CrPC Section 123 — Power to release persons imprisoned for failing to give security

Summary

Sub-section (1) allows a person imprisoned for failing to give security under this Chapter to be discharged if the relevant Magistrate believes the person can be released without danger to the community or anyone else. The relevant Magistrate is the District Magistrate where an Executive Magistrate passed the order under section 117, and the Chief Judicial Magistrate in any other case.

Sub-section (2) allows the High Court or Court of Session to reduce the amount of security, the number of sureties, or the period for which security is required when a person has been imprisoned for failing to give security under this Chapter. Where the order was made by any other Court, the District Magistrate may do so in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case.

Sub-section (3) says that a discharge under sub-section (1) may be unconditional or subject to conditions accepted by the person. Any condition stops operating when the period for which the person was ordered to give security expires.

Sub-section (4) allows the State Government to prescribe conditions for a conditional discharge.

Sub-section (5) allows the Magistrate who made the discharge order, or that Magistrate’s successor, to cancel it if they believe a condition of the discharge has not been fulfilled. The Magistrate is the District Magistrate in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case.

Sub-section (6) says that, if a conditional discharge order is cancelled under sub-section (5), any police officer may arrest the person without a warrant. The person must then be produced before the District Magistrate in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case.

Sub-section (7) allows the District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case, to send the person back to prison for the unexpired part of the original term, unless the person gives security for that part in accordance with the original order. This unexpired part is treated as the period between the date the discharge conditions were breached and the date the person would have been entitled to release without the conditional discharge.

Sub-section (8) says that a person sent back to prison under sub-section (7) must be released at any time upon giving security for that unexpired part in accordance with the original order, subject to section 122. The security must be given to the Court or Magistrate that made the original order, or to its or the Magistrate’s successor.

Sub-section (9) allows the High Court or Court of Session, at any time and for sufficient reasons recorded in writing, to cancel a bond for keeping the peace or for good behaviour executed under this Chapter by an order it made. The District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case, may cancel such a bond where it was executed under that Magistrate’s order or an order of any other Court in the district.

Sub-section (10) allows a surety for another person’s peaceful conduct or good behaviour, who was ordered to execute a bond under this Chapter, to apply at any time to the Court that made the order to cancel the bond. On receiving the application, the Court must issue a summons or warrant, as it thinks fit, requiring the person for whom the surety is bound to appear or be brought before it.

Official Text

(1) Whenever 1[the District Magistrate in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] is of opinion that any person imprisoned for failing to give security under this Chapter may be released without hazard to the community or to any other person, he may order such person to be discharged.

(2) Whenever any person has been imprisoned for failing to give security under this Chapter, the High Court or Court of Session, or, where the order was made by any other Court, 2[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case], may make an order reducing the amount of the security or the number of sureties or the time for which security has been required.

(3) An order under sub-section (1) may direct the discharge of such person either without conditions or upon any conditions which such person accepts:

Provided that any condition imposed shall cease to be operative when the period for which such person was ordered to give security has expired.

(4) The State Government may prescribe the conditions upon which a conditional discharge may be made.

(5) If any condition upon which any person has been discharged is, in the opinion of 2[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] by whom the order of discharge was made or of his successor, not fulfilled, he may cancel the same.

(6) When a conditional order of discharge has been cancelled under sub-section (5), such person may be arrested by any police officer without warrant, and shall thereupon be produced before the 3[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case].

(7) Unless such person gives security in accordance with the terms of the original order for the unexpired portion of the term for which he was in the first instance committed or ordered to be detained (such portion being deemed to be a period equal to the period between the date of the breach of the conditions of discharge and the date on which, except for such conditional discharge, he would have been entitled to release), 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] may remand such person to prison to undergo such unexpired portion.

(8) A person remanded to prison under sub-section (7) shall, subject to the provisions of section 122, be released at any time on giving security in accordance with the terms of the original order for the unexpired portion aforesaid to the Court or Magistrate by whom such order was made, or to its or his successor.

(9) The High Court or Court of Session may at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under this Chapter by any order made by it, and 1[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] may make such cancellation where such bond was executed under his order or under the order of any other Court in his district.

(10) Any surety for the peaceable conduct or good behaviour of another person ordered to execute a bond under this Chapter may at any time apply to the Court making such order to cancel the bond and on such application being made, the Court shall issue a summons or warrant, as it thinks fit, requiring the person for whom such surety is bond appear or to be brought before it.

Sections referred to

• CrPC §117 — Order to give security
• CrPC §122 — Imprisonment in default of security

Referred to by

• CrPC §39 — Public to give information of certain offences
• CrPC §124 — Security for unexpired period of bond

Old <-> New Code Mapping

• BNSS §142 — Power to release persons imprisoned for failing to give security