1. This rule was issued upon the District Magistrate of Howrah and on the petitioners to show cause why the convictions of the petitioners and sentences passed on them under Section 452, I.P.C., and an order made under Section 106, Criminal P.C., should not be set aside. Mr. Noad for the petitioners does not now seriously challenge the conviction under Section 452, His point is that the order under Section 106 should be set aside. It would appear that in the lower Court the petitioners were convicted of rioting. The order under Section 106 was passed upon a petition made by the Court Sub-Inspector requesting that if the petitioners were convicted of rioting, they should be bound down under Section 106. In the Court of appeal the conviction under Section 147 was set aside. The learned Judge however held that an order under Section 106 might follow a conviction under Section 452 and added that in his opinion the present case was an appropriate one for making such an order. The learned Judge has however demolished the ground upon which the Court of first instance passed the original order, that is to say the conviction for rioting, and has given no reason why once that conviction has been abolished any such order should be made.
2. We may also say that as at present advised we are not entirely satisfied as to the correctness of the view taken by the learned Judge when he states that an order under Section 106 might follow a conviction under Section 452. In any event we hold that the present case is not one in which any such order could be justified. In the result, the order made against the petitioners under Section 106, Criminal P.C., is set aside and the rule made absolute to that extent.
3. I agree.