Ranawat, J. - (1.) THIS is a revision petition by Hukamchand against the judgment of the Sessions Judge, Jaipur District, dated the 25th January, 1954 confirming the judgment of the Railway Magistrate, Jaipur, of the 30th of November, 1953 by which the applicant was I. P. C. to two years' rigorous imprisonment.
(2.) THE prosecution case is that one Jagdish along with his sister Basanti was coming from Calcutta and he boarded the train which leaves Agra at 7 P. M. on the 22nd September, 1953. THE accused applicant also sat in the same compartment. At Mandawar Railway station while Jagdish and his sister were asleep, the accused applicant felt the comartment along with a box belonging to Jagdish. When the train whistled Jagdish fortunately woke up and found that the person who was travelling with him was missing and his box was not there. He at once got down and tried to search the accused. He found him near the Customs outpost along with his box. He informed the police constable on duty and got the accused arrested along with his box. THE accused was challaned by the police under sec. 379 read with sec. 75 I. P. C. to the court of the Railway Magistrate. After holding an enquiry the Magistrate framed a charge under sec. 379 I. P. C. and later framed another charge under sec. 379 read with sec. 75. THE accused denied having committed theft in his statement under sec. 342 Cr. P. C. but he pleaded guilty to the charge which was read over to him under sec. 379 read with sec. 75 I P. C. THE accused was then convicted on his plea of guilty and sentenced as stated above. On appeal, the learned Sessions Judge upheld the judgment of the first court. In this revision the learned counsel of the accused has argued that the accused could not have been held liable under sec. 75 I. P. C. merely on his admission when there was no evidence as required by sec. 511 Cr. P. C. Reliance is placed on the following decisions - Dayaram. vs. Emperor (1), Sardar Ahmed vs. Emperor (2), Ghous Baksh Mohammed Amin vs. Emperor (3), In re : Turimella Kurmarha & others (4) and Suresh Kumar vs. State (5 ). Mr. Bhargava on behalf of the Government has replied that the two Lahore cases and the Sind case referred to by the learned counsel of the accused have been discussed in Emperor vs. Dalip Singh (6) which is a Full Bench decision and it has been laid down by that decision that though it is an irregularity to question an accused person regarding his previous conviction in a statement under sec. 342 Cr. P. C , yet such an irregularity is not material and the combined effect of secs. 221 (7) and 255a Cr. P. C. is that the accused is to be charged with the substantive offence and, in anticipation, with the previous convictions, the form of the charge being that given in Form No, 28 in schedule 5 of the Code, and if on that charge being put to him he admits the convictions by pleading guilty to the whole charge, there is no necessity for the prosecution to prove those convictions as contained in sec. 511 of the Code. The cases Dayaram vs. Emperor (l), Sardar Ahmed vs. Emperor (2) and Ghous Baksh Muhammad Amin vs. Emperor (3) need not be discussed here as they have been discussed in the Full Bench judgment of the same court referred to by Mr. Bhargava. The case in re : Turimella Kurmenna (4) is not very helpful, as that case was tried by a Court of Sessions and as in that case no question was put to the accused regarding his previous conviction The point therefore did not arise in that case as to whether an admission of the accused regarding previous conviction was sufficient to form a basis for enhanced punishment under sec. 75 l. P. C. The following observations are relied upon by the learned counsel of the applicant which appear in the judgment of Suresh Kumar vs. State : - "this Court has had occasion to point out several times that proof of previous convictions must be given in the proper manner required by the Evidence Act before the provisions of sec. 75 of the Penal Code can be invoked. The appellant has not been a habitual offender, and sec. 75 cannot be applied merely on an admission made by the appellant when there is no proof of his previous convictions. An accused person cannot be asked to explain a fact which has not been proved by proper evidence, and since the prosecution did not produce evidence of any previous convictions, the learned Magistrate was in error in examining the appellant upon this matter. " Sec. 255 A was introduced in the Code by Criminal Procedure Amendment Act of 1923 and it provided that evidence of a previous conviction for the purpose of affecting the punishment to be awarded can be taken only after the Magistrate has convicted the accused. Ordinarily therefore on evidence about the previous convictions can be taken by the Magistrate before conviction and charge under sec. 75 has to be framed in anticipation of the proof that is to come on the record later on by virtue of sec. 255 A Cr. P. C. It appears that the learned Judge when he said that the provision of the sec. 75 should not be invoked without there being some evidence about previous conviction on the record meant these remarks in so far as the question of conviction under sec. 75 was concerned. They need not be read as applying to the stage of the framing of a charge, otherwise they would directly conflict with the provision of sec. 255a Cr. P. C Under sec. 342 no question can be put to the accused unless there is some evidence on the record and in this view of the matter an accused person cannot be questioned regarding his previous conviction in Statement under sec. 342 Cr. P. C. and the observations referred to above are on this particular point not contrary to the view taken in Dalip Singh's case (6) referred to above. The learned Judge however should not be understood to mean that an accused person cannot be convicted on his plea of guilty. The proposition of law which has been laid down in Dalip Singh's case (6) appears to be a correct one and I am in respectful agreement with it. In the present case the learned Magistrate who tried the case did not put any question to the accused in his statement under sec. 342 regarding his previous conviction It was only after a charge under sec. 379 read with sec 75 I. P. C. was framed that the accused was questioned whether he pleaded guilty to the charge. The statement of the accused was then recorded in which the accused was confessed having stolen Jagdish's box and also admitted his previous conviction. The accused was then convicted on his plea of guilty. The learned Magistrate correctly applied the procedure laid down under sec. 255 A and the objection taken by the accused now has no force. This revision fails and is dismissed. . ;