dition to ment. whipping shall not be inflicted until fifteen days from the ping, in addate of the sentence, or, if an appeal be made within that imprisontime, until the sentence is confirmed by the Appellate Court: but the whipping shall be inflicted as soon as practicable after the expiry of the fifteen days, or, in case of an appeal, as soon as practicable after the receipt of the order of the Appellate Court confirming the sentence. The whipping shall be inflicted in the presence of the officer in charge of the jail: unless the Judge or Magistrate orders it to be inflicted in his own presence. 392. In the case of a person of or over sixteen years of Mode of inflicting age, whipping shall be inflicted with a light ratan not less punishthan half an inch in diameter, in such mode, and on such ment. part of the person, as the Local Government directs1; and, in the case of a person under sixteen years of age, it shall be inflicted in the way of school-discipline with a light ratan. In no case shall such punishment exceed thirty stripes. 393. No sentence of whipping shall be executed by instalments; and none of the following persons shall be punishable executed with whipping (namely): (a) females; : (6) males sentenced to death, or to transportation, or to penal servitude, or to imprisonment for more than five years; (c) males whom the Court considers to be more than fortyfive years of age. Number of stripes. Not to be by instalments. Exemptions. not to be 394. The punishment of whipping shall not be inflicted Whipping unless a Medical Officer, if present, certifies, or, if there is not inflicted if a Medical Officer present, unless it appears to the Magistrate or offender officer present, that the offender is in a fit state of health to undergo such punishment. unwell. cution. If, during the execution of a sentence of whipping, a Stay of exeMedical Officer certifies, or it appears to the Magistrate or officer present, that the offender is not in a fit state of health to undergo the remainder of the sentence, the whipping shall be finally stopped 2. 1 Notifications under this section have been published by the Local Governments of Madras, Bombay, the Central Provinces, and British Burma; see Macpherson's Lists, 1884, pp. 127, 272, 505, 552. 2 3 Mad. H. C., Rulings, i. Procedure if punish ment can not be in flicted un der section 394. Execution of sentences convicts. 395. In any case in which, under section 394, a sentence of whipping is, wholly or partially, prevented from being executed, the offender shall be kept in custody till the Court which passed the sentence can revise it; and the said Court may, at its discretion, either remit such sentence, or sentence the offender in lieu of whipping, or in lieu of so much of the sentence of whipping as was not executed, to imprisonment for any term not exceeding twelve months, which may be in addition to any other punishment to which he may have been sentenced for the same offence. Nothing in this section shall be deemed to authorise any Court to inflict imprisonment for a term exceeding that to which the accused is liable by law, or that which the said Court is competent to inflict. 396. When sentence is passed under this Code on an on escaped escaped convict, such sentence, if of death, fine or whipping, shall, subject to the provisions herein before contained, take effect immediately, and if of imprisonment, penal servitude or transportation, shall take effect according to the following rules, that is to say: If the new sentence is severer in its quality than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect immediately. When the new sentence is not severer in its quality than the sentence the convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment, penal servitude or transportation, as the case may be, for a further period equal to that which, at the time of his escape, remained unexpired of his former sentence. Explanation. For the purposes of this section (a) a sentence of transportation or penal servitude shall be deemed severer than a sentence of imprisonment. a sentence of imprisonment with solitary confinement shall be deemed severer than a sentence of the same description of imprisonment without solitary confinement; and (c) a sentence of rigorous imprisonment shall be deemed severer than a sentence of simple imprisonment with or without solitary confinement. on offender 397. When a person already undergoing a sentence of Sentence imprisonment, penal servitude or transportation is sentenced already to imprisonment, penal servitude or transportation, such im- sentenced prisonment, penal servitude or transportation shall commence offence. at the expiration of the imprisonment, penal servitude or transportation to which he has been previously sentenced : for another Provided that if he is undergoing a sentence of imprisonment, and the sentence on such subsequent conviction be one of transportation, the Court may, in its discretion, direct that the latter sentence shall commence immediately, or at the expiration of the imprisonment to which he has been previously sentenced. 398. (1) Nothing in section 396 or section 397 shall be held Saving as to excuse any person from any part of the punishment to which to sections he is liable upon his former or subsequent conviction. (2) When an award of imprisonment in default of payment of a fine is annexed to a substantive sentence of imprisonment, or to a sentence of transportation or penal servitude for an offence punishable with imprisonment, and the person undergoing the sentence is after its execution to undergo a further substantive sentence, or further substantive sentences, of imprisonment, transportation or penal servitude, 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 1. 396 and 397. ment of reforma 399. When any person under the age of sixteen years Confineis sentenced by any Criminal Court to imprisonment for any youthful of offence, the Court may direct that such person, instead of fenders in being imprisoned in a criminal jail, shall be confined in any tories. reformatory 2 established by the Local Government as a fit place for confinement, in which there are means of suitable discipline and of training in some branch of useful industry, or which is kept by a person willing to obey such rules as the Local Government prescribes with regard to the discipline and training of persons confined therein 3. All persons confined under this section shall be subject to the rules so prescribed. 1 Act X of 1886, sec. II. See Act V of 1876, secs. 7, 9. been made by the Local Governments Return of 400. When a sentence has been fully executed, the officer warrant on executing it shall return the warrant to the Court from which execution of sentence. it issued, with an endorsement under his hand certifying the manner in which the sentence has been executed. Power to suspend or remit sen tences. CHAPTER XXIX. OF SUSPENSIONS, REMISSIONS AND COMMUTATIONS OF SENTENCES. 401. When any person has been sentenced to punishment for an offence, the Governor General in Council, or the Local Government, may at any time, without conditions, or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. Whenever an application is made to the Governor General in Council or the Local Government for the suspension or remission of a sentence, the Governor General in Council or the Local Government, as the case may be, may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion. If any condition on which a sentence has been suspended or remitted is, in the opinion of the Governor General in Council or of the Local Government, as the case may be, not fulfilled1, the Governor General in Council or the Local Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted1 may, if at large, be arrested by any police-officer without warrant and remanded to undergo the unexpired portion of the sentence. The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will1. 1 Act X of 1886, sec. 11. Nothing herein contained shall be deemed to interfere with the right of Her Majesty to grant pardons 1, reprieves 2, respites or remissions of punishment. commute 402. The Governor General in Council, or the Local Power to Government, may, without the consent of the person sentenced, commute any one of the following sentences for any ment. other mentioned after it : death, transportation, penal servitude, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, fine 3. punish CHAPTER XXX. OF PREVIOUS ACQUITTALS OR CONVICTIONS. 4 convicted be tried for 403. A person who has once been tried by a Court of Person once competent jurisdiction for an offence and convicted or acquitted or acquitof such offence shall, while such conviction or acquittal remains ted not to in force, not be liable to be tried again for the same offence, game ofnor on the same facts for any other offence for which a fence. different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 2375. A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, paragraph one. A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. A person acquitted or convicted of any offence constituted 1 As to this branch of the prerogative see 3 Inst. 233, and Hawk. P. C. b. 2, c. 37, s. 33. The code is silent as to pleading pardons. 2 Hawk P. C. b. 2, c. 51, s. 8. 3 And see the Prisoners Act, V of 1871, secs. 23, 24, 25. in British India? 5 8 Mad. 296. |