1. This is an application in revision against an order of the District Magistrate who, sitting as a Court of appeal, has altered the conviction of the applicant from Section 451 to Section 454 of the Penal Code, and has converted his sentence from three months imprisonment and Rs. 50 fine to a sentence of whipping. It is contended on behalf of the applicant that this sentence is illegal, and the contention appears to me to be good. The Magistrate who tried the case charged the applicant with having committed an act of house-trespass with a view to outrage the modesty of Musammat Rampa. The District Magistrate has apparently concurred with the finding of the trial Court that the applicant's object was to outrage Musammat Rampa's modesty. There is, therefore, a common finding of both Courts that the applicant entered the house in order to commit an offence punishable under Section 354 of the Penal Code. This offence is not punishable with Whipping and therefore Section 3(d) of the whipping Act does not apply. This being so, the sentence of whipping inflicted by the District Magistrate appears to be illegal, and I direct that the proceedings be referred to the High Court with a recommendation that the sentence of whipping be set aside and that either the original sentence be restored or such other sentence be inflicted as the Hon'ble Court may think proper.
2. Another point arises and has been argued before me and that is, that the District Magistrate's order amounts to an enhancement of sentence. In a Madras case in 1897 (reported at page 487 of Weir's Law of Offences and Criminal Procedure) it was held that where the lower Court reduced a sentence of imprisonment and inflicted a sentence of whipping, the effect was an enhancement. The present case is of course different inasmuch as the original sentences of imprisonment and fine have been set aside altogether and in their place a sentence of whipping has been substituted. In the circumstances, therefore, I do not think it can be said the sentence has been enhanced but I should be glad to have a ruling on this point.
3. Before the record is submitted to the High Court an opportunity will be given to the learned District Magistrate to state his point of view in regard to the two questions raised in this revision.
4. The parties were not represented.