Section 135(3) BNSS | Executive Magistrate Cannot Demand Interim Bond Without Commencing Inquiry; Must Supply Kalandara Material & Follow Madhu Limaye Safeguards: Delhi High Court In Neha Bora

"The SEM is also directed to ensure that the principles of natural justice are not violated before passing any order directing furnishing of a bond... Needless to state, at the time of passing an order under Section 135(3) of the BNSS, the SEM will take into account the safeguards given by the five Judges Bench of the Apex Court in Madhu Limaye." Delhi High Court, in a significant ruling delivered on October 23, 2026, held that Special Executive Magistrates exercising preventive jurisdiction cannot mechanically demand an interim bond at the first instance without commencing an inquiry, and must strictly supply all underlying kalandara materials to the noticee.

While declining to quash a show cause notice issued under Sections 126 and 130 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) at the threshold, a single judge bench of Justice Subramonium Prasad issued binding safeguards on preventive custody, underscoring that the executive authority must adhere strictly to the constitutional and procedural guardrails enunciated by the Supreme Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr.

Factual Matrix Leading To The Writ Petition

The petitioner, the National President of the All India Students’ Association (AISA), had posted on social media calling for a public assembly at Mandi House concerning the functioning of the Election Commission of India, leading to her preventive detention on October 16, 2026. Following her release, the Special Executive Magistrate (SEM), New Delhi District, issued an Impugned Notice on October 17, 2026, under Sections 126 and 130 BNSS requiring her to show cause why she should not be ordered to execute a personal bond of Rs. 10,000 with one surety under Section 135(3) BNSS for keeping the peace during the inquiry. Aggrieved by the initiation of these preventive proceedings, the petitioner invoked Article 226 of the Constitution of India seeking quashing of the show cause notice.

Core Legal Questions Before The High Court

The primary question before the court was whether the show cause notice issued under Sections 126 and 130 BNSS was vitiated due to lack of independent preliminary inquiry and non-disclosure of material by the Special Executive Magistrate. The court was also called upon to determine the extent of procedural safeguards and disclosure requirements mandated prior to seeking an interim bond or ordering preventive custody under Section 135(3) BNSS.

Writ Courts Must Exercise Caution At Show Cause Stage

Judicial Restraint At The Threshold Of Preventive Action

Justice Subramonium Prasad observed that the writ court, while examining a challenge to a show cause notice under Chapter IX of the BNSS, does not sit in appeal over the subjective satisfaction of the Magistrate. The Court emphasized that proceedings under Section 126 BNSS are preventive and not punitive in nature, aimed at nipping unrest in the bud rather than punishing completed offences.

Citing the Supreme Court decisions in Special Director v. Mohd. Ghulam Ghouse, Union of India v. Vicco Laboratories, and J. Sri Nisha v. Special Director, the bench noted that interference with a show cause notice is permissible only in exceptional circumstances where the notice suffers from patent lack of jurisdiction or constitutes a palpable abuse of process.

"Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking."

Composite Notice Under Sections 126 And 130 BNSS Is Legally Permissible

Consolidated Notice Satisfies Procedural Mandate

The petitioner contended that the SEM acted mechanically by issuing a composite notice without recording an independent preliminary order. Rejecting this contention, the High Court aligned itself with the Full Bench ruling of the Bombay High Court in Farhan Nasir Khan v. State of Maharashtra, holding that the statute does not necessitate bifurcated, repetitive orders.

The bench held that there need not be a separate show cause notice under Section 126 and an independent order under Section 130 BNSS if the substance of the information, the bond amount, the term, and the sureties are integrated within a single composite notice. The court found that the SEM had acted on three General Diary entries, six prior FIRs, and a police kalandara submitted by the Investigating Officer, which prima facie disclosed violations of prohibitory orders under Section 163 BNSS.

"There need not be a separate show cause notice under Section 126 and a separate order under Section 130 of the BNSS, if the requirements of both the provisions are met with in a common notice."

Mandatory Supply Of Kalandara And Documentary Material To The Noticee

Compliance With Natural Justice Prior To Directing Bonds

Addressing the petitioner’s grievance regarding non-furnishing of the underlying record, the High Court issued an unequivocal direction to the prosecution to supply all relevant documents. The Court held that a noticee cannot be expected to defend their personal liberty in an informational vacuum.

The bench directed the State to provide the petitioner with all material upon which reliance will be placed during the inquiry, including the kalandara and the accompanying diary entries, at the very first appearance before the SEM. The Court ruled that the SEM must strictly guarantee adherence to natural justice before passing any order compelling the execution of a bond.

"This Court deems it necessary to direct the Respondent/State to provide all the material to the Petitioner on which reliance will be placed at the time of enquiry and on which basis the Impugned Notice has been issued, when the Petitioner appears before the SEM."

Interim Bond Under Section 135(3) BNSS Cannot Be Demanded Mechanically

Substantive Safeguards Under Madhu Limaye Must Be Followed

Turning to the operation of Section 135(3) BNSS, the High Court issued critical caveats against the routine demand for interim bonds and resultant preventive detention. The Court emphasized that an order under Section 135(3) BNSS operates after the commencement and before the completion of the inquiry under Section 135(1), and cannot be imposed as an automatic reflex upon the noticee’s appearance.

Justice Prasad underscored that the SEM must strictly abide by the constitutional principles laid down by the five-judge Constitution Bench in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr and reaffirmed by the Delhi High Court Division Bench in Aldanish Rein v. State (NCT of Delhi). The Magistrate must independently inquire into the truth of the allegations to establish a prima facie case and record written reasons demonstrating that immediate measures are imperative to preserve public peace before directing an interim bond.

"Some inquiry has to be made before the bond can be ordered... It is not open to a Magistrate to adjourn the case and in the interval to send a person to jail if he fails to furnish a bond. If this were the law a bond could always be insisted upon before even the inquiry began and that is neither the sense of the law nor the wording or arrangement of the sections."

Preventive Restraints Must Rest On Written Reasons And Due Inquiry

Magisterial Power Is Judicial And Not Purely Administrative

The Court highlighted that proceedings under Chapter IX BNSS touch upon personal liberty, requiring the Magistrate to act judicially rather than as an executive arm of the police. An interim bond cannot be sought on mere suspicion or on the mechanical say-so of superior police officers.

The bench noted that detention under Section 135(3) BNSS arises solely upon default in executing the bond, and sending an individual to custody without entering upon the inquiry or recording urgent reasons renders the detention illegal. The SEM was directed to independently evaluate whether any interim bond is warranted at all, keeping in mind that summons-trial procedure governs the inquiry.

"Detention results only on default of execution of such bond... It would make his action purely administrative if he were to pass the order for an interim bond without entering upon the inquiry and at least prima facie inquiring into the truth of the information."

Final Directions On Preventive Proceedings

Concluding the judgment, the High Court clarified that while the show cause notice itself was not quashed because sufficient threshold material existed on record, the SEM must scrupulously comply with the statutory safeguards under Section 135 BNSS. The Court reiterated that the petitioner retains full liberty to challenge any subsequent order passed by the Magistrate if the procedure deviates from the standards established in Madhu Limaye.

With these procedural safeguards and directions for the complete disclosure of kalandara materials, the High Court dismissed the writ petition and relegated the parties to the statutory inquiry before the Special Executive Magistrate.

Date of Decision: 23rd October, 2026