NAZIRUDDIN Vs. EMPEROR

JUDGEMENT

(1.) This is an application for the revision of an order of Mr. L. G. Lyde, City Magistrate of Cawnpore, who convicted the applicant's of offences under Section 323, Indian Penal Code and sentenced them to small fines, and further passed an order binding them over to keep the peace under Section 106, Criminal P.C. The Sessions Judge has already rejected an application for revision. So far as the facts of the case are concerned, it is only necessary to state that the applicants and the opposite parties have a quarrel which dates back over 30 years and that there has been a great deal of litigation between them. The incident out of which this case arose has been decided by the City Magistrate in accordance with the statements of the witnesses before him and we see no reason to examine them in order to decide in revision whether his decision appears to be justified by the evidence. The point that has been argued before us is a legal one, namely, whether the Magistrate was legally justified in passing an order under Section 106, Criminal P. C.

(2.) Mr. Aziz has argued, firstly, that the order of the Magistrate does not clearly show that there was an offence under Section 323, Indian Penal Code, secondly, that there is no clear finding that there was a breach of peace, thirdly, that an offence under Section 323, Indian Penal Code, does not necessarily involve a breach of the peace and fourthly, that the Court has not recorded a separate finding that it is necessary to require the applicants to execute bonds for keeping the peace. The Magistrate has not given a detailed account of the evidence, but his conclusion is: I have no real doubt that the accused beat the complainant. I convict them accordingly under S, 323, I.P.C.

(3.) This is the reply to the first argument of Mr. Aziz. We may take the second and third pleas together. There has been some difference of opinion as to whether an offence under Section 323, Indian Penal Code, necessarily involves a breach of the peace, and if it does not there is some force in the contention that in order to take proceedings under Section 106, Criminal P.C, the Magistrate must record a finding that in a particular case before him a breach of the peace is involved. Mr. Aziz has referred in the first place to a decision of a Bench of the Calcutta High Court in the case of Abdul Ali V/s. Emperor (1916) 43 Cal 671, in which it was held that in order to bring a case within the terms of Section 106, Criminal P.C, the Magistrate should expressly find that the acts of the accused involved a breach of the peace or were done with the evident intention of committing the same, or at all events the evidence must be so clear that, without an express finding, a superior Court is satisfied that such was the case. The Bench was dealing with a case in which there had been a conviction under Section 143, Indian Penal Code, and it was pointed out that a conviction under that section does not necessarily carry with it the implication that the persons convicted had the intention of committing a breach of the peace. Mr. Aziz's argument is that at the time of this decision in 1915 Section 143, Penal Code, was one of those for which accused persons could be bound over under Section 106, Criminal P.C. and he seeks apparently to-draw an inference from this fact that in the case of every offence mentioned in Section 106, Criminal P.C. it is necessary for the Magistrate to record a separate finding, in accordance with the dictum of the Calcutta High Court that there has been a breach of the peace in addition to holding that the actual offence has been committed. We quite agree that the offence of being a member of an unlawful assembly does not necessarily imply a breach of the peace, although it is one of those offences enumerated in Ch. 8, Indian Penal Code, as offences against the public tranquillity. It does not follow from this however that the offence of causing simple hurt, which is one of those offences enumerated in Ch. 16 of the Code, as offences affecting the human body, does not necessarily imply a breach of the peace. There is, it must be admitted, some authority for this proposition. We have been referred especially to the decisions of a Single Judge of this Court in the cases of Muhammad Rahim v. Emperor , and Emperor V/s. Atma Ram . In the earlier of these cases the late Banerji, J., remarked: In the absence of a finding that the assault which took place involved breach of the peace or public tranquillity, the Magistrate cannot merely on the ground that the parties were on bad terms-bind the accused down.