Report No. 37
281. Section 106 and the words "offence involving breach of the peace".-
The words "or other offence involving a breach of the same" in section 106 have given rise to conflicting interpretations1 The views expressed in the decisions on the subject can be broadly grouped as follows:-2
(a) The word "involve" connotes the inclusion, not only of a necessary, but also of a probable feature, circumstance, antecedent condition or consequence.3 If the offence is such an offence that it is, as a matter of experience, often followed by breaches of the peace, and if the evidence shows that the accused would have accomplished their object by breach of the peace, it is enough.
Thus, an offence such as the removal of a landmark under section 434, Indian Penal Code is often followed by serious riots, and, therefore, where the evidence shows that the accused were prepared to commit the act of removal by breach of peace (and was prevented from doing so only because the other side ran away), the offence falls within the words "involving a breach of the peace.3
Same is the position regarding criminal trespass,4 where there is an intention to commit a breach of the peace.
(b) Not only are offences in which breach of the peace is an essential ingredient included, but also offences in which an evident intention to commit a breach of the peace is expressly found.5-6
(c) Breach of the peace must be an ingredient of the offence.6-9
Thus, acts of immorality in seducing married women may provoke or lead to a breach of the peace, but they do not "involve" a breach of peace.10
In an earlier Madras case,11 White C.J. had raised query as to whether, where a breach of the peace had been in fact committed, an order could be passed though the offence did not "involve a breach of peace".
(Compare the language of section 522-an offence attended by criminal force).
For a slightly wider view, the under-mentioned case12 may be seen. In that case, the High Court observed13 that the words "breach of the peace" are the anti-thesis of the other set of words "keeping the peace". The words "keeping the peace" connote preservation of the public peace, and are the direct opposite of the words "breaking the peace". Therefore, the court has to examine whether the offence brought home to the individual necessarily includes or implies breach of the peace or constitutes or amounts to a breach of the peace. If it does, the section applies. Then followed an elaboration of the section, in these words:
"Is it intended by the section that each of the offences described in the Indian Penal Code should fall under the category of either "offences involving a breach of the peace" or offences of the opposite description. I do not think either is desirable or possible. The facts constituting an offence must be looked at for determining whether the offence comes within the section or not. The present case is in point and strikingly illustrates what I mean. Wrongful confinement per se is not an offence involving a breach, of the peace.
If, for example, a person happens to be in a room in his own-house and another by locking the room on the outside, confines the person within the room and makes egress impossible, all the elements necessary for constituting the offence of wrongful confinement are present. But this involves no breach of the peace but on the contrary if, as has happened in the present case, the offenders in a coconut garden using violence seize another and tie his hand, I am clearly of the opinion that the offence as proved does involve a breach of the peace."
(e) The expression "offences involving a breach of the peace" covers two classes of cases-The first class is where a breach of the peace in fact has occurred. The other case is where the definition of the defence involves a breach of the peace, as in one of the two classes of cases under section 504, Indian Penal Code.14
1. The various views are criticised in King v. Maung Kyi Nyo, AIR 1940 Rang 50.
2. The earlier cases are collected in Note "Criminal Cases of 1903", (1904) 8 CWN Warrants, pp. 141, 143, 153 and in the Editorial note 8 CWN (Journal, 210).
3. Emp. v. Manik Rai, 1911 ILR 33 All 771 (772) (Knox J.).
4. Dharam Raj, 1920 ILR 2 All 345.
5. Abdul Gaful v. Mad. Mirza, ILR 59 Cal 659: AIR 1931 Cal 645 (DB) (Reviews cases).
6. Asoka v. Emp., AIR 1930 Cal 802.
7. Anukul Saha, AIR 1939 Cal 484 (DB).
8. Abdulla v. Crown, ILR 2 Lah 279: AIR 1921 Lah 98.
9. Mithiah Chetty, 1905 ILR 29 Mad 190 (section 143, Indian Penal Code).
10. Arun Samanta, 1903 ILR 30 Cal 366 (368) (Prinsep and Mitra JJ.) (Case under section 110).
11. Kannokaran v. Emp., 1902 ILR 26 Mad 469.
12. Kuppa Reddiar (in re:), 1924 ILR 47 Mad 846: AIR 1924 Mad 808.
13. Kuppa Reddiar (in re:), AIR 1924 Mad 808 (809) (Venkatasubha Rao J.).
14. Emp. v. Yacoob Sayed, 1918 ILR 43 Bom 554: AIR 1919 Bom 150 (Heaton J.).
282. An amendment of section 106 is proposed to settle the law on the point, so as to replace the words "involving a breach of peace" by a different phraseology.
