JUDGMENT

Page, C J - In this summons ease the accused, Ma Hlwa, was charged at the same trial with the commission of two offences, (1) under Section 37 and (2) under Section 30(d), Excise Act. She pleaded guilty to both charges.

2. The Magistrate, purporting to act under Section 35, Criminal P.C., after convicting the accused sentenced her to pay a fine of Rs. 12 or in default to undergo 15 days' rigorous imprisonment for the offence under Section 30 (d), but did not convict the accused or pass any sentence for the offence under Section 37. The question that arises is whether it was incumbent upon the Magistrate to pass a sentence upon the accused in respect of both offences, or whether it was competent for him to refrain from convicting the accused or passing any sentence for the offence under Section 37. Section 35(1) runs as follows:

When a person is convicted at one trial of two or more offences, the Court may, subject: to the provisions of Section 71, I.P.C., sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments, when consisting of imprisonment or transportation, 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.

3. Many decisions were cited to us with respect to the meaning and effect of Section 35, but I do not think that any useful purpose would be served by discussing them in detail. Having regard to the terms of the section, the context in which it is found and the amendments of the section effected by Act 18 of 1923, Section 7, I am clearly of opinion that Section 35 relates merely to the quantum of the punishment that the Court has jurisdiction to pass where the accused is convicted of two or more offences at one trial, and does not purport to provide whether, and if so under what circumstances, the Court has jurisdiction to pass or to refrain from passing sentence in respect of the offences of which the accused has been convicted, or any of them. The object and effect of Section 35.1 apprehend, was to regulate and in some instances to increase (subject to Section 71, Penal Code,) the punishments that the Courts in certain circumstances were competent to award (see Rs. 31 to 34); and it was not intended thereby to provide that it was not incumbent upon the Court to pass a sentence upon the accused in respect of any of the offences of which he had been convicted in the circumstances referred to in the section. I find myself in agreement with the following observations of Mahmood, J., in Queen-Empress v. Wazir Jan (1887) 10 All. 58:

I have already said enough to indicate that in my opinion Section 71, I.P.C., has no bearing upon the question of convictions, but relates only to the measure of punishment for offences falling under the purview of that clause. I have also said enough to indicate that, according to my view of the law, neither Section 35 nor Section 235, Criminal P.C., stands in the way of separate convictions and separate sentences for each offence of which the accused is found guilty in the same trial, though, as a matter of substantive law, Section 71, I.P.C., affects the measure, or, rather the limit, of punishment, and, as a matter of adjective law, Section 35, Criminal P.C., has a bearing upon the same question with reference to the powers of the Court awarding the sentence, and with reference to the right of appeal.

4. To hold otherwise would be to render Section 35 inconsistent with Sections 245 and 258 of the Code, under which the Magistrate if be finds the accused guilty, is bound to pass sentence upon him according to law. Further, if an accused person (of course, subject to Section 71, Penal Code,) is convicted of two or more offences at the same trial and a separate sentence was not passed upon him in respect of each offence, or he was sentenced to one consolidated punishment in respect of all the offence