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Present: Pereira J.
WANNIGASURIA v. SILVA.
P. C. Ckilaw, 36,705.
Imprisonment for not giving security to be of good behaviour—Subsequentconviction .of accused for not reporting himself to Police—Section321, Criminal Procedure Code, does not apply—The terms ofimprisonment runs concurrently.
Where a person was condemned to undergo six months’ rigorousimprisonment for default of giving security for good behaviour,and was subsequently sentenced to undergo one month’s rigorousimprisonment for having failed to report himself to the Police(under section 9 of Ordinance No. 7 of 1899), and the Magistratedirected (in the warrant of commitment) that the term of onemonth’s imprisonment should take effect after the expiry of theterm of imprisonment to which accused was condemned in theearlier proceeding—
Held, that the order directing the second term of imprisonmentto take effect after the first was irregular. The imprisonmentcontemplated by section 321 of the Criminal Procedure Code isimprisonment consequent upon a formal “ sentence ” on convic-tion, and does not include imprisonment to. which a person iscondemned in proceedings such as those under chapter VII. of theCode.
HE facts are set out in the judgment.
Oarvint Acting S.-G., in support of application.—The order thatthe sentence of imprisonment for the offence under section 9 ofOrdinance No. 7 of 1899 should take effect after the expiration
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of the period for which the accused was committed to prison forfailure to give security for being of good behaviour is ultravires. Section 321 of the Criminal Procedure Code contemplatesa case where the accused who was undergoing imprisonmenton conviction for an offence is sentenced again for anotheroffence. It does not apply to a case of a person undergoingimprisonment for failure to give security under chapter VII. of theCriminal Procedure Code being sentenced for an offence. In thiscase the sentence of imprisonment for the offence takeB effectat once. A person committed to prison for failure to give securityunder chapter VII. is not sentenced to imprisonment. Counselcited Joghi Karmigan v. Emperor,1 Emperor v. Muthukumara*
No appearance for the respondent.
Cur. adv. vult.
April 7, 1913. Pereira J.—
The accused in this case was, in case No. 5,553 of the Police Courtof Puttalam, on November 6, 1912, condemned to undergo sixmonths* rigorous imprisonment for default of giving security forgood behaviour. The order was apparently made under section 93of the Criminal Procedure Code. Thereafter, that is to say, onNovember 11, 1912, he was convicted in the present case of havingfailed to report himself to the Police, as a person subject to policesupervision, an offence punishable under section 9 of OrdinanceNo. 7 of 1899, and sentenced to undergo one month’s rigorousimprisonment.
The Attorney-General now moves that this latter sentence bedealt with in revision in. so far as it directs that the period of impri-sonment to which the accused is sentenced should take effect afterthe expiry of the term of imprisonment to which the accused wascondemned in case No. 5,553 of the Police Court of Puttalam. Iconfess I can see no such direction in the sentence in the present'case, but, inasmuch as the question involved in the Attorney-General’s application, assuming that the facts were correctly statedin it, was fully argued before me by the Solicitor-General, I shallexpress my opinion thereon, but shall make no order until, theSolicitor-General points out to me the obnoxious direction that theAttorney-General complains of.
The Solicitor-General’s argument's that the “ imprisonment ”contemplated by section 321 of the Criminal Procedure Code isimprisonment consequent upon a formal “ sentence ” on conviction,and does not include imprisonment to which a person is condemnedin proceedings such as those under chapter VIE. of the CriminalProcedure Code. On a careful consideration of the question, I aminclined to agree with him. The section speaks of “ imprisonment
i31 Mad. 615.
* 27 Mad. 525.
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to which a person is sentenced.*’ The concluding words of thesection, '* to whick he has been previously sentenced,” refer ofcourse to the imprisonment first mentioned in the section. Thesection is one of a chapter dealing with ** sentences and the carryingput thereof,” and, in my opinion, the imprisonment contemplated4s imprisonment involved in a sentence contemplated by sections,13, 14, and 15 of the Criminal Procedure Code, which presumablyrefer to sentences, on formal convictions of offences, on regularcharges made before the Courts referred to. Section 98 speaks of aperson being ” committed to prison,” and not of being •* sentencedto imprisonment.” Section 397 of the Indian Code of CriminalProcedure is in terms similar to those of section 321 of our Code,and the view that I have taken above is supported by the . decisionsin the cases of Joghi Karmigan v. Emperor,l Emperor v. Muthu-kumara,2 and Ven Katigadu v, Emperor* although the decision inEmperor v. Tula Khan 4 may be cited on the other side.
As stated above, I shall make no order until I have heard theSolicitor-General again.
April 8, 1913.
The Acting Solicitor-General now informs me that there is amistake in the motion originally filed. There is no such directionas is referred to above in the sentence. The direction is in thewarrant of commitment issued by the Magistrate to the Fiscal.
The Magistrate will recall the warrant and rectify it in terms of' the above decision.
181 Mad. 615.3 87 Mad. m.
* S Weir 455.*3 ill. 384.
WANNIGASURIA v. SILVA