1. The petitioner in this case has been sentenced to pay a fine of Rs. 25 under Section 504, I.P.C., and further to give security for his good behaviour under Section 106, Criminal P. C. The case against him was briefly that he filthily abused the complainant in such a way that the complainant was likely to lose control of himself and to commit a breach of the peace.
2. The Rule has been granted on grounds Nos. 3, 4 and 5 of the petition to this Court. The first ground urged by Mr. Chatterji is that the general diary entry, Ex. I, is not admissible for the purpose of proving the falsity of the defence case and it cannot legally be used in evidence to disprove the defence and the learned Magistrate was wrong in using the said entry, Ex. I, against the petitioner. As a matter of fact the learned Magistrate has used the general diary entry, Ex. I, for the purpose of corroborating the case of the complainant and showing that the complainant made the same remark then as he does now in Court and that there is no difference in his cases. There is nothing improper in the use that the learned Magistrate has made of the entry.
3. The next ground taken is that the Magistrate's finding with regard to the motive of the petitioner is wholly erroneous and the learned Magistrate acted under a misapprehension in proceeding upon the basis that the petitioner had filed his application for removal of Sashi Babu from the common managership before 1st November 1928. It does appear that as a matter of fact this application was not filed before 1st November 1929. Even however if the Magistrate was wrong on this question of motive, there still remains the positive evidence of witnesses that abusive language was used; the question of probability or improbability of the petitioner's losing temper at the sight of the complainant is not really so material when we have positive evidence that he had actually used the abusive language.
4. The last ground taken by Mr. Chatterji has more substance in it, namely that the order under S 106, Criminal P. C, passed in the present case is bad in law. Mr. Chatterji argues that a breach of the peace is not a necessary ingredient of an offence under Section 504, I.P.C. The only portion of Section 106, Criminal P.C., under which the present offence could come is 'other offence involving a breach of the peace,' and Section 504, I.P.C, does not necessarily involve a breach of the peace. I think this contention is correct. There is no doubt that the decision in the case of Emperor v. Syed Yacoob  43 Bom. 554 supports the case of the opposite party as also the decision in the case of Emperor v. Manik Rai  33 All. 771. These words 'offence involving a breach of the peace' were considered and construed in the case of Arun Samanta v. Emperor  30 Cal. 366 where it was held that the expression 'offences involving a breach of the peace' means offences in which a breach of the peace is an ingredient and not offences provoking or likely to lead to a breach of one peace. No doubt the learned Judges in that decision were considering the meaning of the words 'offences involving a breach of the peace' as used in Section 110, Criminal P.C., Clause (e). But I see no reason why any different meaning should be placed on identically the same words in Section 106, Criminal P.C. to what has been placed upon them in Section 110, Clause (e), Criminal P.C. The order therefore binding over the petitioner is apparently bad in law and must be set aside. It is accordingly set aside and with this modification the Rule is discharged.