1*[CHAPTER VIIA RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERTAIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

105A.Definition. In this Chapter, unless the context otherwise requires,- (a) "contracting State" means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise; (b) "identifying" includes establishment of a proof that the property was derived from, or used in the commission of an offence; (c) "proceeds of crime" means any property derived or, obtained directly or indirectly, by any person as a result of criminal activity (including crime involving currency transfers) or the value of any such property; (d) "property" means Property and sets of every descrip- tion whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets derived or used in the commission of an offence and includes property obtained through proceeds of crime; (e) "tracing" mean determining the nature, source, dispo- sition, movement, title or ownership of property.

105B.Assistance in securing transfer of persons. (1) Where a Court in India, in relation to a criminal matter, desires that a warrant for arrest of any person to attend or produce a document or other thing issued by it shall be executed in any place in a contracting State, it shall send such warrant in duplicate in such form to such Court, Judge or Magistrate through such authority, as the Central Government may, by notification, specify in this behalf and that Court, Judge or Magistrate, as the case may be, shall cause the same to be executed. (2) Notwithstanding anything contained in this Code, if, in the course of an investigation or any inquiry into an offence, an appli- cation is made by the investigating officer or any officer superior in rank to the investigating officer that the attendance of a person who is in any place in a contracting State is required in collection with such investigation or inquiry and the Court ,is satisfied that such attendance is so required, it shall issue a summons or warrant, in duplicate, against the said person to such Court, Judge or Magistrate, in such form as the Central Government may, by notification, specify in this behalf, to cause the same to be observed or executed. (3) Where a Court in India, in relation to a criminal matter, has received a warrant for arrest of any person requiring him to attend or attend and produce a document or other thing in that Court or before any other investigating agency, issued by a Court, Judge or Magistrate in a contracting State, the same shall be executed as if it is the warrant received by it from another Court in India for execution within its local limits. (4) Where a person transferred to a contracting State pursuant to sub-section (3) is a prisoner in India, the Court in India or the Central Government may impose such conditions as that Court or Government deems fit. 1. Ins. by Act 40 of 1993, S. 2 (w.e.f. 20-7-1994). 854c1 (5) Where the person transferred to India pursuant, to sub-sec- tion (1) or sub-section (2) is a prisoner in a contracting State, the Court in India shall ensure that the conditions subject to which the prisoner is transferred to India are complied with and such prisoner shall be kept in such custody subject to such conditions as the Central Government may direct in writing.

105C Assistance in relation to orders of attachment or forefeiture ofproperty.

105C.Assistance in relation to orders of attachment or forfeiture of property. (1) Where a Court in India has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under the provisions of sections 105D to 105J (both inclusive). (2)Where the Court has made an order for attachment or forfeiture of any property under subsection (1), and such property is suspected to be in a contracting State, the Court may issue a letter of request to a Court or an authority in the contracting State for execution of such order. (3)Where a letter of request is received by the Central Gov- ernment from a Court or an authority in a contracting State requesting attachment or forfeiture of the property. in India, derived or obtained, directly or indirectly, by any person from the commission of an offence committed in that contracting State, the Central Government may forward such letter of request to the Court as it thinks fit, for execution in accordance with the provisions of sections 105D to 105J (both inclusive) or, as the case may be, any other law for the time being in force.

105D.Identifying unlawfully acquired property. (1) The Court shall, under sub-section (1), or on receipt of a letter of request under sub-section (3) of section 105C, direct any police officer not below the rank of Sub-Inspector of Police to take all steps necessary for tracing and identifying such property. (2) The steps referred to in sub-section (1) may include any inquiry investigation or survey in respect of any person, place, property, assets, documents, books of account in any bank or public financial institutions or any other relevant matters. (3) Any inquiry investigation or survey referred to in sub- section (2) shall be carried out by an officer mentioned in sub- section (1) in accordance with such directions issued by the said Court in this behalf.

105E. Seizure or attachment of property. (1) Where any officer conducting an inquiry or investigation under section 105D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned. 854C2 (2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the said Court within a period of thirty days of its being made.

105F Management of properties seized or forfeited under this Chapter.

105F. Management of properties seized or forfeited under this Chapter. (1) The Court may appoint the District Magistrate of the area where the property is situated, or any other officer that may be nominated by the District Magistrate, to perform the functions of an Administrator of such property. (2)The Administrator appointed under sub-section (1) shall receive and manage the property in relation to which the order has been made under subsection (1) of section 105E or under section 105H in such manner and subject to such conditions as may be specified by the Central Government. (3) The Administrator shall also take such measures, as the Central Government may direct, to dispose of the property which is forfeited to the Central Government.

