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Emperor v. Subrao Sesharao Accused.
Factual and Procedural Background
The accused was convicted under section 380 of the Indian Penal Code for two separate acts of theft. The Magistrate sentenced the accused to rigorous imprisonment for one day and a fine of Rs. 50, or in default, rigorous imprisonment for three months, for each offence. The Magistrate further directed that the two sentences should run concurrently. The Superintendent of the Jail raised a question regarding whether the sentences of imprisonment in default of payment of the fine could run concurrently. This question was referred to the court by the District Magistrate.
Legal Issues Presented
- Whether sentences of imprisonment in default of payment of fines for two or more offences can run concurrently under the Indian Penal Code and the Criminal Procedure Code.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Emperor v. Akidullah | Held that section 35 of the Cr PC did not permit concurrent sentences of imprisonment in default of fines for multiple offences. | The court agreed with this ruling and relied on it to conclude that concurrent sentences in default of fines cannot be imposed. |
Court's Reasoning and Analysis
The court analyzed section 64 of the Indian Penal Code, which allows imprisonment in default of payment of a fine but requires that such imprisonment "shall be in excess of any other imprisonment" the accused may be serving. This statutory language implies that imprisonment in default of fines cannot run concurrently with other terms of imprisonment. The court noted that section 35, sub-section (1) of the Criminal Procedure Code authorizes concurrent sentences only in cases of imprisonment or transportation, not fines or imprisonment in default of fines. The court further reasoned that concurrent imprisonment in default would create difficulties in apportioning part payments of fines under section 69 of the IPC. Since the imposition of imprisonment in default is discretionary under section 64, a Magistrate may avoid concurrent imprisonment by refraining from imposing multiple default sentences concurrently. The court thus agreed with the District Magistrate and Government Pleader that concurrent imprisonment in default of fines is not permissible.
Holding and Implications
The court quashed the Magistrate's direction that the sentences of imprisonment in default of payment of the fines should run concurrently, except for the one day's rigorous imprisonment imposed for each offence.
The decision directly affects the sentencing procedure for multiple offences involving fines and imprisonment in default, clarifying that such default imprisonments must run consecutively rather than concurrently. No new precedent beyond this clarification was established.
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.
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