Om Parkash, J.C.
1. This revision petition is directed against an order of the learned Sessions Judge, Mahasu, Sirmur, Bilaspur and Kinnaur Sessions Division, rejecting a revision petition, against the order of the learned Magistrate First Class, Rohru, convicting and sentencing Sangat Ram respondent, under Section 408 I.P.C.
2. Sangat Ram respondent was a salesman of the petitioner society. The President of the petitioner society had lodged an F. I. R., at the Jubbal Police Station, that Sangat Ram had committed criminal breach of trust, in respect of several amounts, totalling Rs. 2102.31 nP., of the petitioner society. After investigation, Sangat Ram was challaned, under Section 408 I. P. C.
3. The learned Magistrate considered the documents, submitted under Section 173 Cr. P. C., with the challan. His conclusion was that the evidence, collected by the police, disclosed an offence, against Sangat Ram, with respect to two amounts namely, Rs. 168.50 nP. and Rs. 791.00, only and that the charge, with respect to the other amounts, totalling Rs. 1142.81nP, was groundless. So, he examined Sangat Ram with respect to the aforesaid two amounts, only. Sangat Earn admitted that he had misappropriated the two amounts. A charge-sheet, under Section 408 I.P.C., with respect to the above two amounts, was framed against him. He pleaded guilty to the charge. The learned Magistrate convicted him, under Section 408 I.P.C. on his plea of guilty, and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100/-. The learned Magistrate, further, directed that the sentence should commence from 'today', meaning thereby that the sentence should commence from the date of his order. At this time of his conviction, Sangat Ram was already undergoing a sentence of imprisonment for an offence, under Section 436 I.P.C. The result of the direction of the learned Magistrate that the sentence, imposed under Section 408 I.P.C., should run from the date of his order, was that the sentence was made to run concurrently with the sentence, under Section 436 I.P.C.
4. The prosecution and Sangat Ram were, apparently, satisfied with the decision of the learned Magistrate. They did not agitate against it. But the petitioner society went up in revision against the decision. Its grievance was that the learned Magistrate went wrong in charge-sheeting Sangat Ram for two amounts only, and not for all the amounts, totalling Rs. 2102.31nP., and that he also erred in making the sentence, under Section 408 I.P.C., to run concurrently, with the sentence, under Section 436 I.P.C. The learned Sessions Judge dismissed tie revision petition, upholding the decision of the learned Magistrate.
5. The petitioner society has come up in revision, to this Court, against the order of the learned Sessions Judge. Notice of the revision-petition was issued to Sangat Ram and to the State. Both, Sangat Ram and the learned Government Advocate have opposed the revision-petition.
6. It was contended, by the learned counsel, for the petitioner-society, that evidence, collected by the police, disclosed that Sangat Ram had committed criminal breach of trust, with respect to amounts, totalling Rs. 2102.31nP. and that the learned Magistrate was in error in charge-sheeting Sangat Ram with respect to two amounts of Rs. 168.50 nP. and Rs. 791.00, only. This contention had been put forward, before the learned Sessions Judge also, but he had rejected it, and in my opinion, rightly. As the learned Magistrate had charge-sheeted Sangat Ram with respect to two amounts of Rs. 168.50nP and 791.00 only, and not with respect to other amounts, totalling Rs. 1142.81nP., Sangat Ram will be deemed to have been discharged with respect to the other amounts. An order of discharge can be interfered with only if it is shown to be unreasonable. The learned counsel for the petitioner society failed to convince mo that the discharge of Sangat Ram, with respect to the other amounts, totalling Rs. 1142.81nP was unreasonable. It was not shown that the learned Magistrate had overlooked any material evidence or had committed any glaring or manifest error, in appreciating evidence, with respect to those amounts. The fact that the prosecution has submitted to the decision of the learned Magistrate lends support to the conclusion that the decision, discharging Sangat Ram for other amounts, was reasonably correct and was not unjust. This Court will not be justified in interfering, on revision, with such a decision.
7. It was, next contended, by the learned counsel for the petitioner society, that the learned Magistrate was wrong in making the sentence, under Section 498 I.P.C., to commence from the date of his order and thus making it to run concurrently with the sentence, Sangat Ram was already undergoing, under Section 436 I.P.C. This contention of the learned counsel appears to have force. Section 397 (1) Criminal Procedure Code provides for the passing of sentence on an offender, already sentenced to imprisonment for another offence. This sub-section lays down that when a person already undergoing a sentence of imprisonment is sentenced, on a subsequent conviction, to imprisonment, such imprisonment shall commence at the expiration of the imprisonment to which he had been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. The words 'unless the Court ...... previous sentence'were added to the sub-section by the Amending Act, 18 of 1923. Prior to the amendment, when an offender was already undergoing imprisonment, a subsequent sentence could commence only on the expiration of the previous sentence. But the addition of the aforesaid words, in 1923, to the subsection, has made it discretionary with the Court to make the sentence consecutive or concurrent with the previous sentence.
The discretion is not to be exercised arbitrarily but judicially. No hard and fast rule can be laid down for the exercise of the discretion. Every case has to be decided on its own facts and circumstances. But speaking generally, and without laying down any rigid rule, it will be a sound exercise of the discretion, under Section 397 (1) Cr. P. C., if the sentence imposed on an offender, at a subsequent trial, who is already undergoing imprisonment for a previous conviction, is made consecutive to the previous sentence, unless there be some special reasons for making the sentence concurrent, e.g. the previous and the subsequent offences are akin or ate intimately connected, vide N.N. Burjorjee v. Emperor, AIR 1935 Rang 456. In the present case, Sangat Ram had been previously convicted for an offence, under Section 436 I.P.C., for setting fire to a building which had resulted in burning many houses and caused damage to the tune of rupees six lacs. He was undergoing a sentence of seven years' rigorous imprisonment for the aforesaid offence when he was tried, convicted and sentenced, under Section 408 I.P.C. The two offences, under Section 436 I.P.C. and Section 408 I.P.C., were not akin or intimately connected. The ends of justice required that the sentence, imposed', upon Sangat Ram, under Section 408 I. P. C. should have been made to commence after the expiry of the sentence, imposed upon him, under Section 436 I.P.C. The learned Magistrate has not given any reasons, whatsoever, for making the sentence concurrent. In my opinion, the learned Magistrate did not exercise his discretion judicially in directing that the sentence, under Section 408 I. P. C., should commence from the date of his order. The sentence should have been made to commence at the expiration of the sentence under Section 436 I.P.C.
8. In conclusion, the revision petition is allowed and the order of the learned' Magistrate ismodified to the extent that the sentence, posed,by the learned Magistrate, under Section 408I.P.C. upon Sangat Ram, will commence after theexpiry of the sentence, imposed upon him, underSection 436 I.P.C. The learned Sessions Judge,will issue an amended warrant in conformity withthe order of this Court.