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Kinoo Sheikh Vs. Darastullah Mollah - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal393
AppellantKinoo Sheikh
RespondentDarastullah Mollah
Excerpt:
security for keeping the peace - order--omission of express finding as to commission of offence within the section--illegality--jurisdiction--criminal procedure code (act v of 1898) sections 106 and 423--penal code (act xlv of 1860) section 379. - .....the petitioner of theft in cutting and carrying away crops belonging to the complainant. the district magistrate, on appeal, expresses himself thusthe lower court decides rightly on the oral evidence that the complainant was in possession. i agree with his finding and support the conviction. the appeal is dismissed.2. from this we understand that the appellate court considers that the petitioner has been properly convicted and sentenced for theft. but the magistrate on appeal thought proper to add to his judgment an order under section 106 of the code of criminal procedure, binding over the petitioner to keep the peace. he is not competent to do so except on an express finding that the petitioner has committed an offence within the terms of section 106; and inasmuch as there is no.....
Judgment:

Prinsep and Stephen, JJ.

1. The Subordinate Magistrate convicted the petitioner of theft in cutting and carrying away crops belonging to the complainant. The District Magistrate, on appeal, expresses himself thus

The Lower Court decides rightly on the oral evidence that the complainant was in possession. I agree with his finding and support the conviction. The appeal is dismissed.

2. From this we understand that the Appellate Court considers that the petitioner has been properly convicted and sentenced for theft. But the Magistrate on appeal thought proper to add to his judgment an order under Section 106 of the Code of Criminal Procedure, binding over the petitioner to keep the peace. He is not competent to do so except on an express finding that the petitioner has committed an offence within the terms of Section 106; and inasmuch as there is no such express finding by him, but he merely affirms the conviction of theft passed by the Court of first instance, his order under Section 106 is in our opinion without jurisdiction. It must therefore be set aside. We observe that in his explanation the District Magistrate attempts to justifying order on the ground that the record of the case shows that there was an unlawful assembly and a danger of a breach of the peace. There may be evidence on this point, but that evidence has not been accepted by either of the Courts, and therefore there is no justification for an order under Section 106.


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