in one or more of the separate cases, it would be impossible to determine to what portion of the aggregate imprisonment the prisoners still remained liable. (4 Mad. H. C. Appx. 27.)

See also as to sentences on escaped convicts and prisoners already under sentence. Cr. P. C. ss. 316-317, 9 Geo. IV, c. 74, s. 23. Act XVIII of 1862, s. 39.

I. If in one set of facts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried for every such offence at the same time.

II. If a single act falls within two separate definitions of any law, in force for the time being, by which offences are defined or punished, the person who does it may be charged with each of the offences so committed, but he must not receive a more severe punishment than could be awarded by the Court which tries him for either.

(Cr.

III. If several facts, of which one or more than one would by itself constitute an offence, form, when combined, an offence under the provisions of any law in force for the time being, by which offences are defined or punished, a person who does them may be charged with every offence which he may have committed, but he must not receive for such offences, collectively, a punishment more severe than that which might have been awarded, by the Court trying him, for any one of such offences, or for the offence formed by their combination. P. C. s. 454. See also the illustrations appended to the Section.) Where a prisoner is convicted of several offences, and receives upon each a sentence which, if standing alone, would not be open to appeal under ss. 273-274 of the Cr. P. C. the sentences cannot be taken together, as if they formed one sentence, so as to give an appeal. (1 B. A. Cr. 3.) But an appeal may be brought against any sentence referred to in s. 273 or 274, by which any two or more of the punishments therein mentioned are combined, but not against a sentence in which imprisonment is awarded in default of payment of fine, and in addition thereto. Nor against any sentence which would not otherwise be liable to appeal, because the person convicted is ordered to find security to keep the peace. (Cr. P. C. s. 274.)

a

Punishment of

person found

guilty of one of the judgment

several offences,

72. In all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but that it is doubtful of which of these offences he is guilty, the offender shall be punished for the offence for which the lowest punishment is provided, if the same punishment is not provided for all.

stating that it is doubtful of which.

This Section points to a difficulty which has hitherto been without remedy. An indictment may contain several counts, each charging a distinct offence; for instance, a simple assault, an assault with intent

to wound, and an assault with intent to rape. In strict logic, no conviction ought to take place until the verdict can state which of the offences was perpetrated, and if it cannot be stated which of them, then it cannot be alleged with certainty that any one of them in particular was committed, and if so, there ought to be an acquittal. Juries always get out of the difficulty by returning a general verdict of guilty, which they are told they may do, if they are of opinion that any offence charged in the indictment has been accomplished, and they cannot be asked to state which was effected. Now, however, a Judge will be authorised to find that the prisoner is guilty upon some one, but he is doubtful upon which of the counts, and the sentence will then be given as if he had been convicted on the least aggravated charge.

It will be observed that to authorise a conviction under this Section, the doubt must be as to which of the offences the accused has committed, not whether he has committed either. As the Commissioners observe (Second Report 1847, § 527.)

"But it is to be remembered that, according to the supposition, the main facts which constitute the corpus delicti are proved, and that the doubt relates to some incidental point, which is of a quality important only as determining whether the offence falls technically under one designation or another; as for example, where a man is charged with theft, but a doubt is raised by the evidence whether the party had not the property in trust."

In Bengal, and latterly in Madras, it has been held, that where a prisoner has made two contradictory statements, and there is no counter-balancing evidence to show which of them was false, he may be convicted upon an alternative finding that he gave false evidence in one or other of the two statements. (2 R. C. Č. CR. 49. 4 Mad. H. C. 51.)

But it must appear necessarily upon the face of the depositions or from other evidence, that one or other of the two statements was false, and was known to be false. (4 B. A. Cr. 4. 9.)

See Cr. P. C. s. 455 as to the indictment, where the nature of the crime is doubtful.

73.

Solitary confinement.

Whenever any person is convicted of an offence for which under this Code the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole; according to the following scale, that is to say

A time not exceeding one month, if the term of imprisonment shall not exceed six months.

