C.S. Row Nayudu, C.J.
1. The petitioners in the instant case had been convicted by the trying Magistrate under Sections 447 and 325 read with Section 34 of the Indian Penal Code and sentenced on each of the counts to undergo rigorous imprisonment for three months and a fine of Rs. 100 in default to rigorous imprisonment for another one month. The Magistrate directed that the sentence will run concurrently.
2. On appeal, the learned Sessions Judge confirmed the conviction of the petitioners under Section 447 but altered the conviction under Section 325 to one under Section 323 of the Indian Penal Code, as he felt that there was no proof that grievous hurt had been inflicted, and accordingly sentenced the petitioners to pay a fine of Rs. 50 each on each of the counts,
3. It is contended by Mr. Choudhuri, the learned Counsel for the petitioners, that as the Magistrate had directed that the sentence shall run concurrently without specifying that what he was referring to was a sentence of imprisonment. the petitioners were bound to suffer only three months' imprisonment and pay one fine of Rs. 100 under the Magistrate's judgment. He further contended that on their own appeal, the sentence against the petitioners could not have been altered to their prejudice, and that, therefore, the learned Sessions Judge by converting the sentence to a consecutive sentence imposed an additional sentence of fine which was not there. It is contended by the learned Government Advocate that there was no enhancement of sentence in this case as the total fine imposed by the learned Sessions Judge was Rs. 100 even as a consecutive sentence whereas the learned Magistrate had imposed separate fine of Rs. 100 but made them to run concurrently, and, therefore, the petitioners could not have been prejudiced by the order of the learned Sessions Judge.
4. The point for consideration in this case is not whether the petitioners had been prejudiced but whether there was jurisdiction or not. To start with it has to be pointed out that the learned Magistrate was wrong in declaring that the sentence will run concurrently without specifying that what he was referring to was a sentence of imprisonment, because a Court has power- to pass a concurrent sentence under Section 35 of the Code of Criminal Procedure, which only refers to a sentence of imprisonment, apart from the absurdity of contending that two sentences of fine could run concurrently, resulting in one fine having to be paid.
It is clear that under law there can be no question of a concurrent sentence of fine at all. Every sentence of fine that is imposed on any count has to be a separate liability on the convicted person and the fine is payable. Thus the learned Magistrate acted wrongly in declaring the sentence to run concurrently without specifying that what he was referring to was the sentence of imprisonment. Since there is a clear doubt in the matter and ambiguity, this has to be resolved in favour of the accused persons. So that the sentence of the learned Magistrate could only be construed as amounting to one sentence of fine of Rs. 100 and the sentence of imprisonment for three months on each of the counts running concurrently. The net result is that the accused-petitioners would have to suffer only three months' rigorous imprisonment and would have to pay only Rs. 100 on both counts.
The learned Sessions Judge removed the sentence of imprisonment altogether on each count and imposed separate sentence of fine of Rs. 50 on each count. Although the total fine payable by the accused persons is only Rs. 100 each and has not been enhanced by the learned Sessions Judge, the conversion of a concurrent sentence of fine to a consecutive sentence of fine is in the nature of an enhancement, irrespective of the amount of fine involved. That jurisdiction the learned Sessions Judge has not got. It would have been a different matter if the matter would have come an appeal or in revision in this Court, as this Court has power of passing just and proper sentence, and where the sentence requires to be enhanced, to do so after giving adequate opportunity to the accused to show cause. Such a power does not vest in the Sessions Judge. This being the case, the passing of a consecutive sentence of fine was beyond the jurisdiction of the learned Sessions Judge. Hence the proper order to make in the circumstances would be to alter the sentence of fine to one of Rs. 50 payable in respect of the charge under Section 323 Indian Penal Code. There shall be no separate sentence of fine under Section 447. Indian Penal Code.
5. It is contended by Mr. Choudhuri that as there is no finding of possession in this case, and essentially, a charge under Section 447 Indian Penal Code involves commission of an offence against possession, the conviction is bad. The learned Magistrate had apparently discussed the matter and it is a pure question of fact. I, therefore, do not propose to go into the examination of this question of fact. But as I have already removed the sentence of fine under that section, no further order in the matter is necessary.
6. The conviction passed by the learned Sessions Judge is accordingly confirmed but the sentence is reduced to one of Rs. 50 on the charge under Section 323 Indian Penal Code, there being no separate sentence under Section 447. Indian Penal Code.