CRUZ FERNANDES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a revision petition filed by the petitioner from jail, praying for the reasons mentioned therein, that the order passed by the learned Sessions Judge in appeal against the conviction and sentence imposed on him by the learned Magistrate be set aside as that order is not in conformity with the provisions of law.

(2.) The material facts are that the petitioner was convicted, on his own plea of guilty, under Ss.487 and 381, I.P.C., in Criminal Case No. 170/P/68, to undergo rigorous imprisonment for 3 months and to pay a fine of Rs. 100/- and in default of payment, to undergo further rigorous imprisonment for 1 month. In this case the learned Magistrate passed an order that this sentence should run concurrently with the sentence he had imposed in criminal case No. 168/P/68. In case No. 168/P/68, the petitioner was also convicted on his own plea under Ss.457 and 381 of the I.P.C., and sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs. 100/- and, in default of payment of fine, to undergo rigorous imprisonment for 1 month more. This case was disposed of by him same day as case No. 170/P/68. It appears through an error the petitioner filed an appeal in the Court of Sessions contending that the sentence imposed on him in criminal case No. 168/P/68, should be made to run concurrently with the sentence imposed in criminal case No. 170/P/68. This error seemed to have misled the learned Sessions Judge into considering this contention on merits. The order passed by the learned Magistrate in criminal case No. 170/P/68 was clear enough and this error committed could have been avoided. The provisions of S.397(1) of the Code of Criminal Procedure can be relied upon in support of the validity of the two sentences imposed by the learned Magistrate. This section to the extent it is material for the present purpose, provides that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.

(3.) The learned Magistrate did direct that the subsequent sentence passed on the same day in criminal case No. 168/P/68 should run concurrently with the sentence passed in criminal case No. 170/P/68. He exercised the discretion vested in him. This discretion is to be judicially exercised. Each case has to be considered on its own fasts and circumstances, the decisions in other case being illustrative. There is no such discretion vested in him under S.397(2), and for obvious reasons. This provision operates of its own accord. Section 397(1) does not say that it is only when a person is already undergoing a sentence of imprisonment in jail that it will have effect, but not otherwise. The principle is that the sentence passed should operate and take effect immediately on conviction and cannot be postponed. This is understandable. The provisions of S.35 of the said Code are clearly inapplicable to the facts of this case. That section visualizes sentences in cases of conviction of several offences at one trial. There were two trials in the case under consideration and, therefore, S.397(1) could properly be invoked; it contemplates more than one trial. The learned Magistrate exercised his discretion under this provision presumably because the two offences in both cases were of a similar nature. This discretion does not seem to have been improperly exercised. The petitioner must be deemed to have undergone the sentence passed in criminal case No. 168/P/68 from the moment he was sentenced. Section 397(1) does not say that the sentence of imprisonment already undergone shall be on a different day and not on the same day. It has to be understood in its plain sense. It contemplates a sentence anterior in time which a person is undergoing and also a subsequent sentence on a subsequent conviction.