ORDER
1. This is an application under Section 491 of the Code of Criminal Procedure, hereinafter called the Code, for directing that the petitioner should be set at liberty as he is being illegally detained in jail even though he has, according to him served out the sentences imposed upon him in Sessions Trial No. 197 of 1960. In that trial the learned Assistant Sessions Judge II. Patna had convicted the petitioner under Section 420/511, Indian Penal Code, am] sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/-, in default to undergo further rigorous imprisonment for a period of six months only. The petitioner was also convicted in the said trial under Section 471/511. Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 250/-. in default “further rigorous imprisonment for another six months” The further direction by the trial Court was ”the sentences of imprisonment are to run concurrently” The petitioner filed Criminal Appeal No. 473 of 1962 in this Court which was disposed of on the 24th of February. 1964. His convictions were maintained The sentence of five years rigorous imprisonment imposed upon him for his conviction under Section 420/511. Indian P. C. was reduced therefor which such Court is consisting of this modification in sentence the appeal was dismissed
2. The petitioner’s contention is that in view of the direction of the trial Court that the sentences of imprisonment were to run concurrently a direction which was not interfered with in any way by the High Court at the time of disposal of the criminal appeal–the petitioner ought to have been detained in Jail on the basis that his total period of imprisonment which was five years and six months only i.e., the sentence of imprisonment of six months imposed upon him in default of the payment of fine of Rs. 250/- for each of the convictions recorded by the trial Court should also run concurrently In our opinion the contention is not sound and cannot be accepted. Section 35 (1) of the Code says –
“35. (1) 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 therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently”. Reading the above provision of law by itself, it would be noticed that the power in the Court to direct the concurrent running of punishments is confined to cases where the punishments consist of imprisonment. In terms, it does not cover cases of sentences of imprisonment imposed in default of payment of fine. Reading this provision by itself, perhaps, there I would be some ambiguity, but the matter is made further clear by the provisions Section 64 of the Penal Code which provides-
“64. In every case of an offence punishable with imprisonment as well as fine in which the offender is sentenced to a fine whether with or without punishment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine it shall be competent to the Court which sentences such offender to direct by the sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence”
It is undisputed rather conceded and if I may say so rightly on behalf of the petitioner, that the sentence of imprisonment imposed upon the petitioner in default of payment of one fine cannot be made concurrent with the substantive sentence of imprisonment imposed otherwise. This had to be conceded in view of the provision of Section 64 of the Penal Code as also in view of a Bench decision of this Court in Bhedu Tatma v Hari Jha, AIR 1958 Pat 35, But the argument on behalf of the petitioner is that in case there are two sentences of fine followed by two sentences of imprisonment in default of payment of fine the said sentences of imprisonment should also run concurrently, especially when this was the direction given by the trial Court We have no hesitation in rejecting this argument The bar imposed by Section 64 of the Penal Code in making the sentences of imprisonment in default of payment of fine concurrent is attracted even though there are more than one sentences of fine imposed, followed by sentences of imprisonment in default of payment of fine. That being so, the first part of the argument must be rejected as incorrect. The second part of the argument is also not warranted by the words of the direction Riven in the judgment of the trial Court and quoted in para. 1 of the petition, portions of which we have quoted earlier in our judgment. The view which we have expressed above is supported by a Bench decision of the Bombay High Court in Emperor v. Subrao Sesharao. AIR 1926 Bom 62
3. In the result there is no merit in this
application. It is accordingly dismissed.