Authored By : Henry Thoby Princep, C.H. Hill

Henry Thoby Princep and C.H. Hill, JJ.

1. A Magistrate exercising powers of the third classconvicted Aji Sheikh of criminal trespass under Section 447, Indian Penal Code,and sentenced him to a fine of Rs. 10, or, in default, to rigorous imprisonmentfor seven days. He further submitted the case to the District Magistrate, witha recommendation that the accused should, under Section 106 of the Code ofCriminal Procedure, be bound over to keep the peace. The District Magistratehas required Aji Sheikh to furnish security to keep the peace, and the matteris now before us in revision on a reference by the Sessions Judge.

2. We are of opinion that the order of the DistrictMagistrate is illegal and must be set aside. The order of the DistrictMagistrate professes to have been made under Section 349 of the Code ofCriminal Procedure. That section, however, contemplates that when theMagistrate having jurisdiction over the offence under trial finds the accusedguilty of that offence, but considers that he is not competent to passpunishment of an appropriate description or sufficiently severe to meet theends of justice, he should submit the entire proceedings for the orders of theDistrict Magistrate or the Sub-Divisional Magistrate to whom he may besubordinate; and the section is further extended so as to enable him to deal inthe same way with a case in which he is of opinion that the accused ought to berequired to execute a bond under Section 106. But we observe that in such acase the order directing the particular punishment to be awarded, that is tosay, the conviction and sentence, should be passed by a superior Magistrate. Inthis particular instance, the sentence was passed by an inferior Magistrate,that is, by a Magistrate of the third class, and the proceedings were thensubmitted to the District Magistrate to be dealt with under Section 106.Consequently the case is not within the terms of Section 349. If we nextconsider the terms of Section 106 they contemplate that, before an orderrequiring security to keep the peace can be passed under it, the accused shallhave been convicted by some Court or Magistrate specified, not being of a classinferior to that of a Magistrate of the first class. Reading these two sectionstogether, therefore, we have no doubt that it was the intention of theLegislature that, before an order under Section 106 can be properly passed, theconviction of the accused shall have been by an order made by a Magistrate of asuperior class, and not, as in the present case, by a Magistrate of the thirdclass. The terms of Section 106, which enable any of the Courts or Magistratesspecified to require the execution of a bond to keep the peace, direct thatsuch an order may be passed at the time of passing sentence on such person.This also shows that the intention of the Legislature was that the convictionand order under Section 106 shall be passed by one and the same officer. Forthese reasons we are of opinion that the order under Section 106 must be setaside There are other objections taken to the proceedings in this case which itis unnecessary to mention.

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Mahmudi Sheikh vs.Aji Sheikh (31.03.1894 - CALHC)