1. The offence of burglary of which the accused was convicted in the present case was committed by him on July 13, 1925. Ha was convicted by the Sessions Judge on November 4, 1925. After the date of this first offence, but before his conviction for that offence, he committed a second offence of burglary, viz., on August 1, 1925, for which he was sentenced by the Magistrate, on August 26,1925, to two years' rigorous imprisonment.
2. Now, when the Sessions Judge in the present case came to sentence the prisoner, he considered that he was entitled to take into consideration the conviction in respect of the second offence of August 1, and to give him enhanced punishment under Section 75 of the Indian Penal code. Accordingly he passed a sentence of five years' rigorous imprisonment to take effect on the expiry of the Magistrate's sentence of two years for the second burglary, and to be followed on release by a notification of his residence for five years under Section 565 of the Criminal Procedure Code. If, however, one eliminates the conviction for the second burglary, the four previous convictions of the accused were only for petty thefts as pointed out by the Magistrate; and the longest previous sentence was only for two or four months' rigorous imprisonment.
3. In my opinion, the learned Sessions Judge was not entitled, under Section 75 of the Indian Penal Code to give enhanced punishment in respect of the second offence of August 1, 1925, because it was not an offence coming within the operation of that section. In Reg. v. Sakya valad Kavji (1863) 5 B.H.C.R. 36 it was held that Section 75 did not apply where the offence for which the sentence was passed was not committed subsequent to any conviction. That section runs:
Whoever having been convicted...of an offence...shall be guilty of any offence...shall be subject for every such subsequent offence to' etc.
4. But here when the accused committed the second offence, he had not been convicted of the first offence. Consequently the section did not apply to it.
5. If then the Sessions Judge was only entitled to look at the four previous convictions, which were for petty thefts, we think that the sentence passed was excessive. In fact this sentence when added to the Magistrate's sentence for the second offence amounted to this that the accused was to be either in prison or under police supervision for a period of twelve years. In Emperor v. Gala Mana : AIR1924Bom453 attention has been drawn to the undesirability of inflicting unduly severe sentences. In the present case, we think, that the ends of justice will be met if the sentence is reduced to one year's rigorous imprisonment to take effect on the expiry of the existing sentence of two years' rigorous imprisonment, and that on release the accused should notify hisresidence under Section 565 for another two years. The order of the learned Sessions Judge of Poona will be varied accordingly,
6. I agree.