SUGALI NAGE NAIK Vs. STATE
HIGH COURT OF ANDHRA PRADESH
SUGALI NAGE NAIK
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Basi Reddy, J. -
(1.) A passing observation by a Division Bench of this Court in
Kamya v. The State, 1959 A.L.T. 851: A.I.R. 1960 A.P. 490.
regarding the scope of section 75 of the Indian Penal Code, has
occasioned this reference by the Sessions Judge of Anantapur.
(2.) It appears from the letter of reference that in C.C. No. 62 of 1961 on the file
of the Judicial First Class Magistrate, Dharmavaram, one Sugali Nage Naik was
charge-sheeted by the Police under sections 379 and 75, Indian Penal Code. The
allegation against him was that on the night of 6th June, 1961, he had committed
theft of a goat from the house of one Venkataramudu and that consequently he was
liable to be punished under section 379, Indian Penal Code, and further, that by
reason of a previous conviction and a sentence of nine months' imprisonment suffered
by the accused in C.C. No. 37 of 1958 under sections 457 and 380, Indian Penal
Code, he was liable to enhance punishment under the provisions of section 75,
Indian Penal Code. The learned Magistrate who tried the case, accepted the
evidence for the prosecution and convicted the accused of an offence under section
379, Indian Penal Code, and sentenced him to suffer rigorous imprisonment for four
months. The accused preferred an appeal against his conviction and sentence
(Criminal Appeal No. 114 of 1961) to the Court of Session, Anantapur, but the
conviction and sentence were confirmed and the appeal was dismissed.
Sometime thereafter, the Sessions Judge of Anantapur, while perusing the
calendar, found that the Magistrate had not framed a charge under section 75,
Indian Penal Code, although the police had filed a charge-sheet under that section
also. So the learned Sessions Judge called for the remarks of the Magistrate. The
latter gave his explanation for the omission to frame a charge under section 75,
Indian Penal Code, by saying that he had relied on an observation contained in a
decision of the Andhra Pradesh High Court in Kamya v. The State, 1959 A.L.T. 851 :
A.I.R. 1960 A.P. 490.
referred to by the Magistrate occurs at page 853 of the report and runs thus:
"In this case, the prosecution quite rightly, did not ask for
enhanced sentence, because section 75,
Indian Penal Code, would be inapplicable. The sentence awarded
to the accused under the previous
conviction was only two months, while the minimum that is
required for enhancement of punishment
is three years under section 75, Indian Penal Code,
so that the previous conviction of the accused
could not be proved against him or any evidence allowed to be adduced threof........"
(3.) The learned Magistrate explained that inasmuch as the previous conviction of the
accused in the case before him had resulted only in a sentence of nine months' rigorous
imprisonment, and since the High Court had indicated that the minimum sentence
required for pressing section 75, Indian Penal Code, into service was three years
he had refrained from framing a charge under that section.
The learned Sessions Judge felt that the above-quoted observation in the judgment
of the High Court was not in conformity with the terms of section 75, Indian
Penal Code, which require that the previous conviction need only be in respect of
an offence punishable with imprisonment of either description for a term of three
years or upwards, and the Magistrate was in error in not framing a charge under
section 75, Indian Penal Code. The Sessions Judge has, therefore, reported the
case for orders of this Court under section 438, Criminal Procedure Code.
We may say at once that the aforesaid observation of a Division Bench of thi
Court does lend itself to the interpretation put upon it by the Magistrate. Bu
evidently that observation must have been the result of a slip in reading the section
and the learned Judges could not have meant to lay down anything contrary to the
express terms of the section.;
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