Authored By : J.F. Stevens, Richard Harington

J.F. Stevens and Richard Harington, JJ.

1. The learned Sessions Judge in upholding the convictionunder Section 147 of the Indian Penal Code in the case expressed the opinionthat the order which had been passed by the first Court requiring security tokeep the peace under the provisions of Section 106 of the Code of CriminalProcedure, was one, to use his own expression, of which he doubted theadvisability; but he held that he could not interfere with it on appeal.

2. This Rule was granted to show cause why the order underSection 106 should not be considered by the Sessions Judge, inasmuch as it wasa part of the case in appeal before that officer.

3. Sub-section 3 of Section 106 provides that an order underthe section may be made by an Appellate Court and it would, we think, be verystrange if the Legislature empowered an Appellate Court to pass such an orderfor the first time in appeal and yet did not empower it to set aside an orderof the same kind in appeal after it had been passed by the Court of firstinstance. It seems to us that a case of this kind is within the scope of Clause(d) of Section 423 of the Code of Criminal Procedure, which provides that anAppellate Court may make any amendment, or any consequential or incidentalorder, that may be just and proper. We think that an order in appeal, settingaside an order of the first Court made under Section 106, is an incidentalorder within the meaning of Section 423.

4. We therefore make the rule absolute and we remit the caseto the Appellate Court to consider the order under Section 106 of the Code ofCriminal Procedure.

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Abdul Wahed vs.Amiran Bibi (04.03.1902 - CALHC)