1. The petitioners in this case have been convicted on the following charges: First, that they on the 25th September 1924, committed house breaking at night entering into the dwelling hut of the complainant by cutting sindh with intent to commit theft and thereby committed an offence punishable under Section 457, Indian Penal Code; secondly, that they on the same day of September 1924 committed theft of money and ornaments valued about 1,500 Rupees from the dwelling hut of the complainant and thereby committed an offence punishable under Section 380, Indian Penal Code. On their conviction on the first charge they have been each sentenced to rigorous imprisonment for four months and a fine of Rs. 100. On their conviction on the second charge they have been sentenced to rigorous imprisonment for two months and a fine of Rs. 200 each, and the sentences of imprisonment have been ordered to run one after the other.
2. This Rule has been issued calling on the District Magistrate to show cause why one of the separate sentences passed on the petitioners should not be set aside.
3. The point we have to decide is as to the legality of the separate sentences. The law as to the legality of the separate sentences on conviction at one trial for two offences is to be found in Section 35, Criminal Procedure Code read with Section 71, Indian Penal Code. Section 35 has been materially altered by the recent amendment of the Code. In the Code of 1898, Section 35 commences with the following words: 'When a person is convicted at one trial of two or more distinct offences.' These words have been altered and the section is now as follows: 'When a person is convicted at one trial of two or more offences the Court may subject to the provisions of Section 71 of the Indian Penal Code sentence him for such offences to the several punishments prescribed therefore which such Court is competent to inflict.' Another important alteration that has been made is that the Explanation and Illustration which were found in the Code of 1898 have now been repealed. Those were as follows: Explanation: ' Separable offences which come within the provisions of Section 71 of the Indian Penal Code are not distinct offences within the meaning of this section.' Illustration: 'A breaks into a house with intent to commit theft and steals property therein. A has not committed distinct offences.' It would seem therefore that under the Code of 1898 the Court would not have had power to punish the offender for more than one of these offences. But under the present Code no reference is made to distinct or separable offences, and it is not necessary to consider whether the offence of house breaking with intent to commit theft and the commission of theft after such house-breaking are distinct offences. For the application of Section 35 we have now only to consider whether the offences are of the nature described in Section 71 of the Indian Penal Code so that the punishment for more than one of the offences is forbidden by that section. Section 71 is in the following terms. The first paragraph provides: 'Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.' It cannot be said that either the house-breaking by night with intent to commit an offence or theft from a dwelling house are offences made up of parts. The offence of house breaking with intent to commit theft is complete as soon as the house-breaking with that intent is committed. The offender would be liable to conviction even if he was frightened away after breaking into the house without committing theft. Also theft from a dwelling house can be committed without breaking into the house. The next paragraph of Section 71 is as follows: ' Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are punished.' Here there is no case of offences falling within two or more separate definitions. The third paragraph is: ' Where several acts of which one or more than one would, by itself or themselves, constitute an offence constitute when combined, a different offence.' Here also the several acts of house breaking and theft when combined do not constitute a different offence. The case is not covered by the last two paragraphs with reference to which it is provided that the offender shall not be punished with a more severe punishment than the Court which tries him can award for any one of such offences.
4. It would, therefore, appear that there is nothing in Section 71 of the Indian Penal Code that in any way restricts the power of Court under Section 35 of the Code of Criminal Procedure of 1923, and under that section the punishments for two offences of which a person is convicted at one trial are to commence one after the expiration of the. other unless the Court directs that such punishments shall run concurrently.
5. The case-law on this point has been rendered obsolete by the amendment of the Code. It is therefore not necessary to discuss it. But as an illustration of this point we may refer to two oases. One is the leading case, the decision of a Full Bench of the Bombay High Court: Queen-Empress v. Malu (1899) 23 Bom. 706, The decision in that case is clearly based on the illustration and explanation added to Section 35 of the Code of Criminal Procedure of 1898 as is stated at the commencement of the judgment. I may also refer to the case of Sarat Chandra-Ghosh v. Emperor A.I.R. 1923 Cal. 408 to which I was a party. The decision in that case was also based on a consideration of the provisions of Section 35 as to distinct offences and the illustration to that section.
6. I hold, therefore, that under the present law there is no illegality in passing separate sentences for the two offences and in directing that the sentences of imprisonment shall run one after the other. The Rule is discharged.