Norman Macleod, Kt., C.J.
1. The accused was charged under Section 279, Indian Penal Code, with having driven a motor car No. 7559 in such a rash and negligent manner as to endanger human life, having collided with Victoria No. 1 and damaged it. The Magistrate found the accused guilty and sentenced him to two months' rigorous imprisonment and also directed his license to be suspended for twelve months. We are asked to interfere in revision. It is impossible to say that the conviction was wrong. The only way in which we could possibly interfere would be as regards the sentence. Speaking for myself, I am very anxious to avoid interfering with the sentences of subordinate Courts unless there are sufficient reasons for such interference. The fact that if I had tried the offence myself I might have inflicted a lesser sentence is not a sufficient reason, for if that were so we should be asked to interfere with every sentence which is passed. The sentence to be passed after conviction must be left to the Judge or Magistrate who tries the case, and I do not think we ought to interfere in revision unless the sentence is so severe or so lenient that it can be said that a proper discretion has not been exercised.
2. In this case the evidence has satisfied the Magistrate that the accused while driving his master's car over the Wodehouse Bridge going towards Colaba, collided with a victoria coming from the opposite direction, as a result of big rash and negligent driving As it is not proved that the victoria was on the wrong side of the road, and as a matter of fact a victoria would be keeping close to the foot-path, it is obvious that the accused, when the collision occurred, was on the wrong side of the road. Therefore he had to satisfy the Court that he had not been rash or negligent in driving the car on to the wrong side of the road. The accused's explanation, however, was that a car which was in front of him stopped so suddenly that he got on the wrong side in order to save his own life. Now if the accused was driving his car so very close to the car in front of him that he could not pull up to avoid a collision then he could not have turned his car out to the wrong side of the road. So there must have been some distance between his car and the car in front. It is obviously the duty of a driver to see he does not approach so near to the car in front of him that he cannot avoid a collision if that car slackens speed or stops. The accident took place in the evening before the lamps were lighted. At that time there would be a great deal of traffic on the Wodehouse Bridge and consequently drivers going up the Bridge could not or certainly ought not to be going very fast. Admittedly as the accused was able to pull out his car on to the wrong side of the road without touching the car in front of him there must have been ample distance between his oar and the car in front to enable him to pull up to avoid a collision if he was going at a proper speed considering the state of the traffic. There is only one alternative theory left and that is that the accused was attempting to pass the car in front of him when there was a considerable amount of traffic and when he could not possibly pass the car without going on to the wrong side of the road. In any event, therefore, the accused was rightly convicted of rash and negligent driving. It was only his good fortune that no further damage was done than actually resulted from the accident.
3. It was contended that the occupants of the car should have been called as witnesses for the prosecution. That was not necessary. If they were as anxious then as they appear to be now to exculpate the accused, they ought to have offered themselves as witnesses for the defence. It is quite irregular for such a person to make an affidavit in support of an application for revision.
4. The next question is whether the sentence of two months' rigorous imprisonment and the suspension of the accused's license is too severe. Drivers have no business to attempt to pass a car in front of them by going on to the wrong side of the road unless they can see the road in front is so absolutely clear of traffic coming from the opposite direction that they can get back again on to the right side of the road without any risk of accident. It is only when the road is so clear that there can be no possible chance of an accident that any attempt should be made to pass the car in front of the driver. It is in consequence of the neglect to observe this rule that so many accidents occur in Bombay, and so much risk is incurred by the cars with their passengers which keep to the right side of the road at a proper speed. No doubt there are many cases in which drivers though guilty of rash and negligent driving escape prosecution because they have been lucky enough to avoid an accident. But it does not follow that because no accident has occurred the driver has not been guilty of rash and negligent driving so as to endanger life. I think the Magistrate was right in imposing a severe sentence in this case and I cannot say that he exercised his discretion so improperly that this Court ought to interfere in revision. It may very well be that another Magistrate or the Judges who have heard this application, if they had tried the case, might have imposed a less severe sentence, but that, as I have pointed out, is not the question we have to consider.
5. I agree entirely with the reasons given by my Lord the Chief Justice for not interfering with the conviction. As regards the sentence, though it appears to me to be severe, it is not so unduly severe as to demand our interference in revision.