Full Judgment
Batchelor, J.
1. This is an application in revision made to us by the Government of Bombay, and the accused was convicted under Section 379, Indian Penal Code, and was sentenced to six months' rigorous imprisonment. The Magistrate ordered that the sentence was ' to take effect from the date of expiry of the accused's present sentence.' That phrase, as explained in the warrant, meant ' the sentence which the accused was undergoing for failing to find security for good behaviour under Section 123, Criminal Procedure Code.'
2. The whole question before us is whether the Magistrate was entitled to defer the sentence in regard to the theft until after the expiry of the imprisonment which the accused was suffering owing to his inability to find security. Upon this question we have unfortunately not had the advantage of argument from the accused's point of view. But the learned Government Pleader has laid the whole case before us and has drawn our attention to the various authorities on both sides. It is a little remarkable that on such an apparently simple question there should be such a sharp difference of judicial opinion. In that state of the case, however, and seeing that we have had no argument from one side, we think that our best course is to state our own opinion as tersely as may be. Our opinion is that the correct view has been taken by this Court in Emperor v. Arjun Ambo (1909) 12 Bom. L.R. 1129, Emperor v. Kanji Jaysing (1902) 5 Bom. L.R. 26 and Emperor v. Durga Bahirav (1904) 6 Bom. L.R. 1098 that is to say, in our construction of the Code when a person is committed to prison under Section 123 for failure to give security he is not undergoing a sentence of imprisonment within the meaning of Section 397. We think that the authorities which we have referred to constitute a sufficiently uniform cursus curice to preclude the necessity of any further reference, though we do not overlook that a somewhat divergent view was taken in 1895 by Mr. Justice Jardine and Mr. Justice Ranade in Queen-Empress v. Pandu Khandu (1885) U. Cr. C. 774. It is represented to us that possibly some embarrassment has been caused in the Courts below by the order which was passed in Emperor v. Dongrya Gangaram Bhil Cr. Ref. 91 of 1911 (Unreported) to which order one of us was a party. It should, therefore, be explained that in that case this Court returned the papers without making any order for the reason that the ground, upon which an order was sought by the District Magistrate of East Khandesh, was the existence of a certain Government Resolution which, in the opinion of this Court, was irrelevant to the purpose then in hand. There is nothing in the order passed upon that Reference which conflicts with the view which we have now expressed as to the meaning of Sections 123 and 397 of the Criminal Procedure Code. We observe that this is the view which has found acceptance in the Madras High Court: see Emperor v. Muthukomaran ILR (1903) Mad. 525 and Joghi Kannigan v. Emperor ILR (1908) Mad. 515; and it is in our judgment the view which must at present be adhered to by the Courts subordinate to this Court.
3. The result will be that the application succeeds and the Magistrate's order directing that the sentence of imprisonment' in regard to the theft should be postponed till after the expiry of the imprisonment being suffered under Section 123, Criminal Procedure Code, must be set aside. The substantive sentence of imprisonment under Section 379, Indian Penal Code, must take effect from the time at which it was passed.