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Abdul Ali Choudhury and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.961
AppellantAbdul Ali Choudhury and ors.
RespondentEmperor
Cases ReferredJib Lal Gir v. Jogmohan Gir
Excerpt:
criminal procedure code (act v of 1898), section 106, order under, findings necessary for - high court, jurisdiction of--revision--penal code (act xlv of 1860), section 143. - .....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 persons convicted amounted 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.' we have already referred to the findings in this case and they do not seem to us to sufficiently and clearly show that the acts for which the accused were convicted under section 143 necessarily involve a breach of the peace or any evident intention of committing the same.2. the rule is, therefore, made absolute and the order.....
Judgment:

1. The accused in this case were convicted under Section 143, Indian Penal Code and bound down under Section 106, Criminal Procedure Code. It has been urged before us that the order under Section 106, Criminal Procedure Code, is without jurisdiction as there was no finding of any likelihood of a breach of the peace being committed or of any evident intention of committing acts which would involve a breach of the peace. The Appellate Court came to no finding upon this point. All that is said in the judgment of the Appellate Court is that the appellants formed with others an unlawful assembly with the common object set forth in the charge. In the lower Court the findings are as follows: 'The common object of this unlawful assembly was by means of criminal force or show of criminal force to take possession of the plot of land cultivated by Syam Bap.' There is a further finding to this effect: 'There can be no doubt that had not Afruz Bakht Chowdhry directed Syam Bap and his other tenants not to resist the accused but to remain quietly in Alphu Moral's bari, there might have been a serious riot as Afruz Bakht is, according to the evidence on the record, the leading zemindar in Aurangpur and must have many men under his control. Obviously the accused persons thought that they had their enemy at their mercy as, if on account of having been bound down under Section 107, Criminal Procedure Code, he decided not to resist their attacks they could do what they liked in seizing land by force, while if he did resist their armed attack by sending a similar body of men and a riot ensued, they would be able to get him mulcted of the amount of Rs. 5,000.' Various decisions have been quoted before us, but it seems to us that the law is succinetly and accurately laid down in Jib Lal Gir v. Jogmohan Gir 26 C. 576, where it is said that being a member of an unlawful assembly does not necessarily involve a breach of the peace. 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 persons convicted amounted 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.' We have already referred to the findings in this case and they do not seem to us to sufficiently and clearly show that the acts for which the accused were convicted under Section 143 necessarily involve a breach of the peace or any evident intention of committing the same.

2. The Rule is, therefore, made absolute and the order under Section 106, Criminal Procedure Code, sat aside.


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