1. (after stating the facts, continued).-The judgment reported in I. L. R., 2 All., 644, was delivered by my brother Straight on the 19th January 1880, when Act X of 1872 was the Code of Criminal Procedure. He did not rule that a conviction and sentence under each of the Sections 380 and 457 of the Indian Penal Code for offences arising out of the same transaction was absolutely illegal, but held that ' in the interests of simplicity and convenience it is best to concentrate the conviction and sentence on the graver offence proved.'' I notice that a similar view was taken by a Full Bench of the Calcutta High Court in their judgment in the case of the Queen v. Ramcharan Kairi, B. L. R., Sup. vol., p. 488. The head-note is as follows: ' The prisoner was convicted by the Magistrate of two separate offences under Sections 456 and 380 of the Penal Code, and sentenced for both. On appeal the Sessions Judge, holding that the offence proved was Under Section 457, ordered a new trial for offences Under Sections 457 and 380. Held that there ought not to be a new trial, but that the' conviction and sentence Under Section 380 should be set aside.' And Peacock, C.J., in a judgment concurred in by the other learned Judges, observed: 'The Magistrate should be cautioned to be more careful in future, and not to split up one single aggravated offence into separate offences.' The judgments above referred to of the Bench of the Bombay High Court were delivered by Birdwood and Jardine, JJ., on the 25th February 1887, that is, since the present Criminal Procedure Code, Act X of 1882, has been in force, and certain alterations have been made in the Code as pointed out by the above-mentioned learned Judges. Illustration 6 to paragraph I of Section 235 shows that if 'A commits house-breaking by day, with intent to commit adultery with B's wife, A may be separately charged with and convicted of offences Under Sections 454 and 497 of the Indian Penal Code.' It admits I think of no doubt that 4he Joint Magistrate might, with reference to the provisions of Sections 35 and 235 of the Criminal Procedure Code, have tried and convicted Zor Singh for housebreaking in order to commit theft and for theft, and might have sentenced him under the first part of Section 454 of the Penal Code to two years' rigorous imprisonment for house-breaking and Under Section 379 of the same Code to two years' rigorous imprisonment for theft. Moreover I am of opinion that the sentences as passed were not illegal, but the best course to have adopted would, in my opinion, have been that which is usual in such cases, viz., to have committed the accused for trial to the Court of Session, Under Sections 454-75 of the Indian Penal Code. Although I consider that a Magistrate might legally pass a separate sentence of two years' rigorous imprisonment and fine under each of the Sections 379 or 380 and 454 of the Penal Code, I nevertheless think that, were a Sessions Judge trying such a case under the same sections, he would, under no circumstances, be justified in passing a sentence of ten years' imprisonment under the latter part of Section 454 for house-breaking with intent to commit theft, and, with reference to the provisions in Section 35 of the Criminal Procedure Code, of four years' imprisonment Under Section 380 for theft in a building, for it appears to me obvious that this could not have been the intention of the Legislature. The offences punishable Under Sections 454 and, 457 of the Penal Code are, with the exception that the former is committed by day and the latter by night, precisely the same. The latter part of each section enacts that, if the offence intended to be committed is theft, the term of imprisonment may be extended from three and five years to ten and fourteen years respectively. An intent to commit theft would not be punishable until after lurking house-trespass, or house-breaking, had been committed. It is evident that the Legislature never meant that a house-trespasser or house-breaker should be liable to seven and nine years' additional imprisonment, merely because he intended to commit theft. The latter portion of each of those sections was obviously framed to include the cases of house-trespassers and house-breakers who had not only intended to commit theft, but had actually committed that offence. To sentence a house-trespasser or house-breaker to the enhanced punishment of ten years' imprisonment under the latter part of Section 454, because he intended to commit theft, and to sentence him also Under Section 380 to four years' imprisonment, or any other punishment for theft in a building, would virtually be to punish him twice for the same offence, and would be grossly unjust. Had the Joint Magistrate in the exercise of a wise discretion adopted the course I have above mentioned, that is, had committed Zor Singh Under Sections 454-75 of the Penal Code to the Court of Session, there would have been no ground whatever for this reference, I think for the reasons recorded by my brother Straight in Queen-Empress v. Shere Singh I. L. R., 9 All., 362, that references such as this, by a Magistrate against the order passed in appeal by his superior officer, the Sessions Judge, are generally inconvenient and undesirable, and are only justifiable in very special cases; and having regard to all the circumstances of the case, I do not think that any interference in revision is necessary in the present instance.
2. I entirely concur in the view of my brother Brodhurst, that this is not a case in which we should interfere. Let the Magistrate be so informed.