105G.Notice of forfeiture of property. (1) If as a result of the inquiry, investigation or survey under section 105D, the Court has reason to believe that all or any of such properties are proceeds of crime, it may serve a notice upon such person (hereinafter referred to as the person affected) calling upon him within a period of thirty days specified in the notice to indicate the source of income, earnings or assets, ot of wceich or by means of which be has acquired such property, the evident on which be relies and other relevant information and particulars, and to show cause why all or any of such properties, as the cam may be, should not be declared to be proceeds of crime and forfeited to the Central Government, (2)Where a notice under sub-section (1) to any person specifies any property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other 105H Forfeiture of property in certain cases.

105H.Forfeiture of property in certain cases. (1) The Court may, after considering the explanation, if any to the show-cause notice issued under section 105G and the material available before it and after giving to the person affected (and in a case where the person affected holds any property specified in the notice through any other Person, to such other person also) a reasonable opportunity of being heard by order record a finding whether all or any of the properties in question are proceeds of crime: Provided that if the person affected (and in a case where the person affected holds any property specified in the notice through any other person such other person also) does not appear before the Court or represent his case before it within at period or thirty days specified in the slow-cause notice, the Court may proceed to record a finding under this sub-section ex parte on the basis of evidence available before it. (2) Where the Court is satisfied that some of the properties re- ferred to in the slow-cause notice are proceeds of crime but it is not possible to identify specifically such properties, then, it shall 854C3 be lawful for the Court to specify the properties which, to the best of its judgment, are proceeds of crime and record a finding according- ly under sub-section (1). (3)Where the Court records a finding under this section to the effect that any property is proceeds of crime, such property shall stand forfeited to the Central Government free from all encumbrances. (4)Where any shares in a company stand forfeited to the Central Government under this section, then, the company shall, notwithstand- ing anything contained in the Companies Act, 1956 (1 of 1956), or the articles of association of the company, forthwith register the Central Government as the transferee of such shares.

105I. Fine in lieu of forfeiture. (1) Where the Court makes a declaration that any property stands forfeited to the Central Government under section 105H and it is a case where the source of only a part of such property has not been proved to the satisfaction of the Court, it shall make an order giving an option to the person affected to pay, in lieu of forfeiture, a fine equal to the market value of such part. (2) Before making an order imposing a fine under sub-section (1), the person affected shall be given a reasonable opportunity of being heard. (3) Where the person affected pays the fine due under sub-section (1), within such time as may be allowed in that behalf, the Court may, by order, revoke the declaration of forfeiture under section 105H and thereupon such property shall stand released. 105J Certain transfers to be null and void. 105J.Certain transfers to be null and void. Where after the making of in order under sub-section (1) of section 105E or the issue of a notice under section 105G, any property referred to in the said order or notice is transferred by any mode whatsoever such transfers shall, for the purposes of the proceedings under this Chapter, be ignored and if such property is subsequently forfeited to the Central Government under section 105H, then, the transfer of such property shall be deemed to be null and void.

105K. Procedure in respect of letter of request. Every letter of requests summons or warrant, received by the Central Government from, and every letter of request, summons or warrant, be transmitted to a contracting State under this Chapter shall be transmitted to a contracting State or, as the case may be, sent to the concerned Court in India in such form and in such manner as the Central Government may be notification specify in this behalf.

105L.Application of this Chapter. The Central Government may, by notification in the of Gazette, direct that the application of this Chapter in relation a contracting State with which reciprocal arrangements have been shall be subject to such conditions, exceptions or qualifications as are specified in the said notification.] (4) An order under this section may also be made by an Appellate Court or by a Court when exercising its powers of revision.

107.Security for keeping the peace in other cases. (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, 1*[with or without sureties,] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.

