- (1.) GYARSI appellant has been conviced under sec. 41 read with sec. 75 of the Indian Penal Code by the learned Sessions Judge, Bharatpur and sentenced to four year's rigorus imprisonment.
(2.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mr. A. S. Chaturvedi on behalf of the appellant laid stress upon two points. They are as follows: - (1 ). . . . . . . . . . . . . . (2 ). Under sec. 310 of the Criminal Procedure Code, a previous convcition ought to have been referred after the opinion of the assessors had been taken and that portion of the charge which related to sec. 75, ought not to have been read at the beginning of the trial. As the charge reagarding previous conviction was also out at the beginning of the trial and before the opinion of the assessors was taken, the lower court committed an illegality in the trial of the case which should vitiate the trial. . . . . . . . . . . . As regards non-compliance with the provisions fo sec. 310, it has been agrued that it was certainly irregular on the part of the Sessions Judge to have allowed the whole charge including that of previous conviction to be read at the beginning of the trial and also to allow the evidence of previous conviction to be produced before the opinion of the assessors was taken. It was, however, argued that it was only an irregularity which caused no prejudice to the accused and therefore the trial cannot be held to be vitiated on the ground of this irregularity alone. In view of the order which I am going to make, it is not necessary for me to go into the first question, So far as the second question is conerned, there is no dobt that the learned Sessions Judge contavened the provision of sec. 310 inasmuch as, he allowed the whole charge including the previous conviction to be read at the commencement of the trial and also ask questions from the accused about his previous conviction in his examination and allowed evidence on this point to be produced before the opinion of the assessors was taken. The learned Deputy Government Advocate concedes that the procedure by the learned Sessions Judge was irregular. He, however, says that no miscarriage of justice has taken place and the irregularity is curable under sec. 537 of the Criminal Procedure Code. To my mind even if it is necessary that it should be shown that miscarriage of justice has taken place, the circumstances of this case show that it has taken place by the irregular procedure adopted by the learned Sessions Judge on account of the whole charge including the portion about previous conviction having been read at the beginning of trial and the accused having been asked question about his previous conviction and the evidence having been produced on this point before the opinion of the assessors was taken, the assessors had not to form their opinion on the evidence of the present offence alone. They must have been influenced to some extent by the evidence of previous conviction and the learned Sessions Judge is also influenced to a certain extent by the unanimous opinion of the assessors as appears from his judgment. It was held in the case- of Raju vs. Emperor (l) - "that the provisions of sec. 310 are imperative and that the further charge about previous convictions and the accused's statement in respect thereof should not have been read out and he should not have been questioned in respect thereof unless and until he had been convicted or the opinions of the assessors had been recorded on the charge of the subsequent offence. " In the Patna case of Teka Ahir vs. Emperor (2) it was held by a Division Bench of Patna High Court that - "it is illegal during the course of the trial of an accused person for a substantive offence, to record evidence of a previous conviction. Such evidence amounts of evidence of bad character and is expressly forbidden by sec. 54 unless and until the accused offers evidence of good character. " I am unable to maintain the conviction and sentence of the accused under the circumstances of the present case. The appeal is allowed, the conviction and sentence are set aside and the case is sent back to the learned Sessions Judge, Bharatpur for retrial according to law. .;