IN RE: NATTAYYAN Vs. STATE
LAWS(MAD)-1970-4-33
HIGH COURT OF MADRAS
Decided on April 09,1970

In Re: Nattayyan Appellant
VERSUS
STATE Respondents

JUDGEMENT

N.Krishnaswamy Reddy, J. - (1.) THE point involved in this reference and revision is whether it is necessary to frame a charge under Section 75, Indian Penal Code, by the Magistrate in Warrant Cases for proving previous conviction for the purpose of awarding enhanced sentence to the accused convicted of offences punishable under Chapter XII or Chapter XVII of the Code with imprisonment of either description of a term of three years or upwards.
(2.) THE brief facts leading to the reference by the learned District Magistrate, North Arcot are these : During the scrutiny of calendar and judgments of the Additional First Glass Magistrate, Vellore, the learned District Magistrate noticed that the accused who was the same in C.C. Nos. 117 to 119 of 1968 on the file of the said Court was sentenced to undergo Rigorous Imprisonment for six months under each of the two counts viz., 457 (latter part) and 380, Indian Penal Code, the sentences to run concurrently, though he was previously convicted by the same Court for a similar offences in C.C. No. 305 of 1965 on 11th December, 1965 and sentenced to undergo Rigorous Imprisonment for nine months. The learned District Magistrate felt that the Additional First Class Magistrate should have framed a charge under Section 75, Indian Penal Code, in respect of his previous conviction in C.G. No. 305 of 1965 and awarded a more severe sentence than what was imposed by him. He therefore, called for remarks from the Additional First Class Magistrate for not having framed charge under Section 75, Indian Penal Code. The Additional First Class Magistrate submitted a report stating that it was not necessary to frame charge under Section 75, Indian Penal Code, unless he felt that the sentence to be imposed by him would not be adequate as provided for the offence and it was only necessary to do so in the Court of Sessions where a higher sentence than the ordinary maximum sentence has to be imposed. The Additional First Class Magistrate in his report relied upon a decision of a Division Bench of the Kerala High Court in State of Kerala v. Krishnan Kutti, (1966) M.L.J. 296. The learned Additional First Class Magistrate further submitted that he had not framed supplemental charge under Section 75, Indian Penal Code, relying on the said decision. The learned District Magistrate in. his reference pointed out that under Rule 65 of the Criminal Rules of Practice, the charge under Section 75, Indian Penal Code, should be framed in all cases where the punishment of an accused person is affected. He also stated in his reference that under Rules 308 and 309 of the Criminal Rules of Practice, the previous convictions and sentences shall be stated at the end of the judgment in all cases where the rules require a judgment to be submitted and in other cases, the particulars of previous convictions and sentences shall be invariably entered in the column of remarks and that in all sessions calendars submitted to the High Court particulars of previous convictions and sentences should be given except in cases of acquittal and a note should be made as to whether any or all of those previous convictions have been admitted by or proved against the accused. These Rules have been referred to by the learned District Magistrate obviously for the reason that irrespective of the nature of the punishment awarded to the accused person, the previous conviction, if any, of the accused should be noted. The learned District Magistrate also -referred to the practice in vogue in the Courts of Magistrates that if the Magistrate finds an accused person guilty of an offence mentioned under Section 75, Indian Penal Code, and convicts him, if there is a previous conviction against the said accused, he would frame a charge under Section 75, Indian Penal Code, invariably for awarding a more deterrent sentence than ordinarily given. The learned District Magistrate suggested that in the case of old offenders dealt with by the Magistrates that the existing practice prevailing in many of the Courts should be followed and that a supplemental charge under Section 75, Indian Penal Code, has to be framed where the Magistrate on conviction considers that the accused would be liable for enhanced punishment than that which was awarded in the previous case. He was therefore, of the opinion that the procedure followed by the Additional First Class Magistrate in the three cases without framing charges under Section 75, Indian Penal Code, and awarding sentence of six months less than the sentence imposed on the accused in the previous case, namely, nine months, was wrong. He requested in his reference to quash the conviction and sentence imposed on the accused and remand the case for fresh disposal according to law. To appreciate the point involved in this reference, the following provisions of the Indian Penal Code and the Criminal Procedure Code have to be considered: Section 75, Indian Penal Code, run thus: 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 Chapters 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. The head note to Section 75 is as follows: Enhanced punishment for certain offences under Chapter XII or XVII after previous conviction. This section enables the Court to impose enhanced sentence upto the maximum of Imprisonment for life or to imprisonment of ten years of either description for any offence committed by a person mentioned therein if he had been previously convicted for the like offence irrespective of the maximum sentence provided for such offence. No minimum sentence is provided under this section
(3.) SECTION 221(7), Criminal Procedure Code, in respect of framing of charges lays down as follows: If the accused having been previously convicted of any offence is liable by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge. If such statement has been omitted, the Court may add it at any time before sentence is passed. This clause deals with the manner of framing a charge where enhanced punishment is to be awarded by reason of previous conviction. Section 511 Criminal Procedure Code provides as to the mode of proof of previous conviction in any enquiry trial or other proceeding under the Criminal Procedure Code Section 348(1) Criminal Procedure Code, provides in respect of trial of persons previously convicted of offences against property and it runs thus: Whoever, having been convicted of an offence punishable under Chapter XII or Chapter XVII of the Indian Penal Code with imprisonment for a term of three years or upwards, is again accused of any offence punishable under either of those chapters with imprisonment for a term of three years or upwards, shall if the Magistrate before whom the case is pending is satisfied that there are sufficient grounds for committing the accused, be committed to the Court of Sessions or High Court, as the case may be, unless the Magistrate is competent to try the case and is of opinion that he can himself pass an adequate sentence if the accused is convicted. Similarly, Section 349(1), Criminal Procedure Code, is as follows: (1) Whenever a Magistrate of the second or third class, having jurisdiction is of opinion after hearing the evidence for the prosecution and the accused that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict or that he ought to be required to execute a bond under Section 106, he may record the opinion and submit his proceedings, and forward the accused to the District Magistrate or Sub -Divisional Magistrate to whom he is subordinate. The other clauses are omitted as not relevant.;


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