- (1.) BOTH the above mentioned appeals are directed against the judgment of the learned Sessions Judge, Pali, dated 17th of January, 1955, and, therefore, they are disposed of together. BOTH the appellants Bhagwangiri and Bhera have been convicted under sec. 411/75 I. P. C. on two different counts. They have been sentenced to rigorous imprisonment for four years on each count. The sentences have, however, been ordered to run concurrently.
(2.) APPELLANT Bhagwangiri is represented by his counsel Shri Abdul Jalil. The main argument raised by him is that the appellants' trial on the charge of previous conviction is illegal and therefore they should not have been sentenced to enhanced punishment. It is urged that the charge under sec. 75 should have been framed after the appellants' conviction for the subsequent offence. It is further contended that the opinion of the assessors should have been invited on the charge of previous conviction and since it was not done, the trial is vitiated. Lastly it has been urged that even if the trial be held regular, the previous conviction of the appellants was not proved according to law. It would be proper to discuss all the three objections in seriatim. Coming to the first objection, it appears from the record of the case that the Extra Magistrate. First Class, Sojat had framed a charge against the appellants under secs. 457 and 380 I. P. C on 22nd of March, 1954. It appears that the said Magistrate was transferred and another Magistrate came in his place. He found that his predecessor had not framed any charge regarding the fact of previous conviction of the accused and, therefore, he framed an additional charge regarding the appellants' previous conviction on 21st of October, 1954. Thereafter he found that there were sufficient grounds for committing the accused to the court of Sessions and therefore he committed both the appellants to the court of the Sessions Judge, Pali, under sec. 348 Cr. P. C. Learned counsel for Bhagwangiri has urged that in view of the provisions of sec. 310 Cr. P. C. , the charge relating to the previous conviction should not have been read out till the Sessions Judge had convicted the accused of the subsequent offence and that this illegality vitiates the trial. In order to understand the procedure in a case of previous conviction, it would be proper to reproduce secs. 221 (7), 255a and 310 Cr. P. C. which deal with this matter- "221. (7) 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. " "255a. In a case where a previous conviction is charged under the provisions of sec. 221, sub-sec. (7), and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused under sec. 255, sub-sec. (2), or sec. 258, take evidence in respect of the alleged previous conviction, any shall record a finding thereon. " "310. In the case of a trial by a jury or with the aid of assessors when the accused is charged with an offence and further charged that he is by reason of a previous conviction liable to enhanced punishment or to punishment of a different kind for such subsequent offence the procedure prescribed by the foregoing provision's of this chapter shall be modified as follows, namely: - (a) Such further charge shall not be read out in Court and the accused shall not be asked to plead thereto, nor shall the same be referred to by the prosecution, or any evidence adduced thereon unless and until. (i) he has b en convicted of the subsequent offence, or (ii) the jury have delivered their verdict, or the opinions of the assessors have been recorded, on the charge of the subsequent offence, (b) In the case of a trial held with the aid of assessors, the Court may, in its discretion, proceed or refrain from proceeding with the trial of the accused on the charge of the previous conviction. " The first two sections relate to the trial in the court of the magistrate, while the last section namely sec. 310 lays down the procedure to be followed in the court of sessions. It would appeal from sec. 22 (7) that if it is intended to prove previous conviction of the accused in order to hold him triable to enhanced punishment, then it is incumbent upon the court that the fact, date and place of the previous conviction must be stated in the charge. A perusal of sec. 255 (a) would however show that the Magistrate should not record evidence on the charge of the previous conviction till he has convicted the accused under sec. 255 (2) or 258 Cr. P. C. In case the accused is convicted under these sections and the accused does not admit that he has been previously convicted as alleged in the charge, then the Magistrate should record the evidence about the previous conviction of the accused and thereafter he should record his finding thereon. As already stated. , sec 310 Cr. P. C. relates to trials before a court of Sessions. The usual procedure which is followed in the court of Sessions is that when the court is ready to commence the trial, then according to sec. 271 Cr. P. C. , the charge should be read out to the accused and explained to him and he should be asked whether he pleads guilty of the offence of which he is to be tried. Sec. 310 Cr. P. C. lays down a different procedure in cases where the accused is further charged that by reason of a previous-conviction, he is liable to enchanted punishment or punishment of a different kind for the subsequent offence. It clearly says that the procedure prescribed by he foregoing provisions of this chapter must be modified and the charge about the previous conviction should not be read out in the court and the accused should not be asked to plead thereto. The prosecution should not even refer to the charge nor any evidence should be adduced thereon so long as the accused is not convicted of the subsequent offence or the jury have delivered their verdict or the opinions of the assessors have been recorded on the charge of subsequent offence. In other words, when the court is either convicting the accused of the subsequent offence or the jury have delivered