John Beaumont, Kt., C.J.
1. This is an application by Government to enhance the sentence passed upon the accused.
2. On August 14, 1940, the Commissioner of Police made an order for externment of the accused under Section 27(2A) of the City of Bombay Police Act. The order was duly served on the accused, and on August 16, he was given a ticket for the place to which he was going and was seen out of Bombay. But on September 23 he was found to have returned to Bombay and was accordingly arrested and put up before the learned Magistrate, Fourth Court, on a charge under Section 128 of the City of Bombay Police Act, 1902. That section provides that--
Whoever, within two years from the date of his removal under the provisions of Section 27 ... enters the City of Bombay, without the permission in writing of the Commissioner of Police, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.
3. The learned Magistrate convicted the accused, who had pleaded guilty, and sentenced him to two months' rigorous imprisonment. The Government of Bombay have applied to us to enhance the sentence. The learned Magistrate has submitted a statement to this Court under Section 441 of the Criminal Procedure Code in which he gives the grounds on which he acts in determining the proper sentence in cases of this sort, and we are indebted to him for so doing. He enumerates five factors which he takes into consideration in determining what sentence to impose. The first factor, which is the only one calling for serious comment, is the number of previous convictions (i.e. those justifying the deportation order) and the importance or the gravity of the offence in respect of each such conviction as disclosed by the quantum of punishment which the Court may have awarded in the case. In my opinion, those are not legitimate matters for the Magistrate to take into account. Under Section 27(2A) of the City of Bombay Police Act it is competent to the Commissioner of Police to direct any person who, not having been born in the City of Bombay or the Bombay Suburban District, has been convicted more than twice of offences of the character specified, to remove himself from the City of Bombay and not to re-enter it. On a charge being preferred under Section 128 against a man who has been externed and has disobeyed the order, it is certainly competent for the Court to consider whether the order of externment made by the Commissioner of Police was legal, that is to say, whether the case fell within the terms of Section 27(2A). It is not disputed in this case that the accused had been convicted on one day of criminal house trespass and theft, and separate sentences had been passed under those two sections, though the sentence for theft was only one day's imprisonment; and there was also a later conviction for theft. It has been argued for the accused that the convictions on the first occasion of house trespass and theft were probably convictions arising out of the same transaction, and I will assume that to be so. Of course it may very well happen, and frequently it does happen, that in the course of a) single transaction an accused person may commit several offences. For example, he may commit criminal house trespass, by breaking into a house; he may steal some article in the house and thereby be guilty of theft; and when he is interrupted, he may assault the owner of the house, and thereby be guilty of causing hurt. As all those offences arise out of the same transaction, they can be tried together, but there may be a separate conviction and sentence for each of the offences. In practice where more than one offence is committed in the course of the same transaction, the Court directs sentences of imprisonment to run concurrently, but in law that is not necessary. Now it is argued by Mr. Walavalkar for the acused that where there are two or more convictions for offences committed in the course of the same transaction, they cannot be treated as more than one conviction for the purposes of Section 27(2A). But in my opinion that is not right. The actual words of the sub-section are 'has been convicted more than twice of offences', not 'has been convicted on more than two occasions'; and whether the offences are tried together under the provisions of the Criminal Procedure Code, or tried separately, is mere matter of procedure. If in fact there are more than two convictions for separate offences, it seems to me that the case falls within Section 27(2A), though I think it would normally be harsh to make an order of externment when all the offences have been in fact committed at one and the same time and as part of the same transaction, if the Commissioner has nothing else to go upon. But, in my opinion, it is not open to the Court, in dealing with a case of breach of an order of externment made under Section 27(2A), to consider the reasons which induced the Commissioner of Police to make the order of externment. The Commissioner of Police, in deciding whether to make an externment order in a case falling within the sub-section, is acting in an administrative capacity, and not in a judicial capacity. He may know a great deal more about the person to be externed than the Court which convicted him knew. The Commissioner is not bound only by the evidence given in Court, and may consider himself justified in making an order of externment in the public interest, although the actual offences of which the accused person has been convicted were not of a serious character. In my opinion, all that the Court can do in a case under Section 128 is to consider whether the order of the Commissioner of Police was legal; and if it was, whether it has been broken; and, if so, what is the proper punishment. It is not open to the Court to consider the reasons which induced the Commissioner of Police to make the order. In my opinion, therefore, the first factor, which the learned Magistrate says that he takes into consideration in considering the sentence, is not a legitimate factor.
4. The second factor is whether the case under Section 128 is that of a first offence, or whether the accused has returned more than once wrongfully. That of course is a matter which the Court is entitled to take into account in determining the sentence. But at the same time it must be remembered that an order of externment is made in the public interest, and it is a serious offence to ignore that order. The mere fact that it has only been ignored once is not a good reason for imposing a light sentence.
5. The third factor is. the age of the accused, but that is only relevant where the accused is very young or very old, and in this case he is aged thirty.
6. The fourth factor is the reason which may have prompted the accused to return to Bombay. I agree that if the accused proves conclusively that he had some reason unconnected with any criminal intent, that is a matter which may be taken into account in imposing the sentence. If, for instance, he proves that he came back to Bombay to see his dying mother or something of that sort, any Court would take that into consideration in mitigation of the offence. Nothing of the sort is proved in this case.
7. The fifth ground is the period of time during which the accused may have remained in custody. That no doubt is a matter to which the Court always pays some regard.
8. I think, therefore, the principles on which the learned Magistrate says that he is in the habit of acting are correct, except as to the first matter, viz., the character of the convictions which have brought the case within Section 27(2A) of the City of Bombay Police Act, which seems to me to be irrelevant.
9. In the present case we think that two months' rigorous impirsonment was too little, and we propose to enhance the sentence to nine months' rigorous imprisonment.