SEM notice asking Neha Bora to sign peace bond not based on mere hearsay: Delhi High Court

The Delhi High Court on Friday observed that the show-cause notice issued by a Special Executive Magistrate (SEM) to All India Students Association (AISA) president Neha Bora to execute a personal bond of ₹10,000 and maintain peace was not based on mere "hearsay".

Justice Subramonium Prasad observed that the notice was based on the kalandara dated October 17, which consists of the three general diary entries registered at different Police Stations related to different dates and events.

"As such, this Court cannot sit in the armchair of the SEM to test the subjective satisfaction of the sufficiency of material and as to whether the opinion has been correctly been arrived at by the SEM or not," the Bench said.

The Court said that the notice, issued under Sections 126 and 130 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), met the legal requirements for initiating preventive proceedings.

The High Court returned the finding as it dismissed Bora's plea against the notice.

However, the Court directed the Police to provide all the material to Bora on which reliance will be placed at the time of enquiry and on which basis the notice has been issued.

"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," the Court ordered.

It clarified that the SEM must independently assess the material before deciding whether Bora should be directed to furnish a bond during the inquiry.

"This Court, however, deems it fit to state that the SEM must necessarily keep in mind the import of Section 135 of the BNSS and leaves it open for the SEM to decide on the insistence of a bond at the first instance, as the provision provides for furnishing a bond only if there is an apprehension of breach of peace or disturbance after the commencement and before the completion of the enquiry," the Court said.

The notice under challenge was issued by the Delhi Police to Bora on October 18, directing them to appear before the Special Executive Magistrate (SEM) on October 19.

It directed Bora to execute a personal bond of ₹10,000 with a surety to “maintain peace during the period of inquiry” against them.

According to Bora’s plea, the notice dated October 17 was issued by the SEM under Sections 126 and 130, read with Section 135(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), citing apprehensions of breach of public peace and tranquillity.

The notice cited allegations of sloganeering at Mandi House, repeated protests around Jantar Mantar despite prohibitory orders under Section 163 of the BNSS, and allegedly instigating people to participate in a protest at Connaught Place.

However, according to Bora's plea, the notice does not disclose any material establishing a likelihood of breach of peace or identify a specific event or period during which such a breach is apprehended.

Bora alleged that the proceedings amount to an attempt to curb peaceful dissent and violate their fundamental rights to freedom of speech, assembly and personal liberty.

Senior Advocate Gopal Sankaranarayanan with advocates Abhik Chimni, Pranjal Abrol, Ayan Das Gupta, Moksha Sharma, Gurupal Singh, Kartik Venu, Vishal Sinha, Kanish Garg, Indu Mugi C and Aayushman Aggarwal appeared for Neha Bora.

ASG Chetan Sharma, CGSC Ashish K Dixit with advocates Umar Hashmi, Amit Gupta, Shubham Sharma, Naman, Adhiraj Singh and Shaurya R Rai appeared for the Delhi Police.

[Read Judgement]