Full Judgment
Sulaiman, J.
1. This is an application in revision. Two main points have been urged strongly. The first one is that inasmuch as there were originally thirteen persons, nine of whom have been acquitted, the conviction of the remaining four under Section 147 of the Indian Penal Code was illegal. As to this I may point out that the learned District Magistrate has gone into the question and has come to the conclusion that there can be no doubt that a very large number of persons had joined in the attack. The only doubt which he felt was as to the identity of most of the thirteen persons named and he had no doubt in his mind that more than five persons had taken part in the beating. The conviction under Section 147 is, therefore, not illegal.
2. The next point urged is that the order under Section 106 of the Code of Criminal Procedure was improper inasmuch as no notice to show cause had been issued to the applicants. On their behalf, it is contended that the proper procedure for the Appellate Court to adopt was to dismiss the appeal and issue notice to the applicants to show cause, and that, after they had an opportunity of showing cause, they could have been bound over under Section 106 la my opinion this procedure would have been altogether ultra vires. Under Section 106 whenever any person accused of rioting, assault, etc., is convicted, the Court (and so also the Appellate Court) may at the time of the passing of the sentence on such persons order him to execute a bond etc. It is clear in my mind that an order under Section 106 must be passed at the same time when there is a conviction and passing of sentence. If it was passed, at a subsequent stage it would have been altogether without jurisdiction. If the Magistrate had decided to start proceedings subsequently, the only procedure open to him would have been that prescribed by Section 107. I do not consider that on the facts the sentence of one month is in any way severe. The application is dismissed.