Shaikh Idris and Others vs Emperor

Mohammad Noor, J.—The three petitioners were convicted by a First Class Magistrate of Monghyr under Sections 457 and 380, I.P.C. The order portion of the learned Magistrate''s judgment though not very happily worded makes it clear that he has passed separate sentences of three months'' rigorous imprisonment on each of the petitioners for each of the two offences and has added a fine of Rs. 15 on each of them u/s 380, I.P.C.

The learned Magistrate not having specified that the two sentences of three months'' rigorous imprisonment on each of the petitioners were to run concurrently, they must be held to have been ordered to run consecutively u/s 35, Criminal P.C. The appeal of the petitioners was dismissed by the Sessions Judge and the petitioners have come up for revision.

A limited rule was issued by a learned Judge of this Court to examine the legality of the separate sentences under Sections 380 and 457, I.P.C. Prior to the amendment of the Criminal Procedure Code in 1923, there were a number of decisions of this Court to show that such sentences were illegal and it was clearly so under the illustration which was given in Section 35, Criminal P.C. The Section empowered the Court to pass separate sentences for distinct offences and provided that such separate sentences would run consecutively unless ordered to run concurrently.

The Illustration said that breaking into a house with intent to commit theft and stealing property therein were not distinct offences. Now by the amendment the word "distinct" has been deleted and also the Illustration. My view is that as the Section now stands, there is nothing to prevent the Court u/s 35 of the Code to pass separate sentences for offences under Sections 457 and 380, I.P.C. This view is taken by the Calcutta High Court in Kanchan Molla and Another Vs. King-Emperor, . But there are certain observations in two cases which seem to go the other way. One of them is the decision in Bajo Singh v. Emperor A.I.R (1929) . Pat. 263 in which a Bench of this Court (Courtney-Terrell C. J. and Allanson J.) held that the change in Section 35 of the Code has made no difference and they held that a separate sentence under Sections 326/149 and Section 147 was illegal.

This decision is not of much help in a case under Sections 457 and 380 inasmuch as these two, in my opinion, are separate offences while rioting and constructive offence u/s 149, I.P.C., cannot be said to be separate offences. Apart from the question of legality, even after the amendment of the Act in 1923, it has been held that in Mt. Champa Pasin v. Emperor A.I.R (1928) . Pat. 326 that such separate sentences are unjustified.

In my opinion the question is not of much practical importance as in an overwhelmingly large number of cases the punishment provided for any one of these two offences will be sufficient and if the Court of Appeal finds that the trial Court has wrongly passed two separate sentences but the sentences taken together are not excessive, they can be consolidated: see Paltu Singh and Others Vs. Emperor, and Bajo Singh v. Emperor A.I.R (1929) . Pat. 263, already referred to.

Therefore it is not necessary to pursue this matter any further. The sentences taken together are of six months'' rigorous imprisonment and a fine of Rs. 15. There would have been no difficulty in consolidating them if we thought that threemonths'' rigorous imprisonment under the circumstances of the case was inadequate or if we thought that the sentences were excessive we could reduce it.

Now in connexion with the sentence, we had to examine the facts of the case rather in detail and in our opinion the caseseems to us to be very doubtful if not altogether false. (The judgment then discussed the evidence and proceeded.) The accused have been in jail for more than three months. Though it would have been sufficient to remit the unexpired portion of the sentences but having gone into the evidence we find the case very suspicious and the accused must be acquitted. The accused will therefore be acquitted and will be set at liberty at once. The fine if paid will be refunded.

Yarma J.

I agree.