Jai Singh and others vs King-Emperor

Foster, J.—This is a petition in revision in respect of a judgment passed by the District Magistrate of Gaya, dated the 10th June 1926. In that case he had before, him five appellants who had been convicted in the Court of an Honorary Magistrate of the Second class under S. 323, I.P.C., and sentenced each to a fine of Rs. 50. The learned Magistrate found that the conviction of the appellants was justifiable, but he altered the sentence. He reduced the fine to the amount of Rs. 10 in each case and added to this an order under S. 106 of the Criminal P.C., calling upon each of the appellants to execute a bond of Rs. 50 with one surety of Rs. 50 each to keep the peace for a period of sis months. I have no doubt, and the findings are there before me, that these petitioners did in fact on the day and at the time and place alleged, assault the complainant in the manner described and that they did this in the course of a quarrel about the employment by the complainant''s party of one Koila Bhuia, whom the complainant''s party claimed to be their kamia. The learned Magistrate had on a previous occasion remanded the ease because Koila Bhuia had not been examined in the case and because it was denied on the part of the accused that such a man existed. On remand the Court found itself unable to bring Koila Bhuia to Court, but was of opinion that Koila Bhuia had been concealed by the accused patty. The District Magistrate accepted this.

On behalf of the petitioner it has been argued that when Koila Bhuia was not found, the prosecution case broke down. This is a question as to the value of the evidence into which I am not prepared to enter at this stage.

Two points have been urged in regard to the order under S. 106 of the Criminal P.C. First it is argued that where the original Court had no power to pass such an order, the appellate Court likewise had no such powers. The case of The Emperor Vs. Momim Malita was mentioned but on reference to the judgment of the Special Bench of this Court in Bachan Singh v. Emperor [1917] 2 P.L.J. 21= 3 P.L.W. 250= 37. I.C. 470= (1917) P.H.C.C. 57 it is clear that the Calcutta judgment is of no authority here. In Bachan Singh''s case [1917] 2 P.L.J. 21= 3 P.L.W. 250= 37. I.C. 470= (1917) P.H.C.C. 57 it was expressly decided that the Court of appeal had powers to pass an order under S. 106 of the Criminal P.C. oven where the trial Court had no such powers.

Coming now to the last point I find that the petitioners have some ground for impeaching this order under S. 106. of the Criminal P.C. It is urged on the behalf that in order to support an order under S. 106 the Court must, as a condition precedent, show some grounds for requiring the security. Now, I have looked carefully at the judgment of the learned District Magistrate, and note that this order was suddenly imposed upon them, apparently without notice. If in fact this proceeding under S. 106 was adopted without notice to parties, it was an incorrect procedure on general principles of justice. Then coming to the judgment it is to be seen what grounds the learned District Magistrate indicates for imposing this order upon the appellants in his Court. His judgment runs:

The second point raised is that the sanha and first complaint do not refer to any communal feeling between the parties. The S.I., however, enquired into the case at an early stage and he mentioned him as the root cause of the dispute. I do not think that it can he regarded as a later addition, though the complainant, perhaps wisely, did not refer to it in his complaint. In any case it does not affect the prosecution case vitally. The facts of the case appear to me to be well proved and the defence have not rebutted the prosecution evidence. The five accused convicted are all mentioned in the sanha lodged at the thana. They have, in my opinion, been rightly exuviated under S. 323, I.P.C.

They have each been sentenced to pay a fine of Rs. 50 each. I doubt whether the punishment is entirely suitable; in a case of this kind prevention of further offences is more desirable than a heavy fine, The offence committed clearly involved a breach of the peace and an order under S. 106, Criminal P.C., would have been justified. The learned lower Court was not competent to pass such an order, but such an order may be passed by an appellate Court. I therefore ....

I have quoted this at length in order to show first what the learned Magistrate''s conception of S. 106 is and secondly, to show on what data he bases his order. He apparently thinks that all that is necessary to pass an order under S. 106 is the fact that the accused have been convicted of an offence involving a breach of the peace. That is very far from an adequate statement of the law. But if it is unfair to fix upon one sentence, I would still maintain the opinion that the learned Magistrate has not a clear idea of the evidence upon which a Court must proceed. No. Magistrate trying a case is supposed to draw material for a conviction from the report of a Sub-Inspector, when that Sub-Inspector has not in fact been examined in Court. After quoting the Sub-Inspector''s dictum the learned District Magistrate has referred to several facts which indicate that the Sub-Inspector''s opinion has not been justified by the record here in Court. It seems that the idea of communal trouble between the parties was not to be found cither in the sanha or in the complaint. Then, when we look for the District Magistrate''s opinion on this particular point namely, that it would appear there is no ground for accepting the Sub-Inspector''s dictum, the Magistrate diverges into a discussion of the guilt of the accused under S. 323 I.P.C. So it follows that the reasons for finding it necessary to require the present petitioners to execute a bond to keep the peace, were never given by the learned Magistrate. In such circumstances it is clear that the order cannot stand. To the extent of that order under S. 106, Criminal P.C., the petition is allowed. The order requiring security is set aside and if any of the parties have furnished-security, the bond will be cancelled.