It provides that when a Court of Session or a Court of a First Class Magistrate convicts a person of offences specified below, or of abetting any such offence, and the Court is of the opinion that it is necessary to take security from such a person for keeping the peace, at the time of passing the sentence, the Court may order him to execute a bond, with or without sureties, for keeping the peace, for such period as it thinks fit, not however exceeding a period of three years.
The four offences referred to in S. 106 are:
(a) Any offence punishable under Chapter VIII of the Indian Penal Code, 1860, other than an offence punishable under S. 153A, or S. 153B or S. 154 of that Code;
(b) Any offence which consists of, or includes, assault or using criminal force or committing mischief;
(c) Any offence of criminal intimidation;
(d) Any other offences which may cause, or was intended or known to be likely to cause, a breach of the peace.
If the conviction of such a person is set aside on an appeal or otherwise, the bond executed as above also becomes void.
It may be noted that such an order can also be passed by an Appellate Court or by a Court exercising its power of revision.
The four essential ingredients of S. 106 are:
(i) There must have been a conviction.
(ii) Such a conviction must have been by a Court of Session or of a First Class Magistrate.
(iii) The conviction must have been for one of the offences specified above.
(iv) The Court concerned must be of the opinion that it is necessary to bind over the accused to keep the peace.
This section is intended to keep under control any person who is dangerous to public peace, order and tranquillity. Such a person is dangerous to society, and mere conviction and sentence in his case may not enough.
The liability of the surety is not ñî-extensive with that of the person bound over; rather, it is a separate and independent liability to pay an agreed amount in the event of the other person committing a breach of the peace.
The Calcutta High Court has observed that S. 106 would apply to a case where armed men were assembled with the intention of committing a breach of peace, and an order for beating men was given, although no breach of the peace actually took place. (Srihari,—5 C.W.N. 250)
An order can be made under this section, even if the conviction takes place in a summary trial, provided that the Magistrate has jurisdiction. (Megho,—7 O.C. 338)
It is also to be noted that the order under this section is to be made in the presence of the accused. Therefore, an order made at the instance of the prosecutor, behind the back of the accused, would be bad in law. (Bhaskar,—3 B.H.C.R. 1)
The Madras High Court has held that when there is only one solitary instance of the accused being drunk and disorderly, and there is no evidence to show that the accused is likely to do something similar in the future, an order under S. 106 would not be justified. (Armugha Thevar,—A.I.R. 1943 169)