1. This is a rule calling upon the accused person and the Magistrate of the district to shew cause why the sentence passed in this case should not be set aside as being contrary to law, and a proper sentence passed.
2. The sentence passed by the learned Deputy Magistrate on the 3rd of May 1897 runs in these words: 'I find Ahmed Ali, boy, guilty of house-breaking by night for the purpose of committing theft, and instead of being imprisoned in the jail under Section 457 of the Penal Code, I direct under Section 399 of the Criminal Procedure Code and Section 7 of Act V of 1876 that Ahmed Ali be confined in the Calcutta Reformatory for two years for training in some branch of useful industry.'
3. No cause is shewn either by the accused or by the District Magistrate.
4. The order of the Deputy Magistrate, so far as it refers to Section 7 of Act V of 1876, is clearly wrong, as before the date of the order (3rd May 1897) and that of the commission of the offence (27th April 1897) that Act had been repealed by Section 2 of Act VIII of 1897, which came into operation on the 11th March 1897. The question then is whether Section 399 of the Code of Criminal Procedure or any provision of the present Reformatory Schools Act (VIII of 1897) will sustain the order.
5. Act VIII of 1897 does not warrant the sentence as it stands, as the least period for which detention in a Reformatory School can be ordered under that Act is by Section 8 of the Act fixed at three years, whereas the term for which detention is here directed is two years only.
6. Section 399 of the Code of Criminal Procedure, if it stood alone, would no doubt warrant the order made in this case, the accused having been found to be 'a boy of fourteen or fifteen years, decidedly under sixteen.' But then the question arises, what is the effect of Section 399 read with Section 3 of the Code of Criminal Procedure, and with Section 2 of Act V of 1876 And how far is that effect modified by Sections 2 and 3 of Act VIII of 1897 ?
7. Section 2 of Act V of 1876 enacted that on and from the day on which that Act was extended to any Province by the Local Government, Section 318 of the Code of Criminal Procedure (that is, Act X of 1872, the Code then in force) should be repealed therein. Section 399 of the present Code of Criminal Procedure corresponds to, and is in fact a reproduction almost word for word of, Section 318 of the former Code; and Section 3 of the present Code enacts that in every enactment passed before that Code comes into force in which reference is made to any section of the Code of Criminal Procedure (Act X of 1872), such reference shall so far as practicable be taken to be made to the corresponding section of the present Code. Therefore Section 399 of the present Code must be taken to stand repealed to the extent to which Section 318 of the former Code had been repealed by Section 2 of Act V of 1876, that is in the Provinces to which the last mentioned Act had been extended; and it remains operative only as regards the rest of British India.
8. It might appear somewhat anomalous that after having provided in Section 2 of Act V of 1876 for the gradual repeal of Section 318 of the Criminal Procedure Code of 1872, the Legislature should re-enact this last mentioned section in an unmodified form in the Code of 1882. But the anomaly is explained when it is remembered that Section 399 of the Code of Criminal Procedure is a general provision applicable to all cases except those otherwise specially provided for, while the provisions of Act V of 1876 and Act VIII of 1897 are of a special character applicable only to certain defined classes of cases. This view is in accordance with the decision of the Madras High Court in Queen-Empress v. Madasam(sic) (1888) I.L.R. 12 Mad. 94.
9. The repeal of Act V of 1876 does not revive Section 399 of the Criminal Procedure Code in places in which it had been repealed by the first mentioned Act, regard being had to the provisions of Section 7 of the General Clauses Act (X of 1897), which, in fact, embodies the rule of English law applicable to the subject (see Maxwell on the Interpretation of Statutes, 3rd Edition, p. 585).
10. Nor does Section 3 of Act VIII of 1897 really raise, as it might at first sight seem to do, any inference that Section 399 of the Code of Criminal Procedure is in force throughout British India, and is repealed in any Province only from the date of the notification mentioned in the section, such notification having reference, as Section 1, Sub-section 3 shews, only to the Punjab and Coorg, and not to any other part of British India.
11. Section 399 of the Code of Criminal Procedure must therefore be held to have no force in the Provinces to which Act V of 1876 was extended, and to be in force only in the rest of British India. Now Act V of 1876 was extended to Bengal on the 1st of March 1878 by a notification, dated the 14th of February 1878 (See the Calcutta Gazette for 1878, Part I, p. 138). Therefore Section 399 has no force in Bengal, and the order of the Court below directing the accused to be confined in the Calcutta Reformatory for two years is not warranted by law, and must be set aside.
12. The question then remains what sentence should be passed on the accused. There being no clear finding that the accused was at the date of conviction 'under the age of fifteen years,' the limit of age prescribed by the present Reformatory Schools Act VIII of 1897, the provisions of that Act do not apply to him, and there is no other provision of law under which he can be detained in a reformatory. We therefore set aside the sentence passed on the accused as being contrary to law; and having regard to all the circumstances of the case we sentence the accused under Section 457 of the Penal Code to rigorous imprisonment for six months, the sentence taking effect from the date of this order.
13. This is a rule calling upon the District Magistrate of Backergunge and the accused Ahmed Ali to show cause why the order of the Deputy Magistrate of Barisal, dated the 3rd May last, directing that the accused (whom he had convicted under Section 157 of the Penal Code) be detained in the 'Calcutta Reformatory' for a term of two years, should not be set aside as being contrary to law, and a proper sentence passed.
14. The order purports to have been made 'under Section 399 of the Criminal Procedure Code and Section 7 of Act V of 1876.'
15. The rule was granted to the Deputy Legal Remembrancer at the instance of the Local Government. It has been duly served upon the parties concerned, of whom the District Magistrate admits that the order is illegal, but the accused does not appear to show cause.
