders can be quashed at any stage, even after execution, as they violate statutory mandates
- Petitioners should seek immediate quashing under Article 226 without waiting for bond enforcement
