Full Judgment
Piggott, J.
1. The question in this case is as to the propriety of an order under Section 106 of the Code of Criminal Procedure binding over Dharamraj and three other persons to keep the peace, the said order following a conviction recorded under Section 452 of the Indian Penal Code. The offence in question is one of aggravated house-trespass; the particular aggravation need not be considered. The question is, what was the nature of the house-trespass of which these applicants were found guilty? The finding is that they came with lathis prepared to assault Rai Singh, Ziladar of the Court of Wards, that Dharamraj aimed a blow at the Ziladar which was caught by the thatch of the house, that the Ziladar then took refuge inside his house and closed the doors, but the four applicants pushed the door open and assaulted the Ziladar inside his own house. It follows that the criminal trespass of which these men have been convicted is the entry of a house with intent to commit the offence of causing hurt. The conviction is, therefore, one of an offence a necessary ingredient of which is a breach of the peace, I have been referred to a good deal of case-law on the subject, but the ease most directly in point is an old one, that of the Queen v. Jhapoo 20 W.R. Cr. 37 I have no doubt that upon a conviction of criminal trespass, where the intention of the trespass is to commit a breach of the peace, an order under Section 106, Criminal Procedure Code, may lawfully be passed in the discretion of the Magistrate. This point is made all the dearer by a consideration of the case of Empress v. Kundan Singh A.W.N. (1885) 303 in which an order under Section 106, Criminal Procedure Code, was quashed on the ground that the criminal trespass of which the accused person had in that case been convicted was trespass on an empty house. It is unnecessary, therefore, for me to consider the somewhat larger question raised by the decision of this Court in Emperor v. Manik Rai 11 Ind. Cas. 589 : 33 A. 771 : 12 Cr. L.J. 405 : 8 A.L.J. 925 in which an interpretation was put on the words 'involving a breach of the peace' in the section in question considerably wider than any which is necessary for the disposal of the present application.
2. One other point has been taken on behalf of the applicants. It is said that they acted in the heat of passion, under provocation afforded by an insult addressed to Dharamraj and Bam Das by the complainant Rai Singh, and that it is quite unlikely that they should ever feel disposed to repeat their offence. As I have found the order in question to be within the jurisdiction and discretion of the trying Magistrate, I should in any case be reluctant to interfere upon a mere question of discretion. In the present case, however, I do not think it can be said that an order which affords the Ziladar protection in his future dealings with these men is on the face of it such an improper exercise, of discretion as to invite interference in revision by this Court. I dismiss this application.