1. It is difficult to understand the arguments of the two subordinate Courts. The applicant has been convicted of an offence under Section 336, I.P.C. The section runs as follows:
Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment.
2. What was alleged and found by the two subordinate Courts against the applicant was this. He was a pujari of a temple and left the temple at night in charge of a third person. While away from the temple he deliberately threw bricks at the temple hoping that the Hindus would believe that the bricks came from the Mahomedan quarter and that thereby the Hindus would be enraged against the Mahomedans and there would be a riot between the Hindus and Mahomedans. The applicant is held to have done that deliberately and not rashly or negligently. A rash act is primarily an overhasty act and is opposed to a deliberate act. Even if it is partly deliberate, it is done without due thought and caution. Here there' is no question of want of thought or want of caution. The applicant desired a certain result to follow from the throwing of bricks and he deliberately threw the bricks at the temple for that purpose. According to the findings of the two subordinate Courts, there was neither rashness nor negligence in the act.
3. The learned Government Pleader was of opinion that the provisions of 8. 153 would apply.
Whoever malignantly, or want only, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall be punished with imprisonment.
4. Here, the provocation has to be caused by the doing of anything which is illegal. The word 'illegal' has been defined in Section 43 and is made applicable to everything which is an offence or which is prohibited by law or which furnishes ground for a civil action. The throwing of a brick at a temple is so far not declared to be an offence, nor is it prohibited by law. It may furnish grounds for a civil action if anybody was hit, but in the present case, nobody was hit. It cannot be said that the applicant's act was illegal.
5. The subordinate Courts have themselves been doubtful of their finding. So they have taken refuge by raising a side issue. They say that the act of throwing a brick was rash and negligent because thereby the life of Dodhe, whom the applicant himself had left in the temple, was placed in danger. There was no such allegation made by the prosecution witnesses. The applicant, whose act was deliberate must have taken good care to see that Dodhe was not hit by the bricks.
6. The conviction cannot be maintained. I set aside the order under Section 562, I.P.C.