16. As to the illegality of the order, so far as it depends upon the Reformatory Schools Act V of 1876, there can be no question; firstly, because that Act has been repealed by Section 2 of the Reformatory Schools Act VIII of 1897; and, secondly, because, even if the Act of 1876 were still in force, the order is in contravention of Rule I of the Rules Notification No. 340, Home Department, dated 13th March 1878 made by the Governor-General in Council under the provisions of Section 22 of that Act; this being a first conviction of the accused, and the latter; being over ten years of age, the minimum period for which he could be sentenced to detention in a Reformatory School would be three years; and, as he appears to be close upon sixteen years of age, it would follow that he could not legally be sent to a Reformatory School at all.
17. It remains to be seen whether the order is a good order under Section 399 of the Criminal Procedure Code.
18. The question as to the effect of the Act of 1876 upon the provisions of Section 399 of the Criminal Procedure Code in any Province to which the former Act had been extended, was discussed by a Full Bench of the Madras High Court in the case of Queen-Empress v. Madasami (1888) I.L.R. 12 Mad. 94. So far as the question now before us is concerned he position is much the same as when that case was decided in 1888. But it will be advisable to refer briefly to certain provisions of the Act of 1897 when discussing the question.
19. The entire Act of 1897 extends to the whole of British India 'except the territories for the time being administered by the Lieutenant-Governor of the Punjab and the Chief Commissioner of Coorg, but either of the said local Governments may at any time by notification in the local official Gazette, extend' the whole Act to their territories from any date fixed in such notification. This is provided by Sub-section (3) of Section 1.
20. Again, Section 3 declares that from the date so fixed, Section 399 of the Criminal Procedure Code 'shall be repealed in the Province to which the notification relates.'
21. It will be observed, therefore, that the Act is silent as to whether Section 399 of the Criminal Procedure Code is still in force in the Provinces to which the Act applies by virtue of Section 1, Sub-section(3); for example in this Province of Bengal.
22. The reason for this silence is not very clear. It may be that the Legislature, when enacting Act VIII of 1897, assumed that Section 399 of the Code of Criminal Procedure had been already repealed by Act V of 1876 in all territories to which that Act had been extended; or, it may be, as pointed out by Muttusami Ayyar, J., in Queen-Empress v. Madasami that it allowed Section 399 of the Criminal Procedure Code to remain in force side by side with the Reformatory Schools Act, so as to reserve to itself the power to provide in the future 'reformatories' for the benefit of female juvenile offenders, the special Act dealing only with male juvenile offenders.
23. The inconsistency, however, of leaving Section 399 of the Criminal Procedure Code in force in some Provinces, and of altogether repealing it in others, would seem to furnish an argument against the adoption of the second of these conjectures.
24. And, indeed, it appears to me that Section 399 of the Criminal Procedure Code has already been practically repealed in Bengal by Act V of (sic) of course the repeal of the latter Act would not have the effect of reviving the effect of reviving the Section which it repealed.
25. I base this opinion upon the following reasons: When Act V of 1876 was passed, the Procedure Code in force was that 1872. Section 318 of that Code, which is practically word for word the same as Section 399 of the present Code, was repealed in Bengal on and from the day upon which Act V of 1876 came into force in this Presidency by (sic)tification (See Sections 1 and 2, Act V of 1876). That Section 318 of the Code of 1872 was reproduced as Section 399 of present Code was perhaps due (partially at least) to the fact British India, and that it was necessary to leave some such provisions in force in the Provinces to which this special Act had not been extended. But the result would not be to revive the provisions of Section 318 of Act X of 1872, or, in other words, to make Section 399 of the present Code to be in force, in Provinces (such as Bengal), in which to the Reformatory Schools Act of 1876 was in force. This would be prevented by the provisions of the first paragraph of Section 3 of the Criminal Procedure Code, which runs as follows: 'In every enactment passed before this Code comes into force, in which reference is made to, or to any chapter or section of, the Code of Criminal Procedure Act XXV of 1861, or Act X of 1872, or to any other enactments hereby repealed, such reference shall, so far as may he practicable, be taken to be made to this Code or to its corresponding chapter or section.' So that, where Section 2 of Act V of 1876 refers to Section 318 of Act X of 1872, as being repealed, that reference must, 'so far as may be practicable,' be taken to be made to the corresponding section, viz., Section 399 of the Code of 1882 now in force. In other words, Act V of 1876 repealed, not only Section 318 of Act X of 1872, but also Section 399 of the present Code, in all territories to which the Act of 1876 has been extended.
26. It consequently follows that the order of the Deputy Magistrate of Barisal purporting to be under Section 399 of the Criminal Procedure Code and Section 7 of Act V of 1876 is an illegal order under both these sections.
27. There is yet another matter in which that order is at least irregular. The age of the accused is not clearly ascertained. In his statement to the Court, he is declared to be fifteen years old; in the judgment the Deputy Magistrate says 'that he is a boy of fourteen or fifteen years, decidedly under sixteen.' Now, even if the Act of 1876 had been in force, the Magistrate should have clearly determined the age of the boy before directing his detention in the reformatory school. This has been laid down in the case of Queen-Empress v. Manaji (1889) I.L.R. 14 Bom. 381 and the present Act of 1897, Section 11, prescribes that there should be a preliminary enquiry and a finding in this respect.
28. For the above reasons, I also think that the order of the Deputy Magistrate should be set aside, and in lieu thereof that Ahmed Ali should be sentenced under Section 457 of the Penal Code to rigorous imprisonment for six months.