Justice Subramonium Prasad, dismissing Bora’s petition on Friday, held that the Special Executive Magistrate (SEM) had sufficient material to initiate proceedings under Sections 126 and 130 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The court found no violation at this stage of safeguards established by the Supreme Court.
The ruling, however, requires the authorities to provide Bora with all material relied upon while initiating proceedings. The magistrate must also observe principles of natural justice before deciding whether she should furnish a bond.
The disputed notice, issued on October 17, directed Bora to show cause why she should not execute a personal bond of Rs 10,000, supported by one surety for an equivalent amount, to maintain peace during an inquiry.
The court clarified that the proceedings were preventive rather than punitive. Their purpose was to address an apprehended disturbance of public tranquillity, not to determine criminal liability or impose punishment for an established offence.
Justice Prasad observed that the magistrate had examined a police report, known as a kalandara, together with three general diary entries concerning different incidents. The magistrate had also examined three witnesses before forming an opinion that preventive proceedings were warranted.
The court rejected the contention that the notice rested entirely on hearsay. It held that the available material provided a basis for the magistrate’s preliminary assessment, although its ultimate sufficiency remained subject to the statutory inquiry.
The judgment emphasised that a constitutional court could not substitute its own assessment for the magistrate’s satisfaction merely because another interpretation of the available material was possible.
Judicial intervention at the preliminary stage would be justified where the statutory requirements were disregarded or the proceedings lacked any supporting material. The court found that neither circumstance had been established.
Referring to the Supreme Court’s decision in Madhu Limaye versus Sub-Divisional Magistrate, Monghyr, Justice Prasad held that the procedural protections governing preventive action had not been breached by issuing the show-cause notice.
The court nevertheless stressed that those protections must remain effective throughout the proceedings. Bora must receive the documents supporting the allegations and have an opportunity to contest the proposed requirement.
The magistrate was additionally directed to consider the implications of Section 135 of the BNSS, particularly whether an interim bond could be demanded immediately or only after circumstances arising during the inquiry justified such a requirement.
Bora had challenged the notice as vague, factually inaccurate and unsupported by credible evidence of any likelihood that she would disturb public peace.
Her petition alleged that the police were misusing preventive powers to suppress peaceful political dissent, thereby infringing constitutional guarantees concerning freedom of expression, peaceful assembly and personal liberty.
Senior advocate Gopal Sankaranarayanan, representing Bora, argued that her participation in political demonstrations and calls for governmental change could not themselves establish an apprehension of violence or disorder.
He also disputed allegations concerning her involvement in a demonstration at Connaught Place, maintaining that she had called for a separate peaceful gathering at Mandi House.
The authorities, represented by Additional Solicitor General Chetan Sharma and Central Government Standing Counsel Ashish Dixit, defended the notice as a lawful preventive measure based on information available to the magistrate.
The proceedings followed Bora’s detention on October 16, when she was travelling to participate in the Lehra Do Tiranga demonstration in central Delhi. She was released the following day.
Police allegations underlying the notice included sloganeering at Mandi House, participation in protests near Jantar Mantar despite prohibitory restrictions, and encouraging people to assemble for the October 16 demonstration.
The court examined the scope of an August 24 prohibitory order covering the Barakhamba Road and Tilak Marg police jurisdictions, including Mandi House, while assessing the material placed before the magistrate.
Bora had initially been directed to appear before the SEM on October 19. She approached the High Court challenging both the notice and the resulting proceedings.
The court heard arguments on Thursday before delivering its decision on Friday. The magistrate remains responsible for conducting the statutory inquiry and determining whether the circumstances justify requiring a bond from Bora.
