Full Judgment
Fawcett, J.
1. We agree with the District Magistrate that this is a case in which the Second Class Magistrate, Dohad, should have availed himself of his power under Section 8 of the Reformatory Schools Act, 1897, of sending the boy Lakshman Naran to a Reformatory instead of his undergoing the sentence of one month's simple imprisonment and a further one month in default of payment of fine, which was inflicted for his offence under Section 380, Indian Penal Code. The boy was not less than ten years or more than fifteen, his age being thirteen, and there was a previous conviction of theft under Section 381, Indian Penal Code, against him. Therefore, it was a case where he could properly be sent to a Reformatory under the conditions mentioned in Criminal Circular No. 89 at page 56 of the High Court Criminal Circulars. We accept the District Magistrate's recommendation, and direct, in the exercise of our powers under Sub-section (2) of Section 8 of the Reformatory Schools Act, that the accused, instead of undergoing the sentence which was passed upon him by the Magistrate, shall be sent to a Reformatory School, and be there detained for a period of four years.
2. I would add that in a judgment to which I was a party in Criminal Reference No. 41 of 1924, decided on July 31, 1924, an opinion was expressed that we could not pass an order for the detention of an accused in a Reformatory School, because under Section 8, Sub-section (2), the case comes before us not on appeal but in revision. That opinion, however, was not really necessary for the decision of the case, as other methods were adopted for getting the boy sent to a Reformatory, and I can say that the point was not fully considered. We took it that the words 'on appeal' at the end of Sub-section (2) of Section 8 would exclude a case that came before us in revision. On further consideration, however, I am satisfied that this dictum should be corrected. As a Court of revision we have all the powers of a Court of Appeal, and in addition, a power of enhancing a sentence; therefore, if we could exercise the power conferred by Sub-section (2) in a case coming before us on appeal, a fortiori, we can exercise it in revision, where the objection that to make a direction for detention in a Reformatory would in effect be an enhancement of sentence beyond the powers of an appellate Court will not apply. We think that Section 439, Sub-section (1), Criminal Procedure Code, suffices to give us the necessary power to pass an order under subs (2) of Section 8 of the Reformatory Schools Act not only on appeal but also in revision. We do not think that it could have been the intention of the Legislature to limit the exercise of those powers merely to cases that came before the High Court on appeal in the limited sense, and that the words are meant to cover also the powers that a High Court can exercise as a superior Court by way of revision.
Mirza, J.
3. I agree.