1. This case has been referred to me because the learned Judge realises that in the, oases of Bhikki, Mihi Lai Gaddar. Karna Kala, Ramdhan, Kanha and Nathi Jat, who had already been convicted of another dacoity by another Sessions Judge and sentenced to various terms of imprisonment amounting in all to 6 years' rigorous imprisonment each, he could neither pass a nominal sentence, nor order an adequate sentence to be served concurrently with the sentences already imposed. He did in fact make an order that the sentences should run concurrently and then referred the case to this Court to enable this Court to revise the order which made the two sentences concurrent, if in the opinion of this Court the said order be not proper according to law.
2. The absence of a provision in the Code enabling a Judge to make sentences in different cases run concurrently is a casus omissus by the Legislature. Section 35 limits the power to a case of conviction at one trial of two or more distinct offences and Section 397 directs that a subsequent sentence shall commence at the expiration of any sentence to which the prisoner has previously been sentenced.
3. There are two ways of dealing with this by the trial Court without sending it to the High Court. The Judge can inflict such sentence as he considers adequate and leave it to the Local Government to make such reduction as they may think fit. I remember myself having four cases in appeal in which the aggregate sentences against one man amounted to 36 years, and the Local Government interfered. On the other hand, if the learned Judge thinks that the previous sentence is adequate to prevent a prisoner from committing further mischief, he may pass a nominal sentence of one day, but I can understand that he is unwilling to do that partly on account of being misunderstood and partly because if the previous case in which the adequate sentence had been passed happened to be upset in appeal, there would be a miscarriage of justice.
4. In this case the learned Sessions Judge has taken the ingenious course of making what, I think, he knew was an illegal order in order to get the assistance of the High Court to put it right. We can do with safety what he could not, namely, pass a nominal sentence.
5. I, therefore, red use the sentence in this particular dacoity on the persons above named to that of one day, to be served when the sentence by the Sessions Judge of Bharatpur expires.
6. I direct that a copy of this judgment be sent to the Local Government with the recommendation which, I think, I have made once before, that if possible the practice which is adopted in England should be followed in India, namely, that Judges should be asked by circulars to take into account, when sentencing a prisoner, any sentence already inflicted upon him, for another distinct offence at a different trial, being already undergone or about to be undergone.