LAWS(PVC)-1935-9-6

DEWAN SINGH Vs. EMPEROR

Decided On September 23, 1935
DEWAN SINGH Appellant
V/S
EMPEROR Respondents

JUDGEMENT

(1.) THIS rule is limited to the question whether an order under Section 106, Criminal P.C, which was passed at the appellate stage should stand. The bond into which each of the prisoners is asked to enter is for Rs. 100 with one surety of the like amount to keep the peace for one year. The findings of fact are that when Tulsi Mahto collected mangoes from trees on plot 442 and sent intimation to the various maliks to make arrangements to take their respective shares, some of the amlas of one malik Hari Singh attended, but the first petitioner, who was the gomasta of Raghunandan Singh and other maliks, brought a mob, including the other petitioners; and on a claim that the trees belonged exclusively to his master removed the mangoes after assaulting with lathis the amlas of the first named malik. The petitioners were convicted under Section 147 and also under Sections 323 and 379, I.P.C., and were sentenced under Section 147, the first two petitioners who used ironbound lathis to three months rigorous imprisonment and the others to rigorous imprisonment for one month. No further sentence was passed under Secs.323 and 379. Upon appeal the convictions under Sections 147 and 323 were maintained, while that under Section 379 was set aside. The sentences were mentioned and the appellate Court then added the following: As the trouble may recur, I think that an order under Section 106, Criminal P.C., should be made, and under that section, I direct the appellants each to enter into a bond for Rs. 100 with one surety of the like amount to keep the peace for one year.

(2.) IN support of the rules reliance is placed upon the decision in Jai Singh v. Emperor 1927 Pat 37. For the opposite party the contention is that that case is easily distinguishable from the present case as being a petty matter in which the Magistrate of the Second Class convicted under Section 323 and imposed a fine of Rs. 50 and the District Magistrate in appeal reduced the fine to one of Rs. 10 and added an order under Section 106, Criminal P.C. The contention on behalf of the opposite party is clearly sound. The present is a very different case in which Beradar Lal, a servant of Hari Singh, a malik, received at least five lathi blows, and there is every reason to apprehend that there may be a recurrence of the trouble owing to the violence of the party of the petitioners. It is however objected further to the order under Section 106 that no notice was given to the petitioners before the order was passed and reliance is again placed upon the decision cited. I am however cot prepared to accept the view that it is an incorrect procedure contrary to general principles of justice for the appellate Court to pass an order under Section 106 without a special notice to the parties. It may reasonably be supposed that the whole matter is peculiarly within the vision of the appellate Court after it has heard the advocate on behalf of the appellants and that the appellants, especially in a case of appeal from a Magistrate of the Second Class, must, in spite of Section 349, Criminal P.C., have always before their eyes the possibility that the appellate Court will think it necessary to pass an order which the trying Court not having First. Class powers, was not authorized to pass. Neither on principle nor in the circumstances of the particular case is any ground made out to warrant interference with the order under Section 106 passed by the appellate Court. The application is therefore without merits and the Rule is discharged.