108. Security for good behaviour from persons disseminating seditiousmatters.

108.Security for good behaviour from persons disseminating seditious matters. (1) When [an Executive Magistrate]2* receives infor- mation that there is within his local jurisdiction any person who, within or without such jurisdiction,- (i) either orally or in writing or in any other manner, intentionally disseminates or attempts to disseminate or abets the dissemination of,- (a)any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 295A of the Indian Penal Code (45 of 1860), or (b)any matter concerning a Judge acting or purporting to act in the discharge of his official duties which amount to criminal intimidation or defamation under the India Penal Code (45 of 1860), (ii) makes, produces, publishes or keeps for sale, imports, export conveys, sells, lets to hire, distributes, publicly exhibits or in any other manner puts into circulation any obscene matter such as is referred to in section 292 of the Indian Penal Code ( 45 of 1860), ---------------------------------------------------------------------- 1 Ins. by Act 45 of 1978, S. 11 ( w.e.f. 18.12. 1978). 2 Subs by Act by 63 of 1980, S. 2 (w.e.f. 23.9.1980). ---------------------------------------------------------------------- 856 and the Magistrate is of opinion that there is sufficient ground for proceeding, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit. (2) No proceedings shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under, and edited, printed and published in conformity with, the rules laid down in the Press and Registration of Books Act,1867 (25 of 1867), with reference to any matter contained in such publication except by the order or under tile authority of the State Government or some officer empowered by the State Government in this behalf.

109.Security for good behaviour from suspected persons. When [an Executive Magistrate]1* receives information that there is within his local jurisdiction a person taking precaution to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate may in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such. period, not exceeding one year, as the Magistrate thinks fit.

110.Security for good behaviour from habitual offenders. When [an Executive Magistrate.]1* receives information that there is within his local jurisdiction a person who- (a) is by habit a robber, house-breaker, thief, or forger, or, (b) is by habit a receiver of stolen property knowing the same to have been stolen, or (c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property, or (d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code (45 of 1860), or under section 489A, section 489B, section 489C or section 489D of that Code, or (e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or ----------------------------------------------------------------------- 1 Subs. by Act 63 of 1980, S. 2 (w.e.f. 23.9.1980). ----------------------------------------------------------------------- 857 (f) habitually commits, or attempts to commit, or abets the commission of- (i) any offence under one or more of the following. Acts, namely : - (a) the Drugs and Cosmetics Act, 1940 (23 of 1940); 1*[(b) the Foreign Exchange Regulation Act, 1973] (46 of 1973); (c) the Employees' Provident Funds 2*[and Family Pension Fund] Act, 1952; -- of 1952. (d)the Prevention of Food Adulteration Act, 1954 (37 of 1954); (e)the Essential Commodities Act, 1955 (10 of 1955); (f)the Untouchability (Offences) Act, 1955 (22 of 1955); (g)the Customs Act, 1962 or (52 of 1962); (ii) any offence punishable under any other law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs or of corruption, or (g) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit.

111.Order to be made. When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.

112.Procedure in respect of person present in Court. If the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him. ---------------------------------------------------------------------- 1Subs. by Act 56 of 1974, s. 3 and Sch. IT, for cl. (b) (w.e.f. 10-1-1975), 2 Ins. by s. 3 and Sch. II, ibid, (w.e.f. 10-1-1975). -------------------------------------------------------------------- 858 113. Summons or warrant in case of person not so present. 113. Summons or warrant in case of person not so present. If such person is not present in Court, the Magistrate shall issue in a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the Court : Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.

114. Copy of order to accompany summons or warrant. Every summons or warrant issued under section 113 shall be accompanied by a copy of the order made under section 111, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same.

115.Power to dispense with personal attendance. The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace or for good behaviour and may permit him to appear by a pleader.

116.Inquiry as to truth of information. (1) When an order under section Ill has been read or explained under section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. (2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons-cases. (3) After the commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 111 has been made 859 to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded: Provided that- (a) no person against whom proceedings are not being taken under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour; (b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 111. (4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise. (5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall think just. (6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs : Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention. (7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.

117.Order to give security. If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond with or without sureties, the with Magistrate shall make an order accordingly: 860 Provided that- (a) no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 111 ; (b) the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive; (c) when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties.

118.Discharge of person informed against. If, on an inquiry under section 116, it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made, should execute a bond, the Magistrate shall make an entry on the record to that effect, and if such person is in custody only for the purposes of the inquiry, shall release him, or, if such person is not in custody, shall discharge him.

119.Commencement of period for which security is required. (1) If any person, in respect of whom an order requiring security is made under section 106 or section 117, is, at the time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the period for which such security is required shall commence on the expiration of such sentence. (2) In other cases such period shall commence on the date of such order unless the Magistrate, for sufficient reason, fixes a later date.

120.Contents of bond. The bond to be executed by any such person shall bind him to keep the peace or to be of good behaviour, as the case may be, and in the latter case the commission or attempt to commit, or the abetment of, any offence punishable with imprisonment, wherever it may be committed, is a breach of the bond.

