Ranawat, C.J.—This is an application of Surja Ram son of Ratiram from jail under sec. 491 of the Code of Criminal Procedure.

2. The petitioner Surjaram was convicted by the court of the sessions Judge of Ganganagar on the 19th of July, 1948 u/Sec. 302, 307 and 309 Bikaner Penal Code and he was sentenced to death under sec. 302 and 10 years and 9 months rigorous imprisonment under sec. 307 and 309 Bikaner Penal Code respectively. The judgment of the session Judge was confirmed by the High Court of Bikaner and also by Bikaner State Council. Thereafter His Highness the Maharaja of Bikaner commuted the death sentence into a sentence of imprisonment for life by his order dated the 13th of December, 1948 (vide copy of the order at page 5 of the paper book). In the said order it was further mentioned that life imprisonment was deemed to be imprisonment for 20 years only. After the commutation of the sentence of death,the Superintendent of Jail referred the matter to the sessions Judge, Ganganagar, for clarification if the sentence of life imprisonment and the other two sentences of imprisonment passed against Surja Ram should be executed concurrently or consecutively. The Sessions Judge, Ganganagar, by his order dated the 4th of January, 1959, informed the Superintendent of Jail that the sentence of life imprisonment and the sentences of imprisonment under sec. 307 and 309 Bikaner Penal Code shall have to be undergone by the petitioner consecutively as the two orders were passed separately. Probably the learned Sessions Judge thought that sec. 397 Criminal Procedure Code was applicable to the case and that the two sentences had been passed separately against the accused. Surja Ram has now moved this Court by an application submitted through jail dated the 16th of March, 1962. This application came up for hearing on an earlier occasion but as the record of the Bikaner State High Court and of the Council of that State in which the sentences were confirmed were not before this Court, they were sent for. In spite of long correspondence and search, the said records could not be traced out and the matter has again come up before us in exactly the same condition as it stood when it had come before the Court on the earlier occasion. We take it that the facts that have been verified in the endorsement of the Superintendent of Jail, Bikaner, which have been mentioned above, are authentic and we proceed to determine the case on those facts.

3. The question that arises for decision is whether the sentence of life imprisonment and the other two sentences of imprisonment awarded to the petitioner should be deemed to be executable consecutively or concurrently. Sec. 35(1) of the Criminal Procedure Code lays down :

"(i) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of sec. 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 punish ments, 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."

4. It has further been provided in sub-sec. (2) of sec. 35 :

"(2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment tor the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court; provided that in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;"

5. In the instant case, the petitioner was sentenced to death under sec. 302 and to ten years and nine months rigorous imprisonment under secs. 307 and 309 Bikaner Penal Code respectively. There was no occasion for the Sessions Judge, who tried the case, to apply his mind to the point that has

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