01Facts
The petitioners filed several Criminal Writ Petitions challenging show-cause notices issued by various Executive Magistrates/SDMs in Goa under Section 126 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
p. 7The notices required the petitioners to execute bonds or bail bonds for keeping the peace.
pp. 7-8The primary grievance was that the Magistrates issued these notices mechanically, using identical "cyclostyled" formats without passing a mandatory written order under Section 130 of the BNSS.
p. 8, para 5 · p. 18, para 16The petitioners contended that the Magistrates failed to record the substance of the information received or form an objective opinion regarding the sufficiency of grounds for the proceedings.
p. 8, para 602Issues
i.1. Whether the passing of a written order under Section 130 of the BNSS is a sine qua non for an Executive Magistrate to assume jurisdiction and initiate proceedings under Section 126.
p. 20, para 19ii.2. Whether the issuance of "cyclostyled" or mechanical notices satisfies the statutory requirement of recording the "substance of information" and the Magistrate's "opinion" as mandated by the BNSS.
p. 20, para 21 · p. 21, para 2303Law Applied
Section 126 of the BNSS, which empowers an Executive Magistrate to require a person to show cause for keeping the peace upon receiving information of a likely breach of peace.
p. 18Section 130 of the BNSS, which mandates that the Magistrate must make an order in writing setting forth the substance of the information received, the bond amount, and the term of force.
p. 19Jitendra R. Deshprabhu Vs. Executive Magistrate (1992), which held that the Magistrate must reach an opinion on the sufficiency of grounds.
p. 11Rajesh Suryabhan Nayak Vs. State of Maharashtra (2006), which condemned the use of printed/cyclostyled forms as a lack of application of mind in preventive proceedings.
pp. 12-13Provisions in the judgment · 12 · Linked ones open on LawLens
Bharatiya Nagarik Suraksha Sanhita, 2023 Section 126Section 127Section 128Section 129Section 130Section 131Section 133
Code of Criminal Procedure, 1973 Section 107Section 111Section 113Section 114Section 116
04Reasoning
The Court reasoned that Section 130 is the procedural gateway for exercising powers under Section 126.
p. 20, para 19It emphasized that the requirement to "set forth the substance of information received" is not a mere formality but a safeguard for personal liberty.
p. 20, para 20 · p. 21, para 22The Court observed that the impugned notices in all six petitions were "practically cyclostyled," with identical contents regardless of the varying facts of each case, indicating a total failure of the Magistrates to apply a "judicial mind".
p. 18, para 16 · p. 22The Court rejected the State's argument that a show-cause notice under Section 126 could be construed as an order under Section 130, clarifying that the statute requires a distinct written order to be read or explained to the person concerned under Section 131 and 133.
pp. 20-21The Court concluded that if a statute requires an act to be done in a particular manner, it must be done in that manner or not at all.
p. 21, para 2205Holding
The Court answered the issues in favor of the petitioners, holding that a written order under Section 130 is a mandatory prerequisite that cannot be substituted by a mechanical show-cause notice.
p. 21, para 23The Court quashed and set aside all impugned notices and the resulting proceedings in the six writ petitions. The Rule was made absolute, with a direction to the Executive Magistrates to strictly comply with the requirements of Chapter IX of the BNSS in future proceedings.
p. 21, para 23 · pp. 23, para 25-26Original Court PDF
GARGI BODKE AND ANRvsSTATE OF GOA, THR. THE PUBLIC PROSECUTOR AND 3 ORS
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