Harak Narain v. Emperor

Tudball, J.:— Criminal Revisions Nos. 390, 691 and 692 are connected with each other and also with Criminal Revisions Nos. 757, 758 and 759. Three persons Harakh Narain, Baij Nath and Raghunath were prosecuted for three separate acts of criminal trespass. They were tried at three separate trials and convicted by the Magistrate at each trial. For each separate offence they were sentenced to four days' rigorous imprisonment each on the same date. The trying Magistrate subsequently added to his three judgments on the same date the following order:— “The sentences to run from to-day.” Evidently it was his desire that the three sentences should run concurrently. An appeal was preferred and the appellate Court has dismissed all the appeals. At the hearing of the appeals it was pointed out to the appellate Court that the order of the Magistrate added by him after delivery of his judgment in each case was clearly beyond his power, inasmuch as there had been three separate trials and under the law set out in Section 397 of the Cr PC the sentences could only run consecutively, and that section 35 did not give the Court power to direct them to run concurrently inasmuch as section 35 relates to sentences in cases of convictions of several offences at me trial.

2. The appellate Court, however, thought that the first Court's order was correct and maintained it. Both parties have come to this Court in revision. I taka first the three revisions filed on behalf of the accused persons.

3. So far as the Act of criminal trespass is concerned it is urged that the applicants acted in good faith end cannot be said to have been guilty of any of the intentions set forth in section 441. In view of the facts which are set forth in the judgments of the Courts below I do not think that there can be any doubt whatsoever that the offence of criminal trespass was committed in each case. It is next urged that a sentence of imprisonment is unnecessary and that a sentence of fine would meet the justice of the case as it is clear that the parties to these cases are merely tools in the hands of the Raja of Baraon and his cousin, who are at loggerheads in respect to the estate. I think that this is the correct and proper view to take. I maintain the conviction in each case but I reduce the sentence of 4 days' imprisonment to one of a fine of Rs. 10 in each case and for each accused. In default of payment of fine there will be two days' rigorous imprisonment each.

4. The order that I pass in these three revisions therefore makes it unnecessary to pass any further order on the other three revisions, Nos. 757, 758 and 759, but I must point out to the lower appellate Court that its opinion on the point raised in those revisions was incorrect. There being three separate trials there were three separate sentences, which have to be served under section 397 one after the other. If the three cases had been tried together at one trial and the three charges investigated at one and the same trial instead of three separate trials, the Magistrate would have had power to direct the sentences to run concurrently, but the facts being otherwise his order is illegal.

5. Order modified.