The Petitioners were convicted under secs. 447 and 426 of the Indian Penal Code, the case being that they entered upon certain land of the complainant in which seedlings were at the time growing and ploughed that land, destroying some of the seedlings.
It appears that one of the Petitioners had purchased the land, and that the act was done by way of asserting his claim to title and possession. The case was tried summarily, and at the end of the judgment appears the following:—“The accused used twelve ploughs. Wherefore it is evident to show that they were ready to commit breach of the peace when opposed by the other party. They were therefore liable also under sec. 106 of the Code of Criminal Procedure.” The Deputy Magistrate, acting, as he considered, in accordance with the provisions of that section, bound the Petitioners down to keep the peace.
The present rule was issued to show cause why the order passed under sec. 106 of the Code of Criminal Procedure should not be set aside, on the ground that the offences of which the Petitioners have been convicted do not fall within the terms of that section. The Deputy Magistrate has submitted an explanation, in the course of which he states that the evidence of the witnesses brought to light that the accused had also lathials. Nothing is said in the judgment about any lathials, but an inference as to the intention to commit a breach of the peace is drawn merely from the number of ploughs said to have been used by the Petitioners.
We think that inasmuch as the offences of which the Petitioners were convicted do not, in themselves, and apart from any other incidents, come within the terms of sec. 106, it was incumbent upon the Deputy Magistrate to record a clear finding with respect to the facts, which, in his opinion, made the provisions of that section applicable. We are supported in this view by the case of Jib Lal Gir v. Jogmohun Gir.
We think that, on the record as it stands, the order made under sec. 106 is bad. We therefore make the rule absolute, and set that order aside.
Rule made absolute.