A time not exceeding two months, if the term of imprisonment shall exceed six months and be less than a year.

A time not exceeding three months, if the term of imprisonment shall exceed one year.

No provision is made for a sentence of one year's imprisonment. But the Madras High Court has ruled that more than two months' solitary confinement cannot be awarded in a sentence of one year's imprisonment. (13th Feb. 1867. 17th Nov. 1870.)

Limit of solitary confinement.

74. In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such period; and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods.

Punishment of persons convicted,

after a previous

conviction, of an offence punishable

with three years'

imprisonment.

75. Whoever, having been convicted of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards, shall be guilty of any offence punishable under either of those Chapters with imprisonment of either description for a term of three years or upwards, shall be subject for every such subsequent offence to transportation for life, or to double the amount of punishment to which he would otherwise have been liable for the same; provided that he shall not in any case be liable to imprisonment for a term exceeding ten years.

The Bengal High Court holds that the previous offence must have been committed since the Penal Code came into operation, so as to have been punishable under it. Therefore a previous conviction for theft

committed in 1860 was held not to authorise increased punishment under s. 75. (5 R. J & P. 152. 1 R. C. C. Cr. R. 60.) A contrary ruling has been given by the Madras High Court. (1 Aug. 1864.) But considering the definition of the word "offence" in s. 40 of the Penal Code, as interpreted subsequently by Acts IV of 1867 and XXI of 1870, the view taken by the Bengal High Court seems to me to be preferable. Nor can the enhanced punishment be awarded, where the offence subsequently committed is merely an attempt to commit an offence punishable under Chapter XII or XVII, or an abetment of such an offence. (Ruling of Mad. H. C. 1864 on s. 75.) It has also been decided in Bengal that the subsequent offence must be one committed after release from prison upon the previous conviction; the liability to enhanced punishment for the second offence being "on the ground that the sentence already borne has had no effect in preventing a repetition of crime, and has been, therefore, insufficient as a warning." Therefore, where a prisoner committed several offences, which were made the subject of several trials, the last trial taking place a few weeks after those preceding it, while the prisoner was still undergoing his sentence, the Court held that such convictions could not be charged under s. 75. (1 R. C. & C. Cr. R. 60.) See also note to form of indictment. ́Book II.

CHAPTER IV.

GENERAL EXCEPTIONS.

76. Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be, bound by law to do it.

Act done by a person bound or by mistake of fact believing himself bound by law.

Illustrations.

(a) A, a soldier, fires on a mob by order of his superior Officer, in conformity with the commands of the law. A has committed no offence.

(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and, after due inquiry, believing Z to be Y, arrests Z. A has committed no offence.

77.

Nothing is an offence which is done by a -Act of Judge Judge, when acting judicially in the when acting judi- exercise of any power which is, or which in good faith he believes to be

cially.

given to him by law.

The word "Judge" is defined by s. 19.

Accordingly this Section does not protect a committing Magistrate. 78. Nothing which is done in pursuance of, or which is warranted by the judgment

Act done pursuant to the judgment or order of a Court of Justice.

or order of a Court of Justice, if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.

The phrase "Court of Justice" is defined by s. 20.

79.

Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be justified by law in doing it.

Act done by a person justified, or by mistake of fact believing himself justified by law.

Illustration.

A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence.

Chapter IV aims at embracing all those exceptional circumstances which may render lawful an act which upon its face appeared to be unlawful. This chapter must be read along with all the other chapters of the Code which treat of unlawful acts. For instance, s. 299 states that

"Whoever causes death by doing an act with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide."

This Section taken by itself would impose the penalties of murder upon a surgeon, who properly performs a dangerous operation which results in death. Modified by the exceptions in this chapter, such consequences are, to a great extent (though not, in my opinion, entirely,) prevented.

Sections 76 to 79 relate to the cases of persons who are, or who justifiably believe themselves to be, acting under the authority of law. Where a party actually is bound by law, or justified by law, in doing a particular act, of course there can be no more question upon the point. By the very force of the terms, he is doing that which is