Order.- This is a reference made by the Principal Sessions Judge, Dharwar, under section 438, Criminal Procedure Code, recommending to this Court to revise the sentence passed by the Judicial Magistrate, First Class, Laxmeshwar, in C.C No. 865 of 1965. The learned State Public Prosecutor supports the reference and the respondent, though served, is absent. The circumstances which led. to the above reference are these: The respondent who was the accused before the Judicial Magistrate, First Class, was tried for an offence under sections 343, 354,323 and 504, Indian Penal Code, on the allegation that on 31st March, 1965 at about 12 noon in Shirbatti Village, he beat the complainant Smt. Anusuya, his keep, scolded her in vulgar language and cut her braid with an intention to outrage her modesty, and wrongfully confined her in his house. The learned Magistrate found, the accused guilty of an offence punishable under sections 354, and 323, Indian Penal Code, and passed the following order: “In view of the discussion made above and findings arrived thereat, I hereby find the accused guilty under section 251-A (12) of Criminal Procedure Code for the offences under section 354, and 323 of Indian Penal Code and convict him to undergo rigorous imprisonment for one year for the offence under section 354 of Indian Penal Code and to pay a fine of Rs. 100 for the offence under section 325 of Indian Penal Code in default to undergo simple imprisonment for one month. Both the sentences to run concurrently and the accused is acquitted for the offence under section 504 and 242 of Indian Penal Code. M. Os. to be destroyed.” The accused was sent to jail to undergo imprisonment. While he was undergoing imprisonment, the Magistrate received a communication on 6th April, 1967 from the Central Prison, Belgaum, inviting his attention to rules 336 and 323 of Bombay Jail Manual which state that sentence imposed in default of payment of fine cannot run concurrently and they should always be carried out on the expiration of the substantive sentences whether the latter are annexed to the fine sentence or not. After the receipt of the communication, the learned Magistrate looked into the position of law and found what the Jailer had stated in his letter was correct. After the receipt of the communication, the learned Magistrate looked into the position of law and found what the Jailer had stated in his letter was correct. Therefore, the learned Magistrate wrote to the Sessions Judge to call for records in C.C. No. 365 of 1965 for revising the sentence under section 438, Criminal Procedure Code. The learned Sessions Judge called for records and after perusing the same has made this present reference. The question for decision is whether the direction that the default sentence should run concurrently with the substantive sentence is valid in law? The learned State Public Prosecutor contends that the provisions of Criminal Procedure Code relating to passing of concurrent sentences refer to only substantive sentences and not to sentences of imprisonment in default of payment of fine. The State Public Prosecutor relied upon the provisions of sections 35 and 398 Criminal Procedure Code and sections 64 and 69, Indian Penal Code to support his contention. He also relied upon the rulings of various High Courts in support of his contention. Section 35 Criminal Procedure Code, lays down rules for punishment in cases of conviction of several offences at one trial. Section 35 (1) reads: “When a person is convicted at one trial of two or more offences, the. Court may subject to the provisions of section 71 of the Indian Penal Code sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order at the Court may direct, unless the Court directs that such punishments shall run concurrently.” It is, therefore, clear that when separate sentences are passed, the imprisonments should run one after the expiration of the other unless the Court directs those punishments to run concurrently. The privisions of section 35, Criminal Procedure Code, must be read with section 64, Indian Penal Code, in order to understand as to when imprisonment for default of payment of fine commences. Section 64 contemplates that when imprisonment for default of payment of fine is ordered, the imprisonment shall be in excess of any other imprisonment to which the recused may have been sentenced. This is found in para. Section 64 contemplates that when imprisonment for default of payment of fine is ordered, the imprisonment shall be in excess of any other imprisonment to which the recused may have been sentenced. This is found in para. 3 of section 64, Indian Penal Code which reads as under: “..........It shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.” The learned State Public Prosecutor argues that passing of concurrent sentences in respect of the imprisonment in default of payment of fine would make assortment of imprisonment difficult in the event of payment or levy of fine. Section 69 Indian Penal Code deals with termination of imprisonment on payment of fine proportionately to the fine amount paid. If default sentences for non-payment of fine are made to run concurrently, the difficulty pointed out by the State Public Prosecutor would certainly arise. Further, if such sentences are made to run concurrently, it would be against the provisions laid down in section 64, Indian Penal Code, which states that the imprisonment for default of payment of fine shall be in excess of any other imprisonment to which a person has been sentenced. The State Public Prosecutor also invited my attention to the provisions of section 398 (2), Criminal Procedure Code to show that the default sentence should run only after the person had undergone the substantive sentences. Section 398 (2), Criminal Procedure Code, reads as under: "When an award of imprisonment in default of payment of a fine is annexed to a substantive sentence of imprisonment and the person undergoing the sentence is after its execution to undergo a further substantive sentence, or further substantive sentences of imprisonment, effect shall not be given to the award of imprisonment in default of payment of the fine until the person has undergone the further sentence or sentences." This provision makes it clear that the default sentence should be undergone only after all the substantive sentences passed against the prisoner have been undergone. On a reading of the provisions of several sections quoted above, I am of the opinion that the order passed by the learned Magistrate is wholly unsustainable in law. The State Public Prosecutor invited my attention to a decision In re Kanda Moopan1, wherein it is laid down as follows: "It is not competent for the Court to direct that sentences of imprisonment imposed for default in payment of fines should run concurrently. Such order, if passed is illegal; such direction can only be given in respect of sentences of imprisonment or transportation.‘‘ The State Public Prosecutor nextly relied upon the decision in Public Prosecutor v. Balla Venkayya2, wherein it is held as follows: "Section 35 deals only with cases of substantial punishments by imprisonments for distinct offences in the same case. No provision is made in the Code for directing imprisonments in default of payment of fine to run concurrently with the substantive sentence of imprisonment awarded for any other offence tried in the same case. An order directing sentence of imprisonment to run concurrently with the sentence of imprisonment in default of payment of fine is bad." Lastly, the learned State Public Prosecutor relied upon the Bench decision in The State of Uttar Pradesh v. Bati and others3, wherein it is held as follows; "It is not competent for the Court to direct that sentences of imprisonment imposed for default in payment of fines should run concurrently. Such order, if passed is illegal; such direction can only be given in respect of substantive sentences of imprisonment or transportation and not to imprisonments in default of fines." I am in respectful agreement with the principle of law laid down in the decisions cited above. It follows therefore that the direction of the Magistrate in this case to the effect that the sentence of imprisonment in default of payment of fine imposed by him should run concurrently is illegal and the same is set aside. Further, it is directed that the default sentence for an offence under section 323, Indian Penal Code, shall be consecutive. S.V.S. ----- Reference accepted.