S.K. Ray, J.
1. These are two applications in revision by the State against the order dated 25.4.68 of Shri D. Kanungo, Magistrate II Class, Koraput, passed in G.R. Cases Nos. 72 and 73 of 1966, in which one common judgment was passed.
2. In both the cases the accused person is the same. He was convicted in both the cages under Section 380/75, I.P.C. and sentenced to undergo R.I. for 3 months and 5 days. The accused was taken to jail custody on 1.2.66 and remained in the custody till the date of judgment. The Magistrate, while sentencing him to undergo R.I. for a period of 3 months and 5 days, directed that the sentence be computed from the date when he was taken to the jail custody, that is to say, the sentence was directed to run with effect from that date. According to the Magistrate's direction the sentence expired on 6.5.68.
3. The learned Counsel for the State has urged that this direction of the Magistrate making his order operative retrospectively is without jurisdiction. In my view, this point is well taken up Section 367, Sub-section (2) Cr.P.C. provides that the judgment shall specify the punishment to which the accused is sentenced, which means the sentence of imprisonment awarded ought to commence from the time the sentence is passed and commencement of sentence cannot be antedated. The Code of Criminal Procedure does not provide for antedating the sentence. Sections 383, 384 and 400 of the Code criminal Procedure provide that the Court passing the sentence shall issue a warrant for execution of the sentence passed and after full execution of the sentence the officer executing the warrant shall return it to the Court.
It is thus clear that the entire sentence passed must be executable, which means that no sentence can be passed which is unexecutable. Thus it is clear that commencement of sentence cannot be antedated which will amount to passing an unexecutable sentence. Therefore no Magistrate can have any jurisdiction to convert, by his order, the jail custody of an under trial prisoner into a period of punishment awarded in his judgment. The only proper course to which the Magistrate is entitled, if he wanted to take a sympathetic view having regard to the long period of his jail custody, is to pats a lesser sentence taking the period of custody as an under-trial prisoner into consideration. If he had done that, there should have been no illegality in the matter.
4. That the Magistrate has no such jurisdiction to direct that any portion of the period of detention as an untertrial prisoner should be counted as a part of the sentence is supported by a decision repotted in AIR 1923 Lab 104, Dangar Khan v. Emperor which has been cited before me.
5. To regularise the matter, while setting aside the order of the Magistrate under revision the sentence is reduced to the post judgment period of 11 days already undergone. The revisions are accordingly allowed subject to the aforesaid observation.