their verdict or the opinions of the assessors have been recorded, then only the charge about the previous conviction should be read by the court. "it is obvious that this change has been made so that the assessors or the jurors may not be influenced in their opinion about the guilt of the accused for the subsequent offence simply because there is a previous conviction of the accused. This section does not lay down that the Magistrate who commits the accused to the court of Sessions because of his previous conviction should not frame the charge under sec. 221 (7) Cr. P. C. It only modifies the procedure prescribed in Chapter XXIII which deals with trials before High Courts and Courts of Session and not with the procedure which the magistrate has to follow while the case is pending in his court. The argument of the appellant's learned counsel, therefore, to the effect that the trial was, illegal because the Magistrate framed the charge under sec. 22l (7) is without any force. A magistrate, who commits the accused under sec. 348 Cr. P. C. has got to frame a charge regarding the previous conviction of the accused under sec. 221 (7) and he has also to make an inquiry on that point before committing to the court of Sessions. In the present case it appears from the record of the trial court that the learned Sessions Judge took care to read out the charge relating to the subsequent offence only and no reference was made therein to the previous conviction of the accused. It was only after the trial on the subsequent offence was concluded and the opinion of the assessors was invited that he read out the charge regarding the previous conviction of the appellants. It cannot, therefore, be said that the learned Sessions Judge has, in any way, contravened the provisions of sec. 310 Cr. P. C. The next objection raised by learned counsel is that since the opinion of the assessors was not invited on the charge relating to the previous conviction, the trial is vitiated It is urged that according to sec. 309 Cr. P. C. , the court should ask each of the assessors to state his opinion on all the charges on which the accused has been tried and since the opinion of the assessors was not invited on this particular charge, the trial court had committed a serious error. This argument would have been all right if the appellants had pleaded not guilty to the charge of previous conviction and then the court had recorded its finding on that point without inviting the assessor's opinion, In the present case, the details of all the previous convictions of the appellants were mentioned in the charge and when they were read out to the appellants, both of them pleaded guilty to them The question arises whether the opinion of the assessor ought to have been invited in such a case. Learned Government Advocate has urged that according to sec. 27 (2) Cr. P. C. , if the accused pleads guilty, the court has only to record that plea and it is open to it to convict the accused thereon. It is contended that when the appellants themselves had pleaded guilty regarding the charge of previous conviction, there was no necessity of recording the opinion of the assessors. It may be remarked that strictly speaking, sec. 271 Cr. P. C. relates to the stage of the proceedings prior to the choice of jurors or assessors by the court. If the accused pleads guilty under sec. 271 Cr. P. C. and the court proceeds to convict him thereon, then it need not choose the jurors or assessors. It is only when the accused refuses to plead or does not plead guilty or he claims to be tried or inspite of the plea of guilty on the part of the accused, the court considers it proper to try him instead of convicting him on his plea, that the court proceeds to choose the jurors or assessors and try the case. Since sec. 309 requires that the opinion of the assessors should be invited on all the charges, it is in the fitness of things that the opinion of the assessors should be recorded on the charge of previous conviction even though the accused pleads guilty. In this case it may be a mere formality to record the opinion of the assessors because it can be only in a very rare case that the assessors would give a different opinion about the guilt of the accused when he himself confesses the same. If such a formality is observed, that would satisfy the strict provisions of sec. 309 Cr. P. C. But it may be remarked at the same time that a failure to observe this formality would not vitiate the trial because this omission or error, even if it be so called, cannot be said to occasion a failure of justice and it would, therefore, be curable by the provisions of section 537 Cr. P. C. Learned counsel has referred to the case of Mahindra Nath Malik vs. Emperor (l) in support of his argument. In that case it was certainly held that the verdict of the jury on the question of previous conviction is absolutely necessary. In my opinion, this case does not help the appellants. In the case cited, the accused had denied his previous conviction, but the Judge found it to be proved and convicted that accused without taking the verdict of the jury. It was not a case in which the accused had pleaded guilty and, therefore, it is of no help to the appellants. Lastly, it has been urged that the previous conviction of the appellants was not proved according to law. This argument is untenable because according to sec. 511 Cr. P. C. a previous conviction may be proved by a certificate signed by the officer in charge of the jail if the punishment or any part thereof was inflicted to the accused. In the present case, certificates of the Superintendent, Central Jail. Jodhpur giving all the details of the previous convictions of the appellants are on record. Moreover, the appellants have themselves pleaded guilty and, therefore, this argument is also without any force. The sentence awarded to the appellants is not at all excessive, looking to the number of their previous convictions. Both the appeals are hereby dismissed. . ;