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7. These provisions leave no doubt in my mind that in a case such as this the Magistrate was right in trying the accused both under Section 170 and Section 384 of the Indian Penal Code, and in convicting the accused for both offences. The question as to the measure of punishment is a different matter from the question of conviction and rests upon other considerations both of law and fact. There is, however, a note in Mr. Justice PRINSEP'S commentary on the Code of Criminal Procedure Coda (8th ed., p. 33), under Section 35, which states that the Calcutta High Court, has held that when there are in an indictment, two separate offences supported by distinct and separate evidence, a separate sentence should be passed for each offence, the punishment under the second sentence to take effect on the expiry of the first, and that if, however, there are two or more offences supported by the same evidence, or very nearly so, a verdict of guilty should be entered on the offence covered by the greater portion of the evidence as the gravest in the eye of the law, and a verdict of not guilty on the other charges. The case in which this rule was laid down does not appear in the published reports, and the reasons on which the ruling proceeded are not, therefore, available to me. But I confess, with due respect, that I am unable to accept the rule so laid down. I have already said that the question of conviction is distinguishable from the question relating to the measure of punishment, that is, the sentence to be passed. The latter may, indeed, be affected by Section 71 of the Indian Penal Code, or by Section 35 of the Code of Criminal Procedure: in the former case by a rule of substantive law, in the latter by a rule of adjective law. But I am unable to see how the mere circumstance that a series of acts which constitute a minor as also a graver offence, when proved against an accused person who has been charged with and tried for both the offences, can result in a finding of "not guilty" of the minor offences any more than of the graver offence. So far as I am aware, there is nothing in the Code of Criminal Procedure to justify such a course, and Section 71 of the Indian Penal Code cannot be understood to regulate convictions, though of course it governs the question of sentence as a matter of substantive criminal law. The view expressed by the Madras High Court, in their proceedings of the 4th July 1867 (Weir, p. 43), is that when a prisoner is tried on several heads of charge, the most convenient course, with reference to appeals, is to enter up findings on all the counts, though when the several heads of charge are all founded on one continuous transaction, punishment can only be awarded on one. It seems to me that where certain acts constitute more than one offence, whether such offences do or do not fall under the purview of Section 71 of the Indian Penal Code, and the accused is charged and tried for more than one offence and the evidence establishes those offences, the Court is bound to convict him of those offences, though in awarding punishment the provisions of Section 71 of the Indian Penal Code and of Section 35 of the Code of Criminal Procedure would of course have to be duly kept in view. I have already said that the question of conviction is a question of adjective law or procedure, and that when an offence provided for by the substantive law is proved, a conviction must follow in the absence of express provisions to the contrary in the law of procedure itself. I am not aware of any such provision in our Code of Criminal Procedure, and the nearest approximation to such a rule are the provisions of Section 240 of that Code, which lay down that when more charges than one are made against the same person and a conviction has been had on one or more of them, the prosecution may, with the consent of the Court, withdraw the remaining charge or charges, or the Court may stay their trial. That section, however; does not apply to this case, and I hold that the Magistrate was right, upon the evidence before him, in convicting the accused both under Section 170 and Section 384 of the Indian Penal Code.

11. Having considered the various cases to which I have referred, I cannot help thinking, with due respect, that the main reason why such conflict of decision has arisen is confusion between the rules of law regulating the conviction and those which regulate the measure of punishment. An act or a series of acts which in the eye of the substantive criminal law constitute an offence, punishment wherefor is imperatively demanded by the law, must, when duly proved against the accused, result in a conviction; and whenever there is conviction, it follows, as a natural sequence of legal thought, that there must be a punishment, for otherwise the definition of "offence" in Section 40 of the Indian Penal Code would be scarcely intelligible. I am not aware of any rule of our law that an offence when charged and proved against the accused is to result either in a verdict of not guilty or to pass unpunished, whether such an offence is or is not accompanied by another offence, and whether such latter offence does or does not overlap or include the former. I have already said enough to indicate that, in my opinion, Section 71 of the Indian Penal Code 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 of the Criminal Procedure Code 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 of the Indian Penal Code affects the measure, or, rather the limit, of punishment, and, as a matter of adjective law, Section 35 of the Criminal Procedure Code 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.

