Full Judgment
Walsh, J.
1. In this case the Government are applying in revision for enhancement of sentence. We think it, therefore, necessary, if not desirable, to state with some care and particularity our reasons for rejecting the application. If the result of our doing so is to give the case an appearance of greater importance than it deserves, that is the fault of the Government for applying in revision. Speaking in broad terms the case arose in this way. It was Holi and at that time a lot of loosely disposed people indulge, more by tradition and custom than by actual desire to be disorderly or unpleasant, in songs of a low character and generally in performances of a more or less suggestive and loose description. If this were a perfect world, they would all recognize that even although they were tempted to indulge themselves in this way, it; was their first duty to avoid giving offence or annoyance to other people. As a matter of fact, as the Government advocate rightly says, they frequently give annoyance to the hotter thinking, class of their own community. On such an occasion it would certainly be desirable that the Mahommedans should keep out of the revellers' way, and that the revellers should avoid going down a road where there is a mosque. But it is not a perfect world and it looks at present as if it will be a long time before it becomes one; and in this particular village there was a long standing enmity between the two communities. In that kind of calm which seems to precede every storm, both sides anticipated and to some extent made preparation for the possibility of unpleasantness. As the result of that the Mahommedans gathered in unusual numbers at the mosque. That seems to have been a reason why the Hindus should have kept away altogether, but probably it had exactly the opposite effect and obscene singing and what the Magistrate calls, foul language, was indulged in, in front of the mosque, with the result that a fight took place. The result of the fight was fortunately slight. Three things, therefore, stand out upon the facts which give this case a special character favourable to the accused. It was Holi, the Mahomedans were provoked, and the injuries which they inflicted were slight.
2. Both Courts have treated the matter, so far as the facts are concerned, in very satisfactory judgments. It so happens that a Hindu gentleman was the Magistrate who tried the first case and he may be said to have taken perhaps a rather too severe view of the offence. It so happens that the Sessions Judge who is a Judge of experience and reputation, was a Mahomedan and possibly also as a pure coincidence he took what may appear to some people, a too lenient view of the offence. But the case is one, and was always one, which had to be dealt with on its own merits and its own special circumstances, and cannot for one moment be regarded, on either one side or the other, as a precedent for other Courts in other cases, or as raising any broad question of principle. Nobody is going to suggest that this Court has not the power to enhance sentences in revision, and if a Judge in giving a lenient sentence, were not to base it not upon the special circumstances, but foolishly to enunciate a principle that he for one and for reasons recognized by the law, declined to regard these cases as anything but trivial and considered that they ought to be disposed of by no more than a fine, he would be rightly regarded as laying down very dangerous and questionable propositions, and in such a case one can understand that Government might desire to correct him and to obtain from the High Court some pronouncement reviewing and revising such dangerous propositions. There is nothing of that kind in this case, and generally speaking it is correct to say that the object of this revisional legislation was to confer upon superior criminal Courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand, in some undeserved hardship to individuals. Nobody can suggest that about this case. Indeed it is just one of those cases where to use the old expression, it is better to 'let sleeping dogs lie' and a mere stirring up of the question again six months afterwards is calculated to do more harm than good. It is impossible to lay down a general rule, beyond saying that what we think it would be better, even in cases of communal disturbance, if Government were to refrain from appealing to the revisional jurisdiction of this Court, unless they feel that violence has been done to some general principle which requires immediate and authoritative interference. We do not think that anything of that kind exists in this case which is one, no doubt as many others, of its own peculiarity and we dismiss the application.