JUDGMENT 1. This is a reference, under sec 338, Cr. P. C, by the Sessions Judge of Nadia, who invites us to set aside an order passed by the District Magistrate of Nadia, directing, under sec. 106 I. L. R. 21 Cal. 622 (1894) of the Code of Criminal Procedure, a person, named Momim Malita, to execute a bond for Rs 100, with one surety of Rs. 100, to keep the peace for two years. The learned Sessions Judge points out that Momim Malita was convicted by the Sub-Deputy Magistrate of Kushtia (a second class Magistrate) under sec. 323, I. P. C, and sentenced to a fine of Rs. 25; that he appealed to the District Magistrate, who dismissed his appeal, and passed the above order, under sec 106, Cr. P. C, binding him down to keep the peace. He further points out that as the order convicting the said Momim Malita, under sec. 323, I. P. C, was passed by a Sub-Deputy Magistrate with 2nd class powers, such a Magistrate had no power to pass any order under sec. 106, Cr. P. C, and, therefore, he contends that a District Magistrate hearing an appeal from an order of such Magistrate, cannot pass such an order. In support of this view, he cited the cases of Muthiah Ghetti v. Emperor I. L. R. 29 Mad. 190 (1905) and Paramasiva v. Emperor I. L. R. 30 Mad. 48 (1906). 2. The learned District Magistrate shows cause; and, according to his view, a District Magistrate has power to pass such an order in appeal from the decision of any Magistrate. In other words, he thinks that any Appellate Court can, under sub-sec. 3, sec 106, Cr. P. C, pass an order without any restriction as to the powers of the Court against whose order the appeal is made. 3. We do not think that this view is right. According to the rulings cited by the Sessions Judge, an Appellate Court cannot exercise the power given by see. 106, Cr. P. C, when the accused has not been convicted by a Court such as is referred to in sub-sec. I. L. R. 29 Mad. 190 (1905) And we may also refer to the case of Mahmudi Sheikh v. Aji Sheikh I. L. R. 21 Cal. 622 (1894) in support of this view. 106, Cr. P. C, when the accused has not been convicted by a Court such as is referred to in sub-sec. I. L. R. 29 Mad. 190 (1905) And we may also refer to the case of Mahmudi Sheikh v. Aji Sheikh I. L. R. 21 Cal. 622 (1894) in support of this view. We therefore set aside the order of the District Magistrate, dated the 30th November 1907, directing under sec. 106 (3), Cr. P. C, the said Momim Malita to execute a bond for Rs. 100 to keep the peace for two years.