1. These are references by the District Magistrate of Nasik in the matter of one Balwant Jivan Pawar, a youth who has been convicted of two offences of indecent assault, one on a married woman of fifty and the other on a girl of eleven. The trial Magistrate ordered him, to be detained in the Borstal School for a period of three years, and the authorities responsible for the Borstal School object to this order on the ground that youths of this type exercise a bad influence in the School. The District Magistrate has accordingly submitted the cases to this Court and recommends that the accused should be dealt with in some other way. The learned District Magistrate has suggested whipping, but as the accused is eighteen years old, the Whipping Act does not apply in the case of an offence under Section 354.
2. Moreover, as the learned Assistant Government Pleader points out, Section 21 of the Borstal Schools Act appears to deprive us of any jurisdiction to interfere at all. The proviso to that section says:
Provided that nothing contained in the Code of Criminal Procedure, 1898, shall be construed to authorise any Court or Magistrate to alter or reverse in appeal or revision any order passed with respect to the age of an offender or the substitution of an order for detention in a Borstal School for transportation or imprisonment.
3. This appears to mean that if the trial Court has substituted an order for detention for a sentence of transportation or imprisonment this Court cannot interfere in appeal or revision. The first part of the section says that an order of detention under Section 6 shall be deemed to be a sentence of imprisonment for the same period.
4. It was recently held by the Chief Justice and Mr. Justice Sen in Emperor V. Bhaila Ravla(1) that Section 21 of the Act debars us from making any such order as the District Magistrate asks us to make. It seems that only Government has power to alter the order made by the Magistrate. It might be done under Section 12. The papers must, therefore, be returned to the District Magistrate.