1. This is a reference by the District Magistrate, Poona, under the following circumstances. The Special Magistrate, Poona Cantonment, convicted a man, aged 24, of theft and sentenced him to whipping, namely, twelve stripes in jail. The judgment was delivered at 5 P.M. on October 15, and the accused was sent to the city look-up, as the prison van did not call that day. The next morning the accused was sent to the Yeravda jail, but was not whipped as it was Sunday. The Superintendent, Central Prison, returned the warrant with the accused on Monday on the ground that the sentence of flogging should have been executed on the day of the judgment. The accused has been released on personal recognizance by the Magistrate, who referred the case to the District Magistrate for orders. The Superintendent of the jail is of opinion that it was illegal to keep the prisoner in confinement in order that the sentence of whipping might be carried into effect, and that a sentence of whipping can only be executed on the day that the judgment is passed. In support of this he has referred to a certain opinion of the Legal Remembrancer to Government and to the case of Queen-Empress v. Abdulla (1897) Cr. C. 906. The District Magistrate differs from the Superintendent and is of opinion that, as the sentence of whipping was under a warrant which directed that it should be carried out as soon as practicable, the Superintendent of the jail would have been justified in detaining the prisoner from Saturday to Monday in order to carry out the sentence of whipping, if whipping on Sunday is not allowed.
2. In connection with the latter point, it is pointed out that Rule 366 of the Bombay Jail Manual prescribes that persons sent to a prison for whipping only shall be dealt with immediately and then released. 'They shall under no circumstances be detained overnight and their names shall not be entered in the prison registers. 'On the other hand, the ruling in Queen-Empress v. Adbulla is now obsolete. In that case this Court agreed with the Sessions Judge that Section 390, Criminal Procedure Code, authorizes the Court passing a simple sentence of whipping to fix the place and time for its execution, but it does not contemplate a postponement of the execution of the sentence to a future day. Since that ruling was given, Section 390, Criminal Procedure Code, has been amended so as to make it subject to the provisions of Section 891; and in Section 391 there is a provision for the whipping not being inflicted in certain cases until fifteen days from the date of the sentence, or if an appeal is made within that time, until the sentence is confirmed by the appellate Court, This is because the Code now provides for an appeal from a simple sentence of whipping, whereas formerly such an appeal was not allowed. In these circumstances, it seems quite clear that it cannot be held that under Section 390 the sentence of whipping must be executed on the very day that the sentence is passed. In any case the words 'at such place and time as the Court may direct' are very wide and give a discretion to the Co art; and a direction that the sentence of whipping should be executed as soon as practicable, is one that in the circumstances of a case like the present (not falling under Clause (a) or (b) of Sub-section (1) of Section 391) is a proper order to pass. It cannot be the intention of the Legislature that the sentence of whipping should be rendered infructuous, because it is impracticable to carry it out on the day that the sentence is passed.
3. The Superintendent has also, in our opinion, put a wrong construction on the opinion of the Legal Remembrancer, to which he refers in support of his contention. That opinion merely had reference to the question whether execution of an order for whipping could be postponed in order to obtain the presence of the Medical Officer of the jail, and although it referred to the ruling in Queen-Empress v. Abdulla, that was merely in order to support the view that the Legal Remembrancer there put forward.
4. We agree, therefore, with the District Magistrate that the Superintendent's view is untenable, and that in the present case, if the whipping could not under the Jail Rules be carried out on a Sunday, the Superintendent would have been justified in detaining the prisoner till Monday, although Rule 366 seems to contemplate that the sentence should be carried out on a Sunday rather than that the accused should be kept overnight in jail.
5. This is sufficient to answer the reference. It is unnecessary for us to say how long exactly the Superintendent of a jail is justified in keeping such a person in custody in the jail. The intention obviously is that, in cases other than those falling under Clause (a) or (b) of Sub-section (1) of Section 391, the sentence should be carried out as soon as practicable. Accordingly, the District Magistrate should arrange that the accused is sent to jail again so that the order of his whipping may be executed in accordance with law.
6. I agree