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1. The petitioners have been convicted of an offence under Section 448, Indian Penal Code, which is not an offence of which breach of the peace is a necessary ingredient. The words of Section 106, Criminal Procedure Code, under which the order binding down the petitioners has been made are or other offences involving a breach of the peace” In Muthiah Chetty v. Emperor 29 M. 190; 3 Cr. L.J. 461 which is the decision of a Division Bench of this Court by which I am bound, these words have been construed to mean that the accused against whom an order like this is sought to be passed must have been convicted of an offence into which breach of the peace necessarily enters as a constituting element.
2. This case has been followed by the learned Chief Justice in Cr. R.C. No. 168 of 1906. On the other hand, Stevens and Harrington JJ., in the case of Tarini Charan Mundle v. Gourikant Biswas 7 C.W.N. 25 seem to be of opinion that even if the conviction be under a section of which breach of the peace is not a necessary ingredient but the facts found show that in committing the offence the abused did acts involving a breach of the peace, Section 106, Criminal Procedure Code, would be applicable.
3. As I have said, I am bound to follow the ruling Muthiah Chetty v. Emperor 29 M. 190; 3 Cr. L.J. 461. I may say, further, that I am inclined to agree with that decision. I hold therefore, that the order under Section 106 must be set aside.