1. This is a reference made by the Sessions Judge of Mainpuri. He has submitted the case with a request that the convictions and sentences of all the applicants may be quashed. The applicants are Makhan, Sultan, Nathu and Chiranji, and the order which I am asked to revise is dated 19th October 1917 whereby these persons save Chiranji were sentenced to one month's rigorous imprisonment and Chiranji was sentenced to pay a fine of Rs. 25 and in default of fine to undergo one month's rigorous imprisonment. The reason given are that the concurrent sentences passed on Makhan and Sultan are illegal. On reference to the record it appears that Makhan and Sultan were convicted under Ss. 325 and 323 for assaulting two other persons on the same occasion. It further appears that at another trial, in which sentence was passed on the same day as in the case under referenae, they were tried and sentenced for another offence. The Magistrate in the case under reference directed that the sentences of imprisonment should run concurrently with those passed in the other case. The learned Judge considers that this order was illegal, I fail to see that it was illegal. Apparently the learned Judge had in his mind Section 397 of the Cr PC, but that refers only to the case of persons who are already undergoing a sentence of imprisonment. It is true that the sentence of imprisonment had been pronounced in the second case; but until an accused has actually passed into the jail I am not prepared to hold that he was undergoing a sentence of imprisonment. I find that the Bombay High Court in the case of Emperor v. Mahomed Isaf Habib (1) held that such an order was not illegal. The learned Judges there say that the trials took place on one and the same day and one after the other, so it was for all practical purposes one trial.
2. The next reason which the learned Judge assigns is that the case should not have been tried separately from the case in which Ajudhia and Hukum Singh were the principal accused. There was only one assault according to the learned Judge.
3. The complainant's case was that he was waylaid by certain persons who beat him and were carrying him off, when other persons arrived on the scene to help him. These were then assaulted in turn by two of the original assailants of the complainant and two other friends of theirs. Legally two, if not more, offences were committed and the two assaults were two separate transactions. The third reason given is that the learned Sessions Judge has held that the other case was not brought home to Sultan. It by no means follows that this case was a false one. The fourth reason is that the case should be doubted as being an afterthought, mainly because these persons were not mentioned in the first report. I am not satisfied that there has been any case in which I ought to interfere. I set aside the reference and direct that the record be returned.
V.B/R.K
4. Reference rejected.