Ram Charan Maitie and another vs Umesh Chandra Mondal

The petitioners in this case have been convicted, on a summary trial, of the offence of theft punishable under sec. 379 of the Indian Penal Code and have each been sentenced to pay a fine of Rs. 30, or, in default, to suffer rigorous imprisonment for one week. They have also each been required to furnish security in the sum of Rs. 100 for keeping the peace for one year, evidently under sec. 106 of the Code of Criminal Procedure, though the section is not expressly referred to in the order itself. The ground upon which we are asked to set aside this last mentioned order, namely, the order requiring the petitioners to give security for keeping the peace, is that the case does not come under sec. 106 of the Code of Criminal Procedure, the only provision of the law under which the order could have been made. No one appears to show cause. But the learned Deputy Magistrate has submitted an explanation; and in that explanation he says--"Although I convicted the accused in the case under sec. 378, I.P.C., I directed them to execute personal recognizance bond under sec. 106, Cr.P.C., because I considered that the acts of the accused, as disclosed by the evidence, seemed to show an intention on their part of committing a breach of the peace" And then, in support of his Order, he refers to two cases, namely, Queen v. Gendoo Khan 7 W.R. Cr. p. 14 and Queen v. Jhapoo 20 W.R. Cr. p. 37.

Now, sec. 106 enacts that " whenever any person accused of rioting, assault or other breach of the peace, or of abetting the same, or of assaulting armed men or taking other lawful measures with the evident intention of committing the same, or any person accused of committing criminal intimidation by threatening injury to person or property, is convicted of such offence before a High Court, a Court of Session or the Court of a Presidency Magistrate, a District Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class, and such Court is of opinion that it is necessary to require such person to execute a bond for keeping the peace, such Court may, at the time of passing the sentence on each person, order him to execute a bond," &c., so that before an order under this section can be sustained, the person against whom the order is made must be convicted of some one or other of the offences mentioned or referred to in the section. But the only offence of which the accused have been convicted in this case namely, theft, punishable under sec, 379 of the Indian Penal Code, is one that does not, in our opinion, come within the description of offences mentioned or referred to in sec-106. That being so, we think the order under sec. 106 is not sustainable.

As to the cases referred to by the learned Deputy Magistrate, we think it sufficient to say that they are both distinguishable from the one before us, in this respect, namely, that the conviction in each of those cases was for an offence which came within the description of offences referred to in the section of the Code then in force under which the recognizance was taken; the offence being criminal trespass under sec. 447 of the Indian Penal Code, and it having been found that the accused entered upon the property of the complainant with the intention of committing a breach of the peace. The result then is that the Rule is made absolute, and the order binding the petitioners down under sec. 106, Cr.P.C., is set aside.