Banerjee and Hill, JJ.
1. This is a rule calling upon the Magistrate of the district to show cause why the order made in this case under Section 106 of the Code of Criminal Procedure should not be set aside upon the ground that there has been no conviction for any of the offences upon a conviction for which such an order could have been made.
2. The accused has been convicted of the offence of house trespass punishable under Section 448 of the Indian Penal Code, and the intention for committing the trespass, as found in the judgments of the Courts below, was to have illicit intercourse with the complainant's wife. That being so, can it be said that the accused was convicted of any of the offences contemplated by Section 106 of the Code of Criminal Procedure? We are of opinion that the question must be answered in the negative.
3. Mr. P. L. Roy, who appears for the Crown to show cause, contends that a conviction for house trespass may sustain an order under Section 106 of the Code of Criminal Procedure; and in support of this contention he cites the eases of Queen v. Gendoo Khan (1867) 7 W.R.Cr. 14 and Queen v. Jhapoo (1873) 20 W.R.Cr. 37. Those two cases are, however, clearly distinguishable from the present. In both these cases this Court found that the intention of the accused for committing the trespass was to commit a breach of the peace; the trespass, as the facts of the cases showed, having been committed openly by a number of men. Those cases, therefore, well come within the provisions of the law, authorizing security being taken for keeping the peace. In the present case, as we have already observed, the intention of the accused, as found by the Courts below, was only to have illicit intercourse with the complainant's wife.
4. Mr. Boy next contended that the judgment went to show that it was proved that the defendant threatened to beat the complainant, but then there has been no conviction, for any offence of assault or criminal intimidation. In the absence of any such conviction, we do not think that any order under Section 106 of the Code of Criminal Procedure can stand. It is necessary, before an order under Section 106 of the Code of Criminal Procedure can be made, that the party should have an opportunity of answering to an accusation for an offence of the kind, upon a conviction for which such an order can be made. That requirement not having been complied with, the order under Section 106 of the Code of Criminal Procedure cannot stand and must be set aside.