Chajju v. Emperor

Lindsay, J.:— This is an application on behalf of Chajju and four others who were convicted in the Court of a Magistrate on charges under sections 147 and 323 of the Indian Penal Code. Under the former section each of the accused was sentenced to two months' rigorous imprisonment and under the latter each of them was given one month's rigorous imprisonment: the sentences were to run consecutively. In addition to these punishments the Magistrate ordered each of the accused to be bound over under section 106 of the Code of Criminal Procedure to keep the peace. In appeal the Sessions Judge set aside the convictions and sentences under section 147 but maintained the convictions and sentences under section 323 of the Indian Penal Code. He also maintained the order for security under section 106. The first point raised here in revision is the there was an order of acquittal which was a bar be the trial by the Magistrate who convicted the accused. In order to understand the nature of this plea it is necessary to sat out certain facts. The case against the accused was instituted in the Court of a Magistrate, Rai Sahib Ratan Chand. This gentleman took the prosecution evidence and framed a charge against the accused but before he could bake the defence evidence he was transferred. The case was then made over to his successor Mr. Chimman Lal. It is apparent from the record the when this latter gentleman took up the case an application was made to him by the accused under the provision of section 350, sub-section 1, proviso (a) of the Cr PC. The accused demanded the witnesses might be re-summoned and reheard and the Magistrate passed an order irecting the this should be done. In spite of this order, however, the Magistrate took up the case and dealt with it on the evidence which was upon the record and which he had not himself heard. He passed what purported to be an order of acquittal and the order of acquittal was subsequently discharged by the District Magistrate in the exercise of his powers of revision. The learned District Magistrate treated the order not as an order of acquittal but as an order of discharge and he directed a new trial. It has been argued before ma the District Magistrate had no aubhoriby to revise what was an order of acquittal but with this contention I cannot agree. It is clear to me the order of acquittal passed by Mr. Chimman Lal was an absolutely illegal order. After the accused demanded to have the witnesses recalled and re-heard it was the duby of the Magistrate to send for the witnesses and take their statements. He acted in my opinion in violation of the clear provision of section 350 and the order which he calls an order of acquittal was a void order in law. It may not have been an order of discharge but at any rate it is clear to me that it was an invalid order which the District Magistrate has certainly authority to set aside. I hold therefore the so-called order of acquittal was no bar to the trial in which the accused were convicted.

2. The next point taken is the inasmuch as the learned Sessions Judge set aside the conviction under section 147, I.P.C, he ought for the reason to have discharged the order requiring these accused to file security for keeping the peace. This argument is based on the language of Section 106 of the Cr PC and it has been submitted the where there is a conviction under section 323 I.P.C the Court has no power under section 106 to demand security for keeping the peace. I am unable to accept this argument. I am aware the there is a difference of opinion regarding the interpretation of for his section but to me it seems quite dear the there is nothing to prevent a Magistrate from baking security from persons who have been convicted under section 323, to keep the peace under this section. Section 106 begins as follows, “Whenever any person accused of rioting, assault or other offences involving a breach of the peace etc.” It is dear from this language the offences of rioting and assault are treated as offences which involve a breach of the peace and the section gives power to a Magistrate to take security from persons who are convict-ad of “other offences involving a breach of the peaoe.” If the offence of assault is treated under this section as being one which involves a breach of the peace it seems a fortiori the offence of voluntarily causing hurt must also be deemed to involve a breach of the peace. The common characteristic of these offences seems to be the use of criminal force or the show of criminal force. The offence of assault is defined in section 351, I.P.C, and the gist of the offence is the apprehension is caused to any person the criminal force is about to be used. If the offence goes beyond this and if there is an actual application of criminal force so as to amount to the offence of voluntarily causing hurt, then it seems to me the offence punishable under section 323 falls within the category of offences involving a breach of the peace. Similarly it is provided by this section the a person who is convicted on a charge under section 504 of the Indian Penal Code is liable to be bound over; the is the offence of criminal intimidation, in other words the offence of provoking a person to use criminal force.

3. It has been held by this Court the offences under sections 323 and 325 are offences involving a breach of peace and the where persons are convicted under either of these sections of the Indian Peual Code they may be bound over to keep the peace under Section 106 of the Cr PC.

4. The only other question is the of sentence. Bearing in mind the it the Sessions Judge has set aside the convictions under section 147 and that the accused have therefore only been sentenced each to imprisonment for one month, I see no reason for interference.

5. It is quite obvious the they committed a serious assault on the Complainant and his son.

6. The result is the application for a revision is dismissed.

7. The accused who are out on bail must surrender to their bail and serve out the unexpired portion of their sentences.

8. Application dismissed.