STATE Vs. BANSI

JUDGEMENT

(1.) THIS is a revision by the State against an order of Mr. Kashi Shanker Prasad, Magistrate First Class, Kanpur, whereby he directed the opposite -party Bansi, a lad of 12 or 13 years, to be sent to a Reformatory School for a period of four years. Bansi was found in possession of two tolas of Contrabond Charas and he was, therefore, charged before the learned Magistrate under Section 63 of the Excise Act. The learned Magistrate found the accused guilty in these words:

(2.) ALTHOUGH the Magistrate found the accused guilty yet he did not record a conviction under any provision of the law, nor did he pass any sentence on the opposite -party. What the learned Magistrate did was that he directed the opposite -party to be sent to a Reformatory School for four years.

(3.) FROM the above it will be clear that the power of a Magistrate to send a youthful offender to a Reformatory School depends upon the youthful offender being sentenced to at least a term of imprisonment. So that when the Magistrate in the case before us did not pass any sentence of imprisonment on the opposite -party, he could not, strictly speaking, have the jurisdiction to send him to a Reformatory School as an inmate. Under Section 8(3)(b) of the Reformatory Schools Act the Provincial Government had the power to make rules by which it could regulate the period for which youthful offenders were to be sent to such schools according to their ages or on other considerations. Under Section 8(3)(b) the Provincial Government made certain rules and by a Notification No. 1635/VI -40 -B, dated June 18, 1897, it laid down than a Magistrate could not send a youthful offender blow the age of 14 to a Reformatory School for less than five years. The Magistrate's order, therefore, was illegal in two respects, first, that the Magistrate had omitted to convict and sentence the opposite -party, and secondly, that the Magistrate had directed the opposite -party to be detained in a Reformatory School for a period which was Jess than the period prescribed under the rules. The order of the learned Magistrate has, therefore, to be set aside and we accordingly set it aside. We would not have interfered in this matter in our revisional jurisdiction had it not been for the fact that in our opinion the order which we propose to pass in the case would be for the benefit of the opposite -party. The opposite -party was represented before us by a Learned Counsel, who stated that he also was of the opinion that his client would benefit by being at a Reformatory School than being at large. The reason for our taking this view is based on the fact that the opposite -party appears to have been a vagrant being an orphan. He has had a previous conviction to his credit and the sentence one under the first offenders Probation Act that he got under that conviction did him no good. Detention in a Reformatory School for five years may improve the opposite -party a good deal.