JUDGMENT
Blair, J.
1. Moti Lal Mallah and Bachcha Mallah have been convicted by a Magistrate of an offence under Section 426 of the Indian Penal Code, and sentenced to a fine of Rs. 40 each, or in default to be imprisoned for one and a half months. The matter came in revision before the Sessions Judge, and he was of opinion that the facts disclosed no offence within the meaning of Section 426. The facts, as found, are, that at a certain feast, which had been preluded by recitals from some religions books, after such recitals, the Brahmaas having first taken their food, a number of persons of the same caste as the persons who have been convicted, took their seats to the south–whether south of a room or courtyard does not appear. That for some reason unexplained, Moti Lal Mallah and Bachcha Mallah wanted the persons who were seated to move from the south to the north. They refused to do so–the refusal likewise is unexplained. The food which was going to be eaten was on the spot, and the two persons convicted threw a shoe on the adjacent ground, the effect of which would be to render the food impure from the point of view of Hindus of the caste of the persons who were there assembled. They were thus, on account of their conscientious scruples, unable to eat it. It is quite manifest that Section 426 can have no application to this state of facts. It deals only with a physical injury from a physical cause. It has been suggested by Mr. Porter that the case may fall within one of two other sections. The first is Section 298, which renders punishable the uttering, of words or sounds, or making gestures, or the placing of any object with the intention of wounding the religious feelings of any person. In my opinion this case is outside the scope and tenour of Section 298. My attention has been called to the possibility that the facts of this case may fall within the purview of Section 504. That section refers to an insult intentionally inflicted, and which was likely to result in a breach of peace. I doubt very greatly whether the intent here was an intent to insult. It was an intent to deprive these persons of an expected feast, and the insult, if any, would have been incidental and not intentional. However, these persons who have been convicted have not been charged under Section 594, and I have no materials before me on which I could find that the facts fell within the provisions of that section. I therefore set aside the sentence under Section 426, and order that the fines, if paid, be returned, and if the accused have been confined, that they be at once released.