12. Applying these views to the present case, I am of opinion that there is no rule of our criminal law which would enable the Court, after finding the accused guilty of an offence, to refrain from passing a sentence on him as punishment for such offence, and therefore the learned Sessions Judge was wrong in law in omitting in this case to pass a sentence upon the accused after having found him guilty under Section 170 of the Indian Penal Code.

13. It now remains for me to consider whether, in the exercise of the revisional powers of this Court, I should disturb the amount of sentence passed upon the accused. The decision of this question again is partly dependent upon considerations of law, though it relates only to the measure of the punishment to, be awarded. The question of law is whether, under the circumstances of this case, the offence of personating a public servant under Section 170 was such as would be included in the offence of extortion as defined in Section 383 and made punishable under Section 384 of the Indian Penal Code. The first paragraph of Section 71 provides that "where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided." This rule is illustrated in the Code itself by illustration (a) to the section, and it is clear that it does not apply to the present case, because the offence of personating a public servant under Section 170 is not any part of the offence of extortion to which Sections 383 and 384 relate. Nor is the second paragraph of Section 71 applicable, because neither of the two offences with which this case is concerned falls under several definitions. The question, then, is whether the case falls under the third part of Section 71--in other words, whether the present case is one "where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence;" because in such cases the section provides that " the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences."

14. Now I am aware that it has been held in some cases that for the decision of this question the identity of the evidence produced in support of the prosecution is the criterion, but I confess I am unable to adopt this view. Section 71, as I have already said more than once, is a rule of substantive law, and, as such, must be understood to refer to substantive provisions and not to matters of evidence. The phrase "constitute an offence" as it occurs in the section must be understood to refer to the definitions of the offences as enunciated in the Code itself, irrespective of the identity or non-identity of the evidence whereby the several acts are proved. In this view of the law, the offence of personating a public servant under Section 170 cannot be dealt with as a constituent element of the offence of extortion as defined in Section 383 of the Code, even though, as in this case, the evidence shows that but for the former offence the latter offence could not have been successfully committed. In other words, the evidence in this case shows that but for personating a public servant, the accused could not practically have had the means of putting any person in fear of injury, which is an essential element of extortion; but I hold that this circumstance does not bring the two offences within the purview of the latter part of Section 71 of the Indian Penal Code. The reason for this view is that the offence under Section 170 was complete as soon as the accused falsely pretended to be a public servant as an octroi officer, and in such an assumed character called upon Ram Charan, teli, to show proof of the payment of octroi duty, and threatened him with injury. The offence thus being complete in itself, it could not merge into the offence of extortion under Section 383, of which offence personation as a public servant forms no necessary ingredient. Indeed, the offence of extortion as defined in that section may be practised, and is often practised, by private individuals assuming no pretended authority as public servants, and the mere circumstance that in this ease personating as a public servant was utilized as a means of extorting money will not merge the two offences into one or entitle the accused to escape conviction under both offences. In other words, I hold that it is not to the identity or non-identity of the evidence, nor merely to the individual facts of each case as to the practicability of the offence, but to the definitions of offences as to the elements of the corpus delicti, that we must look for deciding the question as to the applicability of the latter part of Section 71 of the Indian Penal Code for purposes of assessing punishment. And inasmuch as the accused in this case has been found guilty both under Section 170 and Section 384 of the Indian Penal Code, separate sentences should have been awarded, irrespective of the provisions of Section 71 of the Indian Penal Code, but with due regard to the provisions of Section 35 of the Code of Criminal Procedure. The provisions of that section, however, do not affect this case, as the Magistrate who tried the accused was a Magistrate of the first class, and, as such, empowered to pass the sentences which he did.