EMPEROR Vs. HANMA TIMMA BHANDIWADDAR

JUDGEMENT

(1.) THE Second Class Magistrate, Haveri, convicted the accused, Hanma, of two offences : (1) under Section 411 of the Indian Penal Code in that he with another person shared cash, viz., Rs. 2, knowing those rupees to he stolen property, and (2)under Section 414 of the Indian Indian Penal Code in that he assisted in concealing other stolen property. He sentenced the accused to suffer four months rigorous imprisonment under each of these two Secs.411 and 414, and directed the sentences to run consecutively. THE District Magistrate is of opinion that the Second Class Magistrate had no power to pass consecutive sentences for the two offences and has referred the case to us for orders.

(2.) THE Magistrate, in his judgment, has noticed this particular point and he says that the act of receiving the Rs. 2 stolen cash was committed in the afternoon and the act of concealing the other property was committed in the morning of the same day, and that the two acts were also done at different places and in respect of different objects. He, therefore, held that the two offences were distinct and referred to Section 235 in support of his opinion. That section, undoubtedly, allows separate charges at the same trial for these two offences Thus ill (j) to the section specifically refers to the case of offences under Secs.411 and 414 of the Indian Indian Penal Code in respect of the same stolen property. THE District Magistrate says this has no relevance to the question of sentences. He means to refer, no doubt, to Section 85 of the Criminal Procedure Code, but he has failed to notice that that section had been considerably altered in 1923. THE section used to run, "When a person is convicted at one trial of two or more distinct offences, the Court may sentence him" &s., &c. THEre was an explanation that "separable offences which came within the provisions of p. 71 of the Indian Penal Code are not distinct offences within the meaning of this section." THEre was also an illustration under which a person breaking into a house with intent to commit theft and stealing property therein was said not to have committed two distinct offences. But the word "distinct" has been now entirely removed from that section and it begins ; When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Indian Penal Code, sentence him" &c, &c., and the explanation and the illustration have now been repealed THErefore, under the present law it is not even necessary that the offences should be distinct in order to enable a Magistrate to pass consecutive sentences; and the sentences in this case are quite legal subject to the provisions of Section 71 of the Indian Pena\ Code. If the case fell under Section 71, then the Second Class Magistrate could not award a more severe punishment than he could for any one of the offences, and that would, undoubtedly, prevent him awarding more than six months rigorous imprisonment. But, in our opinion, the Magistrate is perfectly right in saying that these were distinct offences, and Section 71 of the Indian Penal Code does not apply. Under these circumstances, we see no sufficient reason to interfere in revision. THE record and proceedings should be returned to the District Magistrate accordingly.