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Report No. 37

161. Section 33 and suggestion to make the section self-contained.-

With reference to section 33, the following suggestion1 has been made by a High Court Judge:

"Section 33 relating to imprisonment on default of fine, may be amended so as to make it self-contained, by including the provisions in sections 64 to 68, Indian Penal Code". We studied the statutory provisions referred to. With great respect, we are unable to accept the suggestion.

The attempt to combine section 33 of the Code of Criminal Procedure with sections 64 to 68 of the Indian Penal Code is, it seems to us, likely to make section 33 cumbersome. Moreover, the topics dealt with in the two sets of provisions, though connected, are different.

The Code of Criminal Procedure focuses attention on the powers of particular classes of Courts, while the Indian Penal Code deals generally with the liability of the offender to the punishment of imprisonment in default.

1. F. 3(2)/55-L.C., Pt. III, S. No. 49(a).

162. Provision for consideration after section 33-Life imprisonment.-

With reference to life imprisonment, certain State Governments brought it to the notice of the Government of India,1 that owing to the repeal of section 58 of the Indian Penal Code by the Code of Criminal Procedure (Amendment) Act, 1955, there is a lacuna as to how the persons sentenced to imprisonment for life should be treated while in jail. Attention has also been drawn to the following observations2 in criminal appeal No. 120 of 1956 (Kerala High Court):

"Section 302 as amended by the schedule to the Code of Criminal procedure (Amendment) Act, 1955 (Central Act 26 of 1955) only states that alternative punishment for murder shall be 'imprisonment for life' and not rigorous imprisonment for life or simple imprisonment for life The court passing sentences have however to keep in view the provisions of section 60 of the Penal Code and choose one or the other from in view of all circumstances.

Recently we had another instance where the Sessions Judge had failed to specify whether imprisonment for life awarded by him was rigorous or simple. In that case the Inspector-General of Prison has sought our direction as to what description of imprisonment the prisoner should be made to undergo. Here we clarify the position by stating that the imprisonment for life in this case shall be simple imprisonment and not rigorous".

Now, it has been suggested, that considering the nature of offences for which imprisonment for life is awarded, it is desirable that the imprisonment for life should be rigorous, and should only be amenable to such concessions in special case of illness, old age, etc., as the Prisoners Act and the Prison Rules may permit. We have examined the suggestion. We think that the matter pertains to the Indian Penal Code,3 and can be more conveniently considered under that Code.4

1. F. No. F. 3(2)/55-L.C., Pt. VII, S. No. 272.

2. The decision is reported in AIR 1957 Ker 102 (103).

3. See also Urlikia v. State, AIR 1964 Ori 149 in this connection.

4. To be considered under the Indian Penal Code.

163. Section 34.-

It is unnecessary to add the word "Judicial" before the word "Magistrate" in section 34, having regard to the context.

164. Section 35.-

Section 35, inter alia, contains a provision as to sentences of imprisonment, to the effect that such sentences (when passed on conviction for several offences at the same trial) shall run consecutively, unless the Court directs that they shall run concurrently.

Now, a High Court Judge1 has suggested the insertion of a provision to the effect that the normal rule should be that the punishment of imprisonment is cumulative and not consecutive. We have given anxious thought to this suggestion. The matter, we are afraid, cannot be made so rigid. History of the section and the case law on the subject were gone into by us. We are of the view that, on principle, the matter should be elastic, and that is the true import of the existing provision. If the court does not direct that the sentence shall run concurrently, then it is to be regarded as consecutive, under the existing provision. But, the main question-i.e., in what cases the Court can give a direction is left-and rightly so-to the discretion of the Court.

