JUDGMENT
Boys, J.
1. This is a reference by the learned Additional Sessions Judge of Pilibhit. Five persons were convicted under Section 323, I.P.C. and four of them were sentenced to pay fines. A boy of the name of Debidin was ordered to be released and made over to a relative on the execution of a bond for his good behaviour. Further the four adult accused were ordered to furnish security under Section 106, Criminal P.C., for a period of one year. The four adult accused applied in revision to the Sessions Judge of Pilibhit an application which resulted in this reference. The effective ground taken in revision was that it having been found that five persons took part in the assault there was a riot, and the Magistrate had no jurisdiction to try the case summarily. It has been repeatedly held that it is not right to minimise an offence, for the Court to shut its eyes to a graver offence which on the facts found by it has been committed, and to refrain from charging the accused with that offence, and by such abstention to justify itself in trying the case summarily. The learned Sessions Judge has referred the case on this amongst other grounds. He has also expressed an opinion that a sentence of imprisonment was called for if the accused were, as they were found to be, guilty. The Magistrate found:
The high handed manner in which the accused have triad to take the law into their own hands does not require that a lenient view should be taken. I still would, not send the accused to jail.
2. At the retrial which I am going to order the Magistrate will no doubt not allow himself to be prejudiced by the fact that the accused have already been found guilty by another Court. He will similarly exercise his own judgment as to the appropriate punishment should he arrive at a finding of guilty.
3. Before concluding it is necessary to mention another point on which the learned Judge has referred the case since I am not in agreement with him. The trial Magistrate convicting the five persons under Section 323, I.P.C. held:
Five men caused serious injuries in a highhanded manner to an old man and their action involved a breach of the peace; there are, as I have already said, old sores that have not healed up; there is the Section 498 affair still fresh and the accused have shown a spirit of intolerance. I am of opinion that it is necessary to bind the accused to keep the peace.
4. He proceeded to bind the accused over under Section 106, Criminal P.C, to keep the peace for one year.
5. The learned Sessions Judge appears to have been of opinion that order under Section 106 was illegal. He refers to a decision of a Judge of this Court in Atma Ram v. Emperor A.I.R. 1927 All. 157. That case followed a decision of the same Judge in Mohammad Rahim v. Emperor A.I.R. 1926 All. 144. The learned Judge in Mohammad Rahim v. Emperor said:
Upon the mere finding that the accused and the complainant were not on good terms it is impossible to maintain the order passed, which does not come within the purview of Section 106, Criminal P.C.
6. and in the case of Atma Ram v. Emperor A.I.R. 1927 All. 157, the learned Judge remarked:
Now Section 323, I.P.C, is not an offence referred to in Section 106, Criminal P.C, but even then an order can be passed after a conviction under this section if it was found by the Magistrate that the offence involved a breach of the peace. But there must be a finding of the Magistrate; otherwise his order is not justified.
7. These remarks have been understood by the learned Sessions Judge to lay down a rule that security cannot be demanded under Section 106, Criminal P.C, where there has been a conviction under Section 323 merely on the ground that there is ill-feeling between the parties and that there are old sores not healed up. I am inclined myself to think that the learned Judge’s decisions in the case referred to were on their particular facts. For instance he describes the case Atma Ram v. Emperor A.I.R. 1927 All. 157, in the following words:
This was a case under Section 323, I.P.C. and it arose simply on account of a sudden altercation over a trivial matter.
8. If this is all that there was to show that the parties bore ill-feeling towards each other, it may well be that in the opinion of the learned Judge there was no sufficient indication that in the terms of Section 106 it was:
necessary to require such person to execute a bond for keeping the peace.
9. But the necessity must be judged in each case. I do not think that either of the two cases throw any doubt on the proposition of law that in all ordinary cases of conviction under Section 323 there is a conviction for an offence involving a breach of the peace, and the desirability of taking security must depend upon how far the circumstances indicate that such a breach of the peace is likely to recur. This is the view upon which Mr. Justice King and I myself acted without hesitation in the case Sobha Ram v. Emperor Criminal Ref. No. 18 of 1928 decided on 2nd May 1928. It will, therefore, be open to the Magistrate, at the retrial to take a bond under Section 106 if in his opinion the facts proved indicate the likelihood of a breach of the peace in the future on the part of the accused, of course provided that he has arrived at a conviction within Section 106.
10. Accepting the reference I set aside the convictions and sentences and direct that the fines, if paid, be returned, and that the five accused persons be retried in the Court of a competent Magistrate in a regular trial, not summarily, upon charges under Sections 323 and 147, I.P.C. and any other charges that may be disclosed by the evidence.
11. Let a copy of this judgment be sent to the District Magistrate for his information and for the information of Mr. Sri Krishna Kumar, Magistrate of the 1st C1. Pilibhit, who decided the original case.
