P (PLP)

82 1 C. 478 ref. Muhammad Amin Khan, for Petitioner. Muhammad Amin, for Advocate‑General, for Respondent. Under the former section, when a person is convicted at one trial of two or more offences, the sentences shall commence the one after the expiration of the other, unless the Court directs them to run concurrently. Under the latter, when a person already "undergoing a sentence" is convicted and sentenced for another offence, the latter sentence shall commence at the expiration of the former. By an amendment of the Code in 1923, the Court was given discretion to make the two sentences run concurrently in this case also. Now in the present case; the petitioner was on bail when the three sentences were pronounced on him, and immediately thereafter he was taken into custody. If he had not been on bail, he could be understood to have started undergoing the first sentence when the second was pronounced, even though the two pronouncements were separated by the space of a minute only. Again, if he had been taken into custody after the first sentence had been pronounced and kept in custody for an hour or a day before the pronouncement of the second sentence, he would have undoubtedly been regarded as under going the first sentence and the provisions of section 397 would have been attracted so as to make consecutive sentences legal. Lastly, if instead of trying the petitioner in three separate trials, the Magistrate had made all the three charges the subject‑matter of one trial; as he might well have done under section 234, the sentences could have been made consecutive or concurrent, as the Magistrate pleased, under section

35. In fact, if the Magistrate did not express his pleasure one way or the other, the sentences would be regarded as being conse cutive. But when there are three separate trials, and the Magis trate does not put the accused to the inconvenience of appearing before him on three separate days to hear sentence in each case separately, or does not place him under custody immediately after the first of the sentences is pronounced, or suffers the indulgence of bailing him out during his trial so that he is not in custody when the first sentence is pronounced on him, then, on the wording of section 397, it is argued, it must be assumed that the sentences should be concurrent. For it is only that section which provides for consecutive sentences when separate trials take place, and if it is inapplicable, there is no other provision by which they can be made consecutive. If, therefore, it is held that the words "undergoing a sentence" mean that the sentence is being actually and physically under gone, Magistrates would be driven to the adoption of farcical devices. Thus, in the present case, the accused would be arrested and sent out of Court to undergo half an hour of sentence and called back to hear the second sentence pronounced : then sent out again and called back afresh to hear the third pronouncement. That, surely, could not have been the intention. Like wise, it could not have been intended that when a person is tried in one trial for two or more offences of the same kind, he should be less favourably situated as regards the concurrency or consecutiveness of the sentences than when he is tried separately on each charge. I am, therefore, of the view, in consonance with 1905 Weir's Reports 451 (Criminal Revision Case No. 556 of 1891), that a person is "undergoing" imprisonment within the meaning of section 397 from the moment the sentence is passed. I respectfully disagree with the extreme view adopted in Makhan v. Emperor (43 Indian Cases 623) that until the accused has actually passed into the portals of the jail, he is not "undergoing" a sentence of imprisonment. There is no particular magic in the portals of the jail, and a man might not be admitted in jail on the first day if the sentence is pronounced on him late in the day. That view was taken in support of an order passed before the amendment of 1923, making two sentences passed on the same day concurrent. The learned Judge held that the sentences could be made concur rent notwithstanding that there was no provision in the section as it then stood, because section 397 was not applicable. He relied, however, on Emperor v. Muhammad Isa Habib (10 I. C. 769), where it was held that such an order was not illegal because for all practical purposes there was one trial, and if the accused had been tried for both the offences in one trial, his sentences could have been made concurrent under section 35 If this reasoning is adopted in the present case, then by the applicability of section 35 the sentences would run conse cutively unless they were expressly made concurrent. In Emperor v. Nga Po Thaung (82

1. C. 478), the accused was in custody when the second sentence was pronounced, though both sentences were pronounced the same day. The Magistrate, applying section 397 made the second sentence concurrent with the first. The High Court held that since the accused was in custody, he was "undergoing" the sentence within the meaning of section 397, which was, therefore; applicable. I hold that the accused was undergoing his first sentence when the second and third were pronounced on him, and that consequently, where there is no order making them concurrent, they will be undergone consecutively. The petition is dis missed. A. H. Petition dismissed.