1. 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.
2. 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.
3. The first point raided here in revision is that there was an order of acquittal which was a bar to the trial by the Magistrate who convicted the accused. In order to understand the nature of this plea, it is necessary to set out certain fasts. The case against the accused was instituted in the Court of a Magistrate, Rai Sahib Ratan Chand. This gentleman look the prosecution evidence and framed a charge against the accused, but before he could take the defence evidence he Was transferred. The case was then made over to his successor, Mr. Chimman Lal. It is apparent from the record that 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 Code of Criminal Procedure. The accused demanded that the witnesses might be re-summoned and reheard and the Magistrate passed an order directing that this should be done.
4. 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 that 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 me that the District Magistrate had no authority to revise what was an order of acquittal, but with this contention I cannot agree. It is clear to me that the order of acquittal passed by Mr. Chimman Lal was an absolutely illegal order. After the accused demanded to have the witnesses re sailed and re-heard, it was the duty 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 had certainly authority to sat aside. I hold, therefore, that the so called order of acquittal was no bar to the trial in which the accused ware convicted.
5. The next point taken is that inasmuch as the learned Sessions Judge set aside the conviction under Section 147, he ought for that reason to have discharged the order requiting these accused to file security for keeping the peace. This argument is based on the language of Section 106, Criminal Procedure Code, and it has bean submitted that Where there is a conviction under Section 323, the Court has no power under Section 105 to demand security for keeping the peaces. I am unable to accept this argument. I am aware that there is a difference of opinion regarding the interpretation of this section, but to me it seems quite clear than chare is nothing to prevent a Magistrate from taking 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 offense involving a breach of the peace,' etc., It is clear from this language that the offenses of rioting and assault are treated as offenses which involve a breach of the peace and the section gives power to a Magistrate to take security from persons who are convicted of' other offenses involving a breach of the peace.' If the offense of assault is treated under this section as being one which involves a breach of the peace, it seems a fortiori that the offense of voluntarily causing hurt must also be deemed to involve a breach of the peace. The common characteristics of these offenses seems to be the use of criminal force or the show of criminal force. The offense of assault is defined in Section 351, and the gist of the offense is that apprehension is caused to any person that criminal force is about to be used. If the offense 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 that the offense punishable under Section 323 falls within the category of offences involving a breach of the peace. Similarly it is provided by this section that a person who is convicted on a charge under Section 504 of the Indian Penal Code is liable to be bound over; that is the offense of criminal intimidation, in other words, the offense of provoking a person to use criminal force.
6. It has been held by this Court that offences under Sections 323 and 325 are offences involving a breach of the peace and that where persons are convicted under either of these Sections of the Indian Penal Code, they may be bound over to keep the peace under Section 106, Criminal Procedure Code.
7. The only other question is that of sentence. Bearing in mind that 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. It is quite obvious that they committed a serious assault on the complainant and his son.
8. The result is that the application for revision is dismissed.
9. The accused who are out on bail must surrender to their bail and serve out the unexpired portion of their sentences.