Chapter VIII
Section 123 CrPC: Power to release persons imprisoned for failing to give security
New Law Update (2024)
Section 129 BNSS
TRIAL COURT
Punishment
Procedural – Warrant / Summons Process
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(1) Whenever 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, 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 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 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, 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 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), 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 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 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 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 bound to appear or to be brought before it.
Important Sub-Sections Explained
Section 123(1)
This sub-section empowers the District Magistrate or Chief Judicial Magistrate to order the release of a person imprisoned for failing to provide security if they believe there is no longer a risk to the community or any individual. This allows for conditional or unconditional discharge from preventive detention.
Section 123(2)
This provision enables higher courts like the High Court or Court of Session, or the relevant Magistrate, to reduce the amount of security, the number of sureties, or the period for which security was required. It provides a mechanism for modifying stringent security requirements based on changed circumstances or merits.
Landmark Judgements
Draft Format / Application
IN THE COURT OF THE [DISTRICT MAGISTRATE / CHIEF JUDICIAL MAGISTRATE / SESSIONS JUDGE / HIGH COURT] AT [CITY NAME]
Crl. Misc. Application No. [ ] of [Year]
IN THE MATTER OF:
[Name of Applicant]
Son/Daughter of [Father’s/Husband’s Name]
Aged about [ ] years,
Resident of [Full Address]
…Applicant
VERSUS
The State of [State Name]
…Respondent
APPLICATION FOR DISCHARGE / REDUCTION OF SECURITY / CANCELLATION OF BOND UNDER SECTION 123 OF THE CODE OF CRIMINAL PROCEDURE, 1973
MOST RESPECTFULLY SHOWETH:
1. That the Applicant herein was ordered to furnish security for keeping the peace/for good behaviour under Section [107/108/109/110] of the Code of Criminal Procedure, 1973, by the learned [Name of Court/Magistrate] vide order dated [Date of Order].
2. That the Applicant, being unable to furnish the said security, was committed to prison/has been imprisoned since [Date of Imprisonment].
**(OR for reduction/cancellation):** That the Applicant furnished the required security/bond for peace/good behaviour, which is currently operative.
3. That the Applicant submits that his/her continued imprisonment/the existing security/bond is no longer necessary as [State reasons clearly, e.g., there is no longer any apprehension of breach of peace; the circumstances have changed; the applicant has shown good conduct; the amount of security is excessive given his/her financial condition; the number of sureties is unreasonable; the period of security is unduly long; the surety wishes to withdraw the bond].
4. That the Applicant can be released without any hazard to the community or to any other person.
5. That the Applicant undertakes to abide by any conditions that this Hon’ble Court may deem fit to impose.
6. That the Applicant has not filed any similar application before this Hon’ble Court or any other Court, save and except [if applicable, mention previous applications and their outcomes].
PRAYER:
In the premises aforesaid, it is most respectfully prayed that this Hon’ble Court may be pleased to:
a. Order the immediate discharge of the Applicant from imprisonment under sub-section (1) of Section 123 CrPC;
**(OR)**
Reduce the amount of security / the number of sureties / the time for which security has been required, under sub-section (2) of Section 123 CrPC;
**(OR)**
Cancel the bond for keeping the peace / for good behaviour executed by the Applicant / the surety, under sub-section (9) or (10) of Section 123 CrPC;
b. Pass any other order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS, THE APPLICANT AS IN DUTY BOUND SHALL EVER PRAY.
[Place]
[Date]
[Signature of Applicant / Advocate]
[Name of Applicant / Advocate]