Decided on August 21,1869



- (1.) I am of opinion that the order made by the Deputy-Magistrate for suspension of the sentence of imprisonment was not warranted by law, and consequently that the sentence of imprisonment cannot now be lawfully carried into effect. It appears to me that a sentence or imprisonment ought to commence from the time that the sentence is passed, unless there is some lawful reason for ordering it to commence from some future period. One of those cases is provided for by section 46 of the Code of Criminal Procedure, where a person is convicted at the same time of two or more offences punishable under the same or different sections of the Indian Penal Code, and by which it is enacted that it shall be lawful for the Court to sentence the offender to the several penalties prescribed by the Code, such penalties, when consisting of imprisonment, to commence the one after the expiration of the other. Another instance is in section 47, where sentence is passed on an escaped convict; and a third in section 48, in which sentence is passed on a person already under sentence of imprisonment or transportation for another offence. A sentence of imprisonment, therefore, in an ordinary case, to commence at a future period, would in my opinion be bad. If postponed for a long period, the imprisonment might never take effect at all. as the person sentenced might die before the period fixed for the commencement of the imprisonment. If a sentence would be bad where the commencement is postponed for a long period, it would also be equally bad in law if the postponement is for a short period. It may be inferred from section 70 of the Penal Code that a sentence of imprisonment in an ordinary case is to commence forthwith. That section enacts that, in a case in which fine is awarded as a punishment the fine or any other part thereof, which remains unpaid, may be levied at any time within six years after the passing of the sentence; and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period, the intention evidently being that the fine must be levied either within the period of six years or before the expiration of the imprisonment.
(2.) In this case, no doubt, the Deputy Magistrate acted out of consideration for the persons accused and at their request, the persons accused contending that under the new Code of Criminal Procedure, the Deputy Magistrate had no power to hear the case, and asking that the execution of the sentence might be postponed to give them an opportunity of appealing. This, however, as it appears to me, makes no difference. Section 421 of the Code of Criminal Procedure authorizes the appellate Court, in cases where an appeal is allowed, to suspend the sentence, and if the appellant be in confinement for an offence which is bailable, to order his release on bail. The fact that this power is expressly given to the appellate Court, shows that it does not exist in cases in which it is not given. It may be said that the imprisonment awarded (three days) was for so short a period that it would have expired before the accused could obtain relief under that section of the Code of Criminal Procedure. The law, however, has not provided for the case, and therefore the Deputy Magistrate had no power to suspend the sentence.
(3.) The only remaining question is, was the suspension valid, it being at the request of the accused. I apprehend it was not valid, even though ordered at their request. If a criminal asks a Magistrate or a Judge to do that which be has no power to do under the law, the request would not justify the Court in acting in accordance with such request. If a criminal were to ask the Court to pass a sentence upon him not allowed by law, instead of the sentence which the law warrants, the request would not render valid a sentence otherwise unlawful. If the accused had asked the Deputy Magistrate to pass a sentence of imprisonment upon them to commence at the expiration of six years, and the Deputy Magistrate bad passed such a sentence, that sentence would have been invalid. If an original sentence to commence at a future period would be had, then I apprehend that the suspension of a sentence to commence immediately would also be bad. For the above reasons it appears to me that the sentence cannot now be carried into effect, and I am glad to say that, in my opinion, looking at all the facts of the case, no evil consequences will result from the mistake of the Deputy Magistrate. These remarks will be communicated forthwith to the Deputy Magistrate. Mitter, J. I concur.;

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