1. F. No. 3(2)/55-L.C., Pt. II, S. No. 33(a).

165. In section 35(1), the words "unless the court directs that such punishment run concurrently" were added at the Select Committee stage in 1898, for these reasons.1

"15. Clause 35.-On the recommendation of the High Court, North-Western Provinces, we have empowered Courts in India, as in England, to pass concurrent, as well as consecutive, sentences of transportation and imprisonment. The effect of this change will probably be to mitigate sentences and at the same time also to discourage frivolous appeals

1. Report of the Select Committee, dated 16th February, 1898.

166. The High Court of North-Western Provinces made the following suggestion when the Bill of 1897 was under consideration:1

"28. Section 35. Under this section concurrent sentences cannot be passed. This Court is strongly of opinion that a court should have the power, when a person is convicted at one trial of two or more distinct offences in respect of each of which a sentence of imprisonment or transportation is passed, to order that the sentences shall be concurrent or consecutive, as to the court may seem right. This could be effected by the addition to sub-section (1) of section 35 of the words "unless the court directs that such punishment shall run concurrently". The power to pass concurrent sentences is frequently used by the courts in England, and it is a useful power. Section 240 provides a cumbrous and dilatory procedure in the case of two charges."

1. Letter dated 13th December, 1897 of the High Court of North-Western Provinces to the Secretary to Government, North-Western Provinces and Oudh, Pt. II, para. 28 (Legislative proceedings, April 1898, Nos. 24-128, in the National Archives, relating to the Code of Criminal Procedure, 1898).

167. As the Code stood before 1882, concurrent sentences could not be passed.1

In the Code as it stood before 1898, the power to pass concurrent sentences was absent, and the Allahabad High Court, in a very early case,2 regretted this omission. Hence, in the 1898 Code, this provision was inserted.

1. Emp. v. Vazir Jan, ILR 10 All 58.

2. Ishri, 1897 ILR 20 All 1 (FB).

168. The point now to be considered has been elaborated by Desai J. thus1-

"Then the learned Magistrate has passed concurrent sentences without giving any reason and apparently without even applying his mind to the question. I find that Magistrates invariably make the several sentences concurrent without exercising any discretion in the matter. It is laid down in section 35 of the code that one "sentence of imprisonment will commence after the expiration of the other sentence of imprisonment unless the Court directs that such sentences shall run concurrently. Obviously the normal rule is that the sentences should be consecutive, and they may be made to run concurrently only if there is some reason.

Whether the sentences should run consecutively or concurrently is left to the discretion of the Court, but the court must exercise its discretion judicially. It must not exercise it arbitrarily, and must not on every occasion blindly order the sentences to run concurrently as if there were no alternative; but this is done by nearly every Magistrate. I scarcely remember even one instance in which a Magistrate ordered two sentences to run consecutively.

In the present case there was no justification for ordering the sentences, which themselves were inadequate, to run concurrently; the applicants should have been punished cumulatively for the different offences committed by them. I would have very much liked to make the sentences consecutive, but I am not sure if I can do so without a notice of enhancement having been given to the applicants. I am inclined to the view that making the sentence run consecutively instead of concurrently does not amount to enhancement. But this question was not argued at the Bar, and as I am not quite certain that it does not amount to enhancement. I would refrain from making the alteration."

Sentences are usually ordered to run concurrently when the two offences are akin or intimately connected with each other.2 Sentences passed in separate trials cannot, of course, be ordered to run concurrently.3

1. Khuda Bux v. State, AIR 1951 All 637 (649).

2. N.N. Burjoriji v. Emp., AIR 1935 Rang 456 (458).

3. King Emp. v. Nag Sein, AIR 1923 Rang 198.

169. Section 35 and suggestion of U.P. Committee.-

It has been suggested by the U.P. Committee,1 that sentences should normally run consecutively, and they should be made to run concurrently only for good reasons to be recorded by the Court.

We have already expressed our view while considering a similar suggestion made by a High Court Judge.2

1. F. 3(2)55-L.C., Pt. VII, S. No. 449, Suggestion of the U.P. Committee for Investigation of the Causes of Corruption in Subordinate Courts in Uttar Pradesh, (1963), Report p. 40, Bill at p. 224.

2. See discussion relating to section 35.

170. Sections 36 to 38.-

In sections 36 to 38, which deal with the conferment of Magisterial powers, the following changes are necessary:-

(a) Mention of the Chief Judicial Magistrate should be added, after 'District Magistrate'.

(b) Further, in view of separation, the conferment of powers should be by the High Court, which should be substituted in place of the State Government.

(c) For abundant caution, and for covering conferment of powers under other laws, it would be desirable to adopt section 38A, Punjab Amendment which has followed section 38A, Bombay Amendment, with suitable modifications.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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