S.B.C.R. No.155 of 1990

13th December, 1991.

Petitioner Counsel: Mr. K. N. Sharma, Public Prosecutor for State.

Cases Cited:
1960 Cri LJ 1302,AIR 1960 AP 490 [Para 5]

JUDGMENT

ORDER :-The petitioner has been convicted for the offences u/Ss. 457, and 380, IPC read with S.75, IPC and sentenced as under by the Judicial Magistrate, Sawai Madhopur by his judgment dated 17th October, 1984:

Under Section 457 read with Section 75 IPCOne year's Rigorous Imprisonment with a fine of Rs. 100/- in default of payment of fine to undergo one month S.I.Under Section 380 read with Section 75 IPCSix months R.I. with/ fine of Rs. 50/and in default of payment of fine to further undergo S.I. for 15 days.

The scope of revision is very limited and hence the facts shall be mentioned very briefly. One Kalu reported to Security Officer, Jaipur Udyog Limited, Sawai Madhopur that during his absence an alarm clock and Rs. 195/- were stolen and the Security Officer reported the matter to Police Station Sawai Madhopur where the case was registered. After investigation challan was put up and after trial the petitioner was found guilty of offences under Ss.380 and 457, IPC. This finding was recorded on 27-6-1983 and thereafter an additional charge u/S. 75, IPC was framed. The Additional charge was read over to the petitioner and he stated that his previous conviction had been set aside in appeal. In order to find out whether the petitioner had been convicted earlier the learned Magistrate recorded the evidence and thereafter came to the conclusion that the earlier conviction had been maintained in appeal for offence under S. 454, IPC and the appeal had been accepted only so far as S. 75, IPC was concerned. This

time, therefore he sentenced the petitioner for offences under Ss. 457 and 380, IPC with the aid of S. 75, IPC.

2. So far as oral evidence in the case is concerned, it has already been considered by the learned Sessions Judge and the charge of offences under Ss.458 and 380, IPC stand proved against the petitioner.

3. The learned counsel for the petitioner has contended that S. 75, IPC is applicable only when the previous conviction is under Chapter XII or Chapter XVII and the imprisonment awarded is for the term of three years or upwards. It is only when both these conditions are satisfied that the accused would be liable to enhanced punishment as is provided in S. 75, IPC. His second contention is that the petitioner has been sentenced not for the substantive offence of S. 457, IPC and 380, IPC but with the aid of S. 75, IPC and when S.75, IPC goes away as it is not applicable then no punishment could be awarded the accused petitioner should be acquitted of the offences u/Ss. 457 and 380, IPC and should not be sentenced, by this court.

4. In the alternative it has been contended that the theft relates to a time-piece worth Rs. 60 and cash which is nominal and this occurred in the year 1978 and after that they petitioner is not involved in any case and he has also remained in custody for some time, he should be released on the period for which he has already remained in Jail.

5. The learned Public Prosecutor has supported the decision of the learned Magistrate and the learned Sessions Judge and contended that even if S.75, IPC is not applicable then this court can sentence the petitioner for the offences under S. 457 and 380, IPC for which he has already been held to be guilty.

Section 75, IPC reads as under:

"75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction whoever, having been convicted,-

(a) by a Court in India, 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 with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years."

A plain reading of this provision goes to show that the previous conviction ought to be for offence punishable under Chapter XII or Chapter XVII and the sentence imposed is three years or more than that. If the sentence is less than three years or the offence does not fall within any of the two Chapters then S.75, IPC would not be applicable. If any authority is required then reference may be made to In re Kamya, Accused appellant, AIR 1960 AP 490 : (1960 Cri LJ 1302), wherein it has been held that the minimum required for enhancement of punishment under S. 75, IPC is that the previous conviction of the accused should have resulted in punishment of three years or more. Here the petitioner in the previous case had been sentenced to six months imprisonment only for the offence under S. 454, IPC, thus he would not become liable to enhance punishment u/S. 75, IPC as the earlier sentence was not for three years or more.

The next question which arises is whether the petitioner can be sentenced for the offences u/Ss. 457 and 380, IPC or he has to be acquitted because the Magistrate has sentenced him with the aid of S.75, IPC.

6. Here it may be pointed out that S. 75, IPC is not an offence similar to S. 34, IPC or

S.149, IPC so as to say that when the conviction is with the aid of S. 75, IPC then punishment for the substantive offence cannot be awarded. S.75, IPC is a provision which enables the court to pass an enhanced sentence against the accused, who has been sentenced on a previous occasion. If it is found that the conviction on the previous occasion is not proved or that the sentence on the previous occasion was not of three years or more then S.75, IPC would not be applicable and it would mean that the accused is not liable to be punished with enhanced term of imprisonment. Non-applicability of S. 75, IPC has nothing to do with the proof or guilt of the main offence. If S.75, IPC is found to be inapplicable then it would not mean that the finding of guilt for certain offences recorded by the Magistrate will also go away. The conviction for the offences would stand and the accused would be liable to be sentenced for the main offence and the sentence cannot be enhanced with the aid of S.75, IPC. The contention of the learned counsel for the petitioner that the petitioner should be acquitted of the offences under Ss. 457 and 380, IPC is not acceptable.

7. From the discussions in the judgment of the learned Magistrate about the previous conviction of the petitioner, it appears that the sentence in the previous case was also with the aid of S.75, IPC and on appeal the conviction u/S. 75, IPC was set aside. This shows that there were two convictions before the present case. Normally such an offence should be dealt with strictly, but in the present case the incident occurred in the year 1978 and 13 years have rolled by; now and the petitioner is running a Parchuni shop. He has remained in Jail for about 85 days and when S. 75, IPC is not applicable then the period for which the petitioner has already remained in custody is considered to be adequate punishment for the offences u/Ss. 457 and 380, IPC.

8. This revision petition is accepted as far as applicability of S. 75, IPC for the purposes of awarding sentence is concerned, it is held that he is not liable to enhanced penalty by virtue of S.75, IPC. His conviction for offences under S. 457 and 380, IPC is maintained and the sentence already undergone by him is held to be adequate. However, he shall deposit a sum of Rs.150/- for both the offences within a period of one month. In default of payment of this amount he shall under go simple imprisonment for 15 days.

Order Accordingly