Decided on February 27,1967



- (1.) The accused in this case has been convicted, by the Assistant Sessions Judge, Kozhikode, of theft, at 5 a. m. on July 8, 1966, from the compound of Pw. 1's residence, of 10 coconut saplings. According to the prosecution he was found red-handed by Pw. 1 and his friend, Pw. 2, on their way to the mosque for the morning prayer, was chased for about 15 yards and taken in a car to the Police Station, Wandoor, about 3 1/2 miles away where they reached by about 11 a.m. and gave the first information. The accused pleaded that he purchased the coconut saplings from Edakkara and was taking them for delivery to his uncle at Wandoor when on his way Pw. 1 and Pw. 2 met him and suspecting the coconut saplings in his hand to be stolen property dragged him to the Police Station at about 3. 30 p. m. The Sub Magistrate, Manjeri, committed him to the Sessions. The Assistant Sessions Judge who tried him did not believe his defence, found him guilty, convicted him under S.379 I. P. C. and sentenced him to two years' rigorous imprisonment to be followed by Police surveillance for two years on the ground that he had been given two years' prison-term in Sessions Case No. 14 of 1964. On going through the calendar in the case, I felt the sentence to be too severe and unmerited and therefore issued notice to the State to show cause why the sentence should not be reduced. Shri M. A. Joseph appeared for the State, explained the scope and meaning of S.75, Indian Penal Code, and conceded frankly and fairly as he ought to do that the sentence was bit too severe.
(2.) It is a matter for regret that, in spite of several reported precedents all in the same trend there prevails a serious misunderstanding as to the scope and meaning of S.75 I. P. C. among certain Magistrates and Sessions Judges, who seem to assume that the Section is a mandate to inflict an enhanced or severe sentence on an offender who had previous convictions, irrespective of the nature and gravity of the offence concerned. It is pertinent to remember that the scheme of the Indian Penal Code is to fix a measure of punishment for every kind of offence; and ordinarily the fact of previous convictions is not to be taken into account either in judging the guilt evidence of bad character of the accused is tabooed under S.54 of the Evidence Act or in fixing the punishment. S.75 I. P. C. is an exception to that rule. It singles out offences under Chapter XII (relating to offences against coinage and stamp law) and Chapter XVII (relating to offences against property), and empowers the Court to award a greater measure of punishment for a repetition of the crime. Apart from the indication in S.348 Crl. P. C., as to when the extra ordinary powers under S.75, I. P. C. are to be invoked, it is pertinent for those who deal with the life and liberty of fellow-citizens in a free country to remember that abhorrence of a criminal is not an unmixed virtue, that the human frame invariably contains some finer tissues and it does no good to anybody to devitalize those tissues rather than revitalize them and that therefore punishments should not be more severe than is strictly warranted by the circumstances of the case at hand.
(3.) S.75 of the Indian Penal Code reads: "75. Whoever, having been convicted 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." S. 348(1) of the Criminal Procedure Code, which lays down the procedure to be followed by Magistrates in cases coming under the scope of S.75 T. P. C. runs thus: "348. (1) 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 Session 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: I will first take the substantive aspect and then the procedural.;

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