Fawcett, J.:— In this case the accused was convicted under section 380, Indian Penal Code, in respect of two separate acts of theft, and no was sentenced to suffer rigorous imprisonment for one day and to pay a fine of Rs. 50, or in default to suffer rigorous imprisonment for three months, for each of the two offences. The Magistrate further directed that the two sentences should run concurrently.
2. The question is raised by the Superintendent of the Jail, in which the accused was confined, whether the sentences of imprisonment in default of payment of the fine could run concurrently. The Jail Superintendent on the authority of section 64, Indian Penal Code, and a Government Resolution No. 5851, dated October 26, 1888, Judicial Department, was of opinion that they could not run concurrently. The District Magistrate has referred the question to us.
3. The only judicial authority on the point that has been brought to our notice is the case of Emperor v. Akidullah(1), where it was held that section 35 of the Cr PC, did not permit the passing of concurrent sentences of imprisonment in default of fines imposed for two or more offenoes. It was remarked in the course of the judgment:—“In case of part payment of the fine it would be difficult to estimate what portion of which term of imprisonment should terminate under section 69, Indian Penal Code.” We agree with this ruling. Section 35, sub-section (1), only authorises concurrent punishments in the case of imprisonment or transportation. It does not for instance authorise concurrent fines. And a Magistrate, if he wants to make the fine for a second or further offence extremely light, in consideration of the fine already imposed for another offence, can easily make it nominal. Then if a Magistrate imposes a sentence of imprisonment in default of payment of fine under section 64, Indian Penal Code, the provisions of that section require that term of imprisonment “shall be in excess of any other imprisonment to which he may have been sentenced.”
4. This implies that it cannot be made to run concurrently with another term of imprisonment. Then, as pointed out in the Sind ruling, a difficulty will arise in regard to the apportionment of a part payment of fine against the term of imprisonment in default under section 69, Indian Penal Code. Moreover, it is not incumbent upon a Magistrate to impose a term of imprisonment in default. Section 64 merely says that “it shall be competent to the Court” to pass such a direction, and if the Magistrate wants to avoid giving a second term of imprisonment in default, he can refrain from making a direction under that section. Therefore we agree with the view put forward by the District Magistrate and supported by the learned Government Pleader.
5. We accordingly quash the direction of the Magistrate under section 35 of the Cr PC, that the sentences should yin concurrently, except so far as it covers the one day's rigorous imprisonment imposed for each of the two offences.
6. Reference answered in the affirmative.