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Judgment
Ghose and Gordon, JJ.—It seems to us that the legal effect of the order of the District Magistrate in this case is to acquit the accused of the offence u/s 147 of the Penal Code, and enhance the sentence u/s 379. If the accused have been rightly acquitted of the offence u/s 147, it follows that the sentence imposed under that section must fall through. And we are of opinion that the necessary consequence of the order of the District Magistrate maintaining the same sentence which the Deputy Magistrate had awarded is to enhance the sentence u/s 379 which he had no authority to do u/s 423, clause (b), sub-Section 3 of the Code of Criminal Procedure [see in this connection the decision of this Court, in Arpin Sheik v. Arobdi Datia.
[318] The order of the District Magistrate enhancing the sentence from two to six months u/s 379 of the Penal Code will be set aside.