The Empress vs Haridas Mukherjee

There are several careless errors in these proceedings connected with the order for detention of Haridas Mukherjee in a Reformatory School. He was convicted by a Magistrate of theft and was sentenced to three months'' rigorous imprisonment. It was next found that he was a fit subject for a Reformatory School" and in lieu of this sentence it was accordingly ordered that he be detained in a Reformatory School for the period of five years.

There was an appeal to the Sessions Court against the conviction and sentence. The Sessions Judge affirmed the conviction but considered a "detention in a Reformatory School for five years was a severer punishment than the circumstances of the case require." He therefore set aside the order for detention in a Reformatory School and restored the sentence of imprisonment remarking that "the boy is likely to reform if he be made over to his parents after serving out the sentence of three months'' rigorous imprisonment.

The District Magistrate has pointed out to the Sessions Judge that his order was ultra vires by reason of sec. 16 of the Reformatory Schools Act, 1897. Hence this reference by the Sessions Judge. The Sessions Judge apparently considers the point to be doubtful. Because sec. 8 allows a Court of Appeal to direct that, instead of serving a sentence of imprisonment, a youthful offender so sentenced shall be sent to a Reformatory School for detention there, provided that in the judgment of such Court he is a proper person to be an inmate of a Reformatory School, the Sessions Judge contends that if a sentence of imprisonment can be so converted into an order for detention in a Reformatory School, an Appellate Court can convert an order of detention into one of imprisonment. But sec. 16 expressly prohibits the alteration of the substitution of an order for detention in a Reformatory School to imprisonment, and the terms of the law are so clear that there should have been no mistake about the meaning. The order of the Sessions Judge is without doubt ultra vires. We think it right also to point out to the Sessions Judge that he is in error in regarding as proper matter for consideration the severity of the order of detention for five years by comparison with a sentence of three months'' rigorous imprisonment as it was no part of his duty to do so for the reasons already stated, and in the next place even if he were competent to do so, he has lost sight of the object of the Legislature in passing this Act. He is further mistaken in thinking that "the boy is likely to reform if he is made over to his parents after serving out the sentence of imprisonment." It is to avoid the contamination arising from association with the inmates of a jail that detention of boys of tender age in a Reformatory School has been introduced in our penal system by the Legislature. But the proceedings before the Magistrate are open to objection because he has not found the age of this boy. In one examination the boy is described as of 14 years of age and in another of 13 years, and there is absolutely no evidence of his age nor apparently any enquiry made to ascertain it. Evidence should, therefore, be taken by the Magistrate who can then pass proper orders. For we would point out that if the order is for detention for five years in a Reformatory, it would be in excess of what is permissible by law if the boy is found to be above thirteen years of age. The Act and the Rules* passed by the Government under the Act are clear on the point.