121.Power to reject sureties. (1) A Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor under this Chapter on the ground that such surety is an unfit person for the purposes of the bond : Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate to him. 861 (2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the surety and to the person by whom the surety was offered and shall, in making the inquiry, record the substance of the evidence adduced before him. (3) If the Magistrate is satisfied, after considering the evidence so adduced either before him or before a Magistrate deputed under sub section (1), and the report of such Magistrate (if any), that the surety is an unfit person for the purposes of the bond, he shall make an order refusing to accept or rejecting, as the case may be, such surety and recording his reasons for so doing : Provided that, before making an order rejecting any surety who has previously been accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause the person for whom the surety is bound to appear or to be brought before him.

122.Imprisonment in default of security. (1) (a) If any person ordered to give security under section 106 or section 117 does not give such security on or before the date on which the period for Which such security is to be given commences, the shall, except in the case next hereinafter mentioned, be committed to prison, or, if he is already in prison, be detained in prison until such period expires or until within such period -he gives the security to the Court or Magistrate who made the order requiring it. (b) If any person after having executed a bond without sureties for keeping the peace in pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of such Magistrate or his successor-in-office, to have committed breach of the bond, such Magistrate or successor- in--office may, after recording the grounds of such proof, order that the person be arrested and detained in prison until the expiry of the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law. (2) When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be, before such Court. (3) Such Court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, and after giving the concerned person a reasonable opportunity of being heard, may pass such order on the case as it thinks fit : Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years. (4) If security has been required in the course of the same proceeding 'from two or more persons in respect of any one of whom the proceedings are referred to the Sessions Judge under sub-section (2), such reference shall also include the case of any other of such persons who has been ordered to give security, and the provisions of sub-sections (2) and (3) shall, in that event, apply to the case of such other person also, except that the period (if any) for which he may be imprisoned, shall not exceed the period for which he was ordered to give security. (5) A Sessions Judge may in his discretion transfer any proceedings laid before him under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings. (6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the matter to the Court or Magistrate who made the order, and shall await the orders of such Court or Magistrate. (7) Imprisonment for failure to give security for keeping the peace shall be simple. (8) Imprisonment for failure to give security for good behaviour shall, where the proceedings have been taken under section 108, be simple, and, where the proceedings have been taken under section 109 or section 110, be rigorous or simple as the Court or Magistrate in each case directs.

123. Power to release persons imprisoned for failing to give security.

123.Power to release persons imprisoned for failing to give security. (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. ----------------------------------------------------------------------- 1 Subs. by Act 45 of 1978, s. 12, for "the Chief Judicial Magistrate" (w.e.f. 18-12-1978). ----------------------------------------------------------------------- 863 (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 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 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 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] 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 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]. (7)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 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 ---------------------------------------------------------------------- 1 Subs. by Act 45 of 1978, s. 12, for "Chief Judicial Magistrate" (w.e.f. 18-12-1978). ---------------------------------------------------------------------- 864 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 and the 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 bound to appear or to be brought before it.

124.Security for unexpired period of bond. (1) When a person for whose appearance a summons or warrant has been issued under the proviso to sub-section (3) of section 121 or under sub-section (10) of section 123, appears or is brought before the Magistrate or Court, the Magistrate or Court shall cancel the bond executed by such person and shall order such person to give, for the unexpired portion of the term of such bond, fresh security of the same description as the original security. (2) Every such order shall, for the purposes of section 120 to 123 (both inclusive), be deemed to be an order made under section 106 or section 117, as the case may be.

CHAPTER IX ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

125.Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or ----------------------------------------------------------------------- 1 Subs. by Act 45 of 1978, s. 12, for "Chief Judicial Magistrate" (w.e.f, 18-12-1978). ------------------------------------------------------------------------ (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct : Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.-For the purposes of this Chapter,- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due : Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such 866 Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. (4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

126.Procedure. (1) Proceedings under section 125 may be taken against any person in any district- (a) where he is, or (b) where he or his wife, resides, or (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proceed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper. (3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.

127.Alteration in allowance. (1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Magistrate may make such alteration in the allowance he thinks fit : Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded. (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that- (a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,- (i) in the case where, such sum was paid before such order, from the date on Which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.

128.Enforcement of order of maintenance. A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any or to the person to whom the allowance is to be paid ; and such 868 order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due.

129.Dispersal of assembly by use of civil force. (1) Any executive Magistrate or officer in charge of a police station or, in the absence of such officer in charge, any police officer, not below the rank of a sub-inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse ; and it shall thereupon be the duty of the members of such assembly to disperse accordingly. (2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law.