283. Section 106(3) and Sessions Judges.-
The question whether the Sessions Judge should also be added in section 106(3)-which refers to the High Court exercising the "powers of revision", can be considered after the question of revisional powers of the Sessions Judge is considered.1
1. Amendment of section 106(3) to be considered when section 435 is considered.
284. Section 106 and Magistrates empowered.-
It has been suggested,1 that the power under section 106 should be given to Second Class Magistrates (particularly for riot cases). We are unable to agree. The maximum period of security under section 106 is 3 years, and, for that reason, it is better that the power is confined to Magistrates of the highest class.
1. F. 27(3)/55-Judl. II (Ministry of Home Affairs File) Appendix I, Item No. 18.
285. Sections 106 and 110-maximum period.-
With reference to sections 106 and 110, it has been suggested1 that the maximum period for binding down persons to be of good behaviour under sections 106 and 110 should be reduced from three to two years.
The reason given in support of this suggestion is, that the period of three years was "too long and often caused harassment to citizens who may have had the misfortune of having incurred the displeasure of the police". If a person does not change his ways within two years, there are (it is stated), other methods of dealing with him.
We have considered the suggestion carefully. But we may point out, that security for the period of three years can be demanded only after confirmation by the Sessions Judge, who has to go into the case on the merits.2 This safeguard being there, we do not regard the suggested change as necessary.
1. F. 3(2)/55-L.C., Pt. VII, S. No. 449, Suggestion of the U.P. Committee for Investigation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report, p. 42 Bill at pp. 225-226.
2. Sections 123(2) and 123(3).
286. Sections 107 to 110-Retention of (general question).-
Sections 107 to 110 deal with preventive action. They are vitally connected with the preservation of the public peace and the maintenance of law and order. This is the first duty of every State. The duty cannot be effectively carried out without some provisions designed to give sufficient powers. Some safeguards are needed no doubt, and the law provides for them. However, omission of these sections appears to be out of question.
287. Section 107.-
The power under section 107 should be given to Executive Magistrates, being concerned with the maintenance of law and order.1 The power may be assigned to-
(i) Presidency Magistrates specially empowered by the State Government in this behalf (Cf. the Bombay amendment);
(ii) District Magistrates and Sub-divisional Magistrates (see the existing section);
(iii) Executive Magistrates of the first class (Cf. the Punjab amendment).
1. As to subsequent proceedings, see discussion relating to section 117.
288. Section 107(1) and suggestion of a High Court judge.-
With reference to section 107(1), the following suggestion.1 has been made by a High Court Judge.
"Sections 107-110 relate to security for keeping peace. The words "is informed" occurring in section 107(1) lead to the presumption that the information may be lodged by private persons. It may be made clear by necessary amendment, that these sections should be confined to cases where information is lodged by the police (and not by private persons) that a breach of peace is apprehended."
1. F. 3(2)/55-L.C., Pt. III, S. No. 49(q).
289. We examined the existing law on the subject.
As the law stands at present, the Magistrate can draw up proceedings-
(a) on a police report,1
(b) on a report of a subordinate Magistrate,2
(c) information given by a private individual.
(d) on private petition;3
(e) information gathered from a previous trial.4
It may be noted, that under section 106, even the orders of the High Court in revision are sufficient.5
1. Laxmi Narain v. Emp., AIR 1932 Alt 670.
2. R. v. Jarappa, (1871) 8 BHCR Cr 162 (163).
3. Sanjivi v. Koneri, AIR 1926 Mad 521 (524).
4. K.E. v. Gobardhan, AIR 1922 Oudh 273.
5. Emp. v. Muhammad, 1881 ILR 3 All 545 (548, 553).
290. The sine qua non for the institution of a proceeding under section 107 is, that the Magistrate shall be of opinion that there is sufficient ground for proceeding.1
We are, with great respect, unable to recommend an amendment on the lines suggested. There may be cases where the Magistrate may have to act on information from sources other than the police.
1. Deoballam v. Gorakhanath, 48 Cr LJ 703 (704) (Pat) (Agarwala J.).