1. This is an appeal by the accused against their conviction by the Presidency Magistrate, 7th Court, Dadar, under Section 454 of the Indian Penal Code, that is to say, house-breaking by day, and on the admission of the appeal this Court gave notice to enhance the sentences of nine months' rigorous imprisonment upon each of them.
2. The accused were caught red-handed. They were seen by Miss Daruwalla bending over the lock of the door of a flat on the ground floor of a building. When she raised an alarm, accused No. 1 threw away a jemmy which was in his hand, and both of them ran away, but they were caught. So that there can be no doubt whatever that they were guilty of the offence of which they were convicted.
3. Recently this Court has had to send for the record in a considerable number of cases in the Courts of Presidency Magistrates, and to enhance the sentences passed. That practice is to be regretted, because it involves a considerable waste of public time and money, and tends moreover to lessen the confidence which the public should feel in the discretion of Magistrates. It seems, therefore, desirable to say something about the principles which, we think, should be adopted in relation to sentences.
4. The determination of the sentence, within certain limits, is in the discretion of the trial Court, and it is in many cases one of the most delicate matters with which criminal Courts have to deal. The cases in which we have enhanced sentences have all been cases of prisoners with previous convictions. Magistrates do, I think, appreciate the desirability of avoiding sending a first offender to prison for an offence which is not of a serious character, and thereby running the risk of turning him into a regular criminal. In applying the provisions of Section 562 of the Criminal Procedure Code, it is better to err (if err one must) on the. side of liberality. But where a man has shown from his past actions that he intends to adopt a criminal career, three things should be remembered. In the first place, it is necessary to pass a sentence upon him which will make him realize that a life of crime becomes increasingly hard, and does not pay. In the second place, the sentence should serve as a warning to others who may be thinking of adopting a criminal career. In the third place, the public must be protected against people who show that they are going to ignore the rules framed for the protection of society. One cannot, of course, determine sentences on old offenders by any rule of thumb. One cannot say that so many past convictions justify such and such a sentence. In each case the circumstances have to be considered. The number of past convictions is one matter to be looked at; the interval of time which has elapsed between one conviction and another, and particularly since the last conviction, is important; and, so, of course, is the nature of the offences previously proved.
5. Now, in the present case accused No. 1 is a man of about twenty-nine years of age with a very bad record. He started in Rangoon, where in March, 1936, he was convicted under Section 454 of the Indian Penal Code, which is the same section under which he was convicted on the present occasion, and he was given twenty lashes. In June, 1936, he seems to have been bound over under some Burma Act, and in October, 1936, he was given one year's rigorous imprisonment for an offence under Section 457 of the Indian Penal Code. On February 22, 1937, he was expelled from Burma under a local Act. He then seems to have come to Bombay, and on October 1, 1937, he was given one year's rigorous imprisonment for an offence under Section 3 80 of the Indian Penal Code, that is theft, and on April 14, 1939, he was given another year's rigorous imprisonment for an offence under Sections 411 and 414, that is receiving stolen property, and then on April 9, 1940, he was given nine months' rigorous imprisonment under Section 128 of the Bombay City Police Act, and on December 10, 1940, a similar sentence was passed upon him. He is, therefore, a man who started his criminal career in another place, and then, when turned out of his native country, comes to Bombay, and shows a deliberate intention to live by crime ; and the learned Magistrate on this occasion passed a less sentence than those imposed on the two previous convictions in Bombay. It was the view of the former Commissioner of Police in Bombay that the lenient sentences passed by Presidency Magistrates encouraged criminal characters from other parts of India to come and settle in Bombay, and this case suggests that there may be some force in that view. In our opinion, the learned Magistrate was plainly wrong in imposing so lenient a sentence on accused No. 1, and we enhance the sentence on him to one of two years' rigorous imprisonment, that being the maximum sentence which the Magistrate could have imposed.
6. Accused No. 2 has a Jewish name, and is said to be aged 23. He has had nine previous convictions, though the trials and sentences took place only on two days. He was convicted of four offences on December 6, 1939, and of five offences on December 5, 1940, but the offences were separate offences committed in different parts of Bombay and on different dates, so that it is correct to say that he has actually got nine previous convictions. He seems to have been leniently dealt with in the past, and the time for leniency has, I think, in his case also passed, but his is not such a bad case as that of accused No. 1. We think the learned Magistrate should 'have imposed a heavier sentence than nine months' rigorous imprisonment, and we propose to enhance the sentence on accused No. 2 to one year's rigorous imprisonment.