130.Use of armed forces to disperse assembly. (1) If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces. (2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law. (3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, 869 and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.

131. Power of certain armed force officers to disperse assembly.

131.Power of certain armed force officers to disperse assembly. When the public security is manifestly endangered by any such assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse such assembly with the help of the armed forces under his command, and may arrest and confine any persons forming part of it, in order to disperse such assembly or that they may be punished according to law; but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the instructions of the Magistrate, as to whether he shall or shall not continue such action.

132. Protection against prosecution for acts done under preceding sections.

132.Protection against prosecution for acts done under preceding sections. (1) No prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 shall be instituted in any Criminal Court except- (a) with the sanction of the Central Government where such person is an officer or member of the armed forces ; (b) with the sanction of the State Government in any other case. (2) (a) No Executive Magistrate or police officer acting under any of the said sections in good faith ; (b) no person doing any act in good faith in compliance with a requisition under section 129 or section 130 ; (c) no officer of the armed forces acting under section 131 in good faith ; (d) no member of the armed forces doing any act in obedience to any order which he was bound to obey; shall be deemed to have thereby committed an offence. (3) In this section and in the preceding sections of this Chapter,- (a) the expression "armed forces" means the military, naval and air forces, operating as land forces and includes any other Armed Forces of the Union so operating; (b) "officer", in relation to the armed forces, means a person commissioned, gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant 870 officer, a petty officer, a non-commissioned officer and a non-gazetted officer; (c) "member", in relation to the armed forces, means a person in the armed forces other than an officer.

133.Conditional order for removal of nuisance. (1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers- (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public ; or (b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated ; or (c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped ; or (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary ; or (e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public ; or (f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupa- tion, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order- (i) to remove such obstruction or nuisance ; or (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance ; or (iv) to remove, repair or support such building, tent or structure, or to remove or support such trees ; or (v) to fence such tank, well or excavation ; or (vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute. (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation-A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.

134.Service or notification of order. (1) The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons. (2) If such order cannot, be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rules, direct, and a copy thereof shall be struck up at such place or places as may be fittest for conveying the Information to such person,

135.Person to whom addressed to obey or show cause. The person against whom such order is made shall- (a) perform, within the time and in the manner specified in the order, the act directed thereby ; or (b) appear in accordance with such order and show cause against the same.

136.Consequences of his failing to do so. If such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in section 188 of the Indian Penal Code, and the order shall be made absolute.

137.Procedure where existence of public right is denied. (1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court ; and, if he finds that there is no such evidence, he shall proceed as laid down in section 138. (3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial. 138. Procedure where he appears to show cause. 138.Procedure where he appears to show cause. (1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case. (2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification. (3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

139. Power of Magistrate to direct local investigation and examination ofan expert.

139.Power of Magistrate to direct local investigation and examination of an expert. The Magistrate may, for the purposes of an inquiry under section 137 or section 138- (a) direct a local investigation to be made by such person as he thinks fit ; or (b) summon and examine an expert.

140. Power of Magistrate to furnish written instructions, etc.

140.Power of Magistrate to furnish written instructions, etc. (1) Where the Magistrate directs a local investigation by any person under section 139, the Magistrate may- (a) furnish such person with such written instructions as may seem necessary for his guidance ; (b) declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid. (2) The report of such person may be read as evidence in the case. (3) Where the Magistrate summons and examines an expert under section 139, the Magistrate may direct by whom the costs of such summoning and examination shall be paid.

141. Procedure on order being made absolute and consequences ofdisobedience.

141.Procedure on order being made absolute and consequences of disobedience. (1) When an order has been made absolute under section 136 or section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860). (2) If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate's local jurisdiction and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found. (3) No suit shall lie in respect of anything done in good faith under this section.

142.Injunction pending inquiry. (1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to 874 the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter. (2)In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury. (3)No suit shall lie in respect of anything done in good faith by a Magistrate under this section.

143. Magistrate may prohibit repetition or connuance of public nuisance,.

143.Magistrate may prohibit repetition or connuance of public nuisance,. A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate empowered by the State Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Indian Penal Code (45 of 1860), or any special or local law.

144. Power to issue order in urgent cases of nuisance of apprehendeddanger.

144.Power to issue order in urgent cases of nuisance of apprehended danger. (1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray. (2)An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (3)An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. (4)No order under this section shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification. (5)Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office. (6)The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). (7)Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order ; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.