Prinsep and Stanley, JJ.
1. The petitioner has been convicted under Sections 143 and 379 of the Indian Penal Code of being a member of an unlawful assembly and of theft, and in addition to the sentences passed he has been required under Section 106 of the Code of Criminal Procedure to give security to keep the peace. A rule has been granted on his application to consider the conviction and sentence for theft and the order under Section 106 of the Code of Criminal Procedure.
2. The complainant and the petitioner have for some time past been disputing regarding the right to the properties which have formed the subject-matter of the theft, and various orders have been obtained from the Civil Courts on this subject. But it is clear that when the act found to constitute the offence of theft was committed no order had been obtained against the petitioner. His act cannot therefore be regarded as a dishonest act within the terms of the Penal Code so as to constitute the offence of theft. Mr. Jackson, who shows cause against the rule, informed us that he was not prepared to maintain this order.
3. But though the petitioner has been convicted under Section 379 as well as under Section 143 of the Penal Code, only one sentence of fine has been passed on him, so that if the conviction under Section 143 be maintained there is no reason for interfering with that sentence, which is appropriate under Section 143. The acts found, both by the Magistrate and by the Appellate Court to have been committed by the petitioner, amply establish the conviction under Section 143 of the Penal Code, and we accordingly decline to interfere with the sentence.
4. The question next arises whether the order under Section 106 of the Code of Criminal Procedure requiring the petitioner to give security to keep the peace is a valid order.
5. That section enables certain specified Courts, after convicting a person of any of certain offences, to pass an order summarily binding him over to keep the peace. Amongst those offences an offence under Section 143 of the Penal Code does not appear. But it is contended that it is included amongst the offences specified in the section in general terms. Section 106 of the Code of 1898 runs thus: 'Whenever any person accused of rioting, assault or other offences involving a breach of the peace or of abetting the same or of assembling armed men or taking other unlawful measures with the evident intention of committing the same is convicted, &c.;' The terms of Section 106 of the Code of 1898 are the same as those of Section 106 of the Code of 1882, with the exception of the words 'involving a breach of the peace.'
6. Now, being a member of an unlawful assembly does not necessarily evolve a breach of the peace; the members may abstain from proceeding to such lengths. It does, however, involve an apprehension that a breach of the peace may result. Nor does a conviction of an offence under Section 143 of being a member of an unlawful assembly necessarily amount to a conviction of 'taking unlawful measures with the evident intention of committing' a breach of the peace. In order to bring the acts of the accused within either of these terms it is necessary that the Magistrate should expressly find that the acts of the person convicted amount to this, or at all events that the evidence is so clear that without such an express finding a superior Court, such as a Court of Revision, should be satisfied that the acts do involve a breach of the peace or an evident intention of committing the same. In the case before us we are not satisfied that this is established, and we cannot assume that the Magistrate found that this was established. The summary order requiring security to keep the peace must therefore be set aside.