Gupta, J.-—This is a reference made by the Sessions Judge, Ganganagar who has recommended that the order of the sub-Divisional Magistrate Ganganagar, contained in his judgement dated the 25th of Feb., 1950, by which he has ordered that the sentence passed on him under s. 406 of the Penal Code be made to run concurrently with the sentence of imprisonment previously passed against the convict in a separate trial for an offence under s. 302 of the Penal Code, be set aside. 2. It appears that one Surja had been convicted of an offence under s. 302 of the Penal Code and sentenced to life imprisonment. Subsequently, he was charged and tried for an offence under s. 406 and convicted for the same. The learned sub-Divisional Magistrate who sentenced Surja to one years rigorous imprisonment ordered that the sentence be made to run concurrently with the sentence passed on him under s. 302 of the Penal Code. Surja, thereupon, went up in appeal to the Sessions Judge, Ganganagar. During the course of the hearing of the appeal, it was discovered by the learned Sessions Judge that the Magistrate had made the sentence to run concurrently with a sentence passed on him previously in a separate trial for an offence under s. 302 of the Penal Code. He thought the order to be illegal and made the present reference. The learned Assistant Government Advocate opposes the reference. He argues that the Magistrate was empowered, to pass the order he did, under s. 397 Cr.P.C. sub-sec. (1) the last and relevant words of which are:— "Unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence." 3. I agree with the learned Assistant Government Advocate. The learned sub-Divisional Magistrate was competent under the above quoted provision of s. 397 Cr.P.C. to pass the order in question and make the subsequent sentence passed by him to run concurrently with the previous sentence passed against Surjaram though in a separate trial. In this view, I am supported by a decision reported in A.I.R. 1926 Nagpur, 426. The recommendation of the learned Sessions Judge cannot, therefore, be accepted and the reference is rejected. It appears that the attention of the learned Sessions Judge was not drawn to the above provision made at the time of amendment of the Code of Criminal Procedure in the year 1923. 4. The recommendation of the learned Sessions Judge cannot, therefore, be accepted and the reference is rejected. It appears that the attention of the learned Sessions Judge was not drawn to the above provision made at the time of amendment of the Code of Criminal Procedure in the year 1923. 4. The learned Assistant Government Advocate has further pointed out that the learned Sessions Judge had made the reference without disposing of the appeal of Surjaram who was a long-term prisoner in the Central Jail, Bikaner. He has pointed out that the learned Sessions Judge was wrong in making this reference without disposing of the appeal. He has, therefore requested that the records be returned to the learned Sessions Judge for disposal of the appeal. There is much force in what the learned Assistant Government Advocate has said. It was only after the dismissal of Surjarams appeal and maintaining the sentence imposed on him by the trial Court that the necessity for a reference of the kind could have arisen. There would have been no necessity of this reference in case Surjarams appeal were accepted. The records are returned to the learned Sessions Judge for disposal of the appeal according to law.