1. A reference was made to us by the learned Sessions Judge of Arrah recommending that the convictions and sentences in two cases separately tried should be set aside and a re-trial ordered on the ground that the cases were not properly triable summarily because they were under Section 144, Indian Penal Code.
2. Now, the first error that we have to point out to the learned Judge is that two separate references ought to have been made to us, so that we might deal with the cases separately, but in addition to the reference he has made, both sides have moved us in Revision on the ground that there was no occurrence of any criminal nature at all.
3. The second point that we wish to draw attention to, is that a lathi is not in itself a deadly weapon. It performs precisely the same function in ordinary life in this country as a walking stick does in other countries; it is, universally used by every body in the moffussil and it certainly cannot be regarded as in any way a deadly weapon unless and until it is used on the head or on some vital part of a person. On the legal ground put forward by the learned Judge, therefore, this reference should never have been made Furthermore, it should never have been made on the very plain ground which both sides have clearly established before us that the whole matter was a trumpery quarrel which no person of ordinary sense or temper would complain of and there was absolutely nothing to cause any harm to any body. It was an unfortunate incident that the two parties had collected outside their respective houses and apparently said 'come, come', to each other but the upshot of it was that no body did come and nothing happened. That this trumpery quarrel should be perpetuated by a solemn trial in a Criminal Court seems to us lamentable; and it had better been dropped altogether.
4. The convictions and sentences are set aside not upon the ground referred to by the Sessions Judge but on the ground that the case falls within Section 95, Indian Penal Code.
5. This order will apply to Reference Nos. 299 and 300 of 1910 and Revision Nos. 1 and 50 of 1911.