M.C. Chagla, C.J.
1. This is an application in revision by the accused who was tried with a jury by Mr. Justice Weston on the Original Criminal Side of this Court. The accused was charged under Section 307 of the Indian Penal Code in that he attempted to commit murder of his father and brother by firing a gun at them. The jury brought in a verdict of not guilty under Section 307, and the learned Judge acquitted and discharged the accused under that section. But the jury brought in a unanimous verdict of guilty under Section 286 of the Indian Penal Code. The learned Judge convict-ed him under that section, and sentenced him to six months' rigorous imprisonment. It is from this conviction and sentence that this revisional application has been preferred.
2. The Government Pleader, in the first instance, contends that no criminal revision lies from an order of conviction and sentence passed by the High Court in Sessions. Now, it is to be borne in mind that, till the Criminal Procedure Code was recently amended, no appeal lay from a conviction on a trial held by a High Court in the exercise of its original criminal jurisdiction. It was only under Act XXVI of 1943 that the right of appeal was given to a convicted person to appeal to the High Court from a conviction and sentence in a trial held by the High Court.
3. The revisional powers of the High Court are exercisable in relation to criminal Courts inferior to the High Court, and the Government Pleader has argued that the High Court, when it is exercising its original criminal jurisdiction, is not a Court subordinate to the High Court on its appellate side. The Government Pleader says that both the Courts are the High Courts ; they are only different divisions of the High Court, and it would be wrong to say that one division of the High Court is an inferior criminal Court to another. The Government Pleader relies on Section 6 of the Criminal Procedure Code, which defines the different classes of criminal Courts, and that section provides that besides the High Courts there are five classes of criminal Courts, and therefore that section contemplates that the High Court itself is a criminal Court like the other Courts which are enumerated in that section.
4. Now, it is perfectly true that the High Court acting in its original criminal jurisdiction is not a Court subordinate to the appellate side of the High Court. But. the expression used in Section 435 is not 'subordinate', but 'inferior'. 'Inferior' does not carry with it any stigma or any suggestion that the Court is under the administrative orders of the superior Court. In our opinion, inferior criminal Court only-means judicially inferior to the High Court. Now, if one turns to Section 6, the first class of criminal Courts are Courts of Session, and Courts of Session are undoubtedly judicially inferior to the High Court. The result of amendment by Act XXVI of 1943 is really to put the High Court acting in its original criminal jurisdiction practically in the same category as the Court of Session, or, perhaps a different, criminal Court was constituted, which was the High Court acting in its original criminal jurisdiction, and an appeal was permitted from that Court to the High Court, just as appeals are permitted from the different Courts enumerated in Section 6 of the Code of Criminal Procedure. A Court is inferior to another Court, when an appeal lies from the former to the latter, and same is the view taken of this expression by the Calcutta High Court in Nobin Kristo Mookerjee v. Russick Lall Laha I.L.R. (1884) Cal. 268, where the bench consisting of Mr. Justice Mc-Donell and Mr. Justice Field held that 'inferior Criminal Court' must be construed to mean 'judicially inferior', that is, a Court over which the Court or Magistrate proceeding under Section 435 of the Code has appellate jurisdiction.
5. We, therefore, hold that an application in revision lies from an order made by a Judge presiding over the Sessions in the High Court. In this case no appeal could be preferred, because under Section 413 of the Code no appeal lies in cases where the High Court passes a sentence of imprisonment not exceeding six months or a fine not exceeding two hundred rupees only.
6. The objection taken by Mr. Amin to the conviction is that the learned Judge was wrong in directing the jury to bring in a verdict under Section 286 without framing a proper charge. Now, what happened was this. The learned Judge at the end of the trial asked counsel for the defence to consider whether, assuming the accused was not guilty of attempt to murder inasmuch as he did not deliberately fire the gun at his father and brother, and merely fired the gun in order to frighten them, he would not be guilty under Section 286 of the Indian Penal Code. Apparently, therefore, the learned Counsel for the accused was asked to address the jury on that aspect of the case. Then, in his summing up the learned Judge put before the jury very fairly the two alternatives. The learned Judge pointed out that, in the first instance, the jury had to be satisfied that it was the accused who fired the gun; then the jury had to consider whether the gun was fired deliberately at his brother and his father; if they came to that conclusion, then the accused would be guilty under Section 307. If, on the other hand, the jury took the view that, although the accused fired the gun, he did not fire deliberately in order to kill his father and brother, then the jury must consider the other aspect of the ease. He drew the attention of the jury that the gun was fired in a narrow passage of a small building with rooms on both sides of which the doors were possibly open, and he asked the jury to consider whether a man firing a gun in a place like that would be considered to be doing a rash and negligent act likely to endanger life, and if they took that view, then they should bring in a verdict under Section 286. The jury having considered the learned Judge's summing up as we have pointed out, acquitted the accused under Section 307, and brought in a verdict of guilty under Section 286. In other words, the jury took the view that the accused did fire the gun, but that he did not fire deliberately, but he fired under such circumstances that it constituted a rash and negligent act.
7. Now, Mr. Amin says that, if a charge had been framed, the cross-examination of the prosecution witnesses would have been directed to that point, and the whole aspect of the defence would have been different. Now, as we have pointed out, the defence of the accused was that he did not fire the gun at all. The place where the gun was fired was before the jury, and evidence was led as to the nature of the place. A plan was put in, and the whole question was whether if the accused had fired the gun he had fired it under the circumstances which would be considered rash and negligent, there being no doubt as to the place where the gun had been fired. It is difficult to see how it is possible to contend, if the accused did fire the gun, and he fired the gun in that particular spot, it could be anything but a rash and negligent act. We can understand the defence which was taken that the accused did not fire the gun. We can understand the defence that it was not fired deliberately to kill either the father or the brother. But we cannot see how a defence which is now suggested could ever have been contemplated that, although he fired a gun in a narrow passage in a small building, his doing that act did not amount to a rash and negligent act. Perhaps, it would have been better if the learned Judge had framed an alternative charge before he left the matter to the jury; but, in our opinion, the non-framing of the charge has not led to any prejudice as far as the accused is concerned, and has certainly not led to the miscarriage of justice.
8. We might advert to one other point that has been urged by Mr. Amin. According to him, if you fire a gun, you are not using an explosive substance, because apprarently a gun does not explode, but nobody suggests that it is the using of the gun as such which constitutes the gravamen of the charge. The explosive sub-stance is the cartridge used in the gun which explodes, and the charge is that the accused used a cartridge, being an explosive substance, by putting it in the gun and firing it, thereby constituting a rash and negligent Act. If he had fired a gun which was not loaded and which did not contain any cartridge, undoubtedly Section 286 would not apply.
9. Our attention has been drawn to a case in Kasiya Pilliai (1886) 1 Weir 235 where the Madras High Court took the view that if a man fired a loaded gun that would not attract the application of Section 286. With very great respect, we are unable to agree with that decision, the more so as no reason is given why using a loaded gun does not amount to the using of an explosive substance.
10. Finally, Mr. Amin has urged upon us the question of sentence. Under Section 286 the maximum sentence that the learned Judge could have awarded was six months' rigorous imprisonment, and he has awarded that sentence. Yet we feel that the jury has really taken a very lenient view of the case, and have chosen to bring in a verdict under Section 286 rather than under Section 307. Considering the fact that the weapon was used in a narrow passage in a small building where people were living in rooms on either side of the passage, considering the fact that he did this to frighten his brother and father, because there was some litigation between them and their relations were strained, we do not think that any case is made out why we should interfere with the sentence passed by the learned Judge.
11. The result is that the application must fail. Rule is discharged.