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Ramaswami thevan and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in72Ind.Cas.615
AppellantRamaswami thevan and anr.
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), section 106(2) - penal code (act xlv of 1860), section 323--order requiring security on conviction--finding as to breach of peace whether necessary--'other offence involving breach of the peace,' meaning of. - .....involve a breach of the peace; (2) that there ought to be a finding by the sessions judge that a breach of peace was actually caused, before the court made the order this section.2. on the first joint, i find that accused's act included an assault on the prosecution 9th witness in a public palce, and assault is one of the offences specified in section 106. the expression 'other offences involving a breach of the peace' would embrace offences ejusdem generic with the offence of assault and finding which are specified in the section. it is only because the accused's act was more serious than one of petty assault that they were not convicted of that minor offence.3. but the circumstances spoken to by the witnesses as those in which hurt was caused to prosecution 9th witness were such that.....
Judgment:

Spencer, J.

1. The only question argued at the hearing of this is, whether the order under Section 106, Criminal Procedure Code, requiring the accused to give security to keep the peace is a legal order. It is argued (1) that the offence of voluntarily causing hurt (Section 323, Indian Penal Code) is not one of those specified in Section 106, Criminal Procedure Code, and does not of itself necessarily involve a breach of the peace; (2) that there ought to be a finding by the Sessions Judge that a breach of peace was actually caused, before the Court made the order this section.

2. On the first joint, I find that accused's act included an assault on the prosecution 9th witness in a public palce, and assault is one of the offences specified in Section 106. The expression 'other offences involving a breach of the peace' would embrace offences ejusdem generic with the offence of assault and finding which are specified in the section. It is only because the accused's act was more serious than one of petty assault that they were not convicted of that minor offence.

3. But the circumstances spoken to by the witnesses as those in which hurt was caused to prosecution 9th witness were such that there can be no doubt that there was a breach of the peace on that occasion.

4. On the second point, I do not think it is necessary that the lower Court should record a finding that a breach of the peace, was involved in order to invest itself with power to make an older under Section 105(1), Criminal Procedure Code.

5. If the offence of which the accused were convicted was one which did rot itself necessarily involve a breach of tie peace such as criminal trespass, mischief, or unlawful assembly, it would be proper that the Magistrate or Judge should in his order make it clear that a breach of the peace was committed.

6. But the section does not require such a finding to be recorded, and when the offence of which the accused is convicted is one which implies the use of violence, it would be superfluous to say more. The Judge has recorded his opinion that it is necessary in this case to require the convicted persons to execute a bond for keeping the peace, and that is all that the section in terms demands.

7. The order will, therefore, stand. The appeal is dismissed.


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