JUDGMENT

Broadway, J. - The petitioners in this case, Mohammd Afzal and Shera, have applied, under Section 439, Criminal Procedure Code, for revision of an appellate decision of the Additional Sessions Judge of Ferozepore, dated 23rd February 1922. They have been convicted of an offence under Section 342, Indian Penal Code, and sentenced to eight months' rigorous imprisonment and Rs. 50 fine or in default to two months' rigorous imprisonment. In addition they have bean called upon under Section 106, Criminal Procedure Code, to furnish security in a sum of Rs. 500 to keep the peace for one year on the expiry of their sentences.

2. Mr. Iftikhar Ali on behalf of the petitioners has raised two points; (l) that the evidence did not warrant the conviction and (2) that the order under Section 106, Criminal Procedure Code, is bad in law. I have carefully studied the judgments of the two Courts. As remarked by Rossignol, J., in his admitting order, the judgment of the appellate Court is not satisfactory. At the same time that of the First Court is comprehensive and clear, and I assume that it is because of that that the learned Additional Sessions Judge contented himself with dealing with the points raised as briefly as he has. I have also examined such of the evidence as was necessary in order to ascertain how far the learned Vakil's contentions were correct. After giving my careful consideration to the case I have no doubt in my mind that the Courts below are right in thinking that the petitioners have committed an offence under Section 342, Indian Penal Code, and I consider that the sentences are appropriate.

3. The applicability of Section 106, Criminal Procedure Code, is, however, of considerable doubt. It has been held by the various High Courts that Section 106, Criminal Procedure Code, can only be applied when the person concerned has been convicted of an offence involving a breach of the peace. It has been held that in such cases the offence must be one of which a breach of the peace is in law a necessary ingredient (see the cases cited at page 107 of Boy's Criminal Procedure Code, Volume II). In Abdulla v. Emperor (1921) 2 Lah. 79 the same view was adopted by Martineau, J. In Section 339 wrongful restraint is defined as follows:

Whoever voluntarily obstructs any person, so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.

4. While wrongful confinement is defined in Section 340 in the following terms:

Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said 'wrongfully to confine' that person.

5. Although the matter is not quite clear it seems to me that it cannot be said that a breach of the peace is necessarily involved in the commission of the offence of wrongful confinement and, therefore, the order in this case under Section 106, Criminal Procedure Code, must be regarded as illegal.

6. I, therefore, accept this petition in so far as to set aside the order under Section 106, Criminal Procedure Code, but maintain the conviction and sentences in all other respects.