1. The assused No. 2 in this case has been convicted of robbery under Section 392, Indian Penal Code, and sentenced to suffer rigorous imprisonment for eighteen months by the trial Magistrate, though he is a member of a criminal tribe, and though he was once previously convicted in April 1903 and sentenced to six years' rigorous imprisonment under Section 395 by the Sessions Court of Satara.
2. The District Magistrate has made a reference to this Court recommending that the conviction and sentence be set aside and that the accused No. 2 be committed to the Court of Session for trial, in view of the provisions of Section 23 of the Criminal Tribes Act (III of 1911).
3. We have to consider tirst whether Section 23(1), Clause (a) applies to this cafe, and, secondly, if it applies, whether, under the circumstances, it is necessary to give effect to the District Magistrate's recommendation.
4. As regards the construction of Section 23, which is not quite easy, I am of opinion that though the first conviction is prior to the Act of 1911 and the present conviction is the first after the Act and second in point of fact, it is 'a second conviction' within the meaning of Clause (a) of Section 23, Sub-section (1). The 'second conviction' contemplated by that clause need not be the second conviction after the Act, nor is it necessary that it should be the second in fact. Taking the conviction or convictions prior to the Act as one group constituting one conviction, the first one after the Act would be the second conviction for the purpose of the section though in point of fact it may be one more in a series of convictions prior to the Act. Clause (b) of the same sub-section does not apply to the present case. But in order to be able to construe the section as a whole, we have necessarily considered it; and in my opinion a third conviction within the meaning of the clause must be at least the second after the Act.
5. This is the construction adopted by the Madras High Court in In re 8ettamani I.L.R. (1916) Mad. 923. Though this construction is not free from difficulty, on the whole I think that out of all the alternative constructions, this seems to be the least open to objection, having regard to the words of the section, as also to the scope and object of the section. I am, therefore, of opinion that the section applies to the present case.
6. It appears, however, that the trial Magistrate was aware of all the material facts. In the exercise of his discretion he has decided the case instead of committing it to the Court of Session for trial, and passed a sentence within his powers. It is true that he has not referred in terms to Section 23 of the Criminal Tribes Act of 1911. But that does not necessarily mean that he was not alive to the provisions of the section. Assuming, however, that he passed the sentence without advertence to these provisions, we have to consider whether it is necessary to interfere now. The section provides that the accused shall be punished in accordance with the requirements of Clause (a),' in the absence of special reasons to the contrary to be mentioned in the judgment. The previous conviction in this case was in 1909; and presumably after the accused came out of jail in 1909 or earlier, he has led an honest life for over ten years. That is, in my opinion, a special reason under the circumstances of this case for not punishing the accused under the section.
7. I would, therefore, discharge the rule.
8. I agree. Whatever view I might be inclined to take were the matter res integra, I am, as it is, content to follow the decision of the Madras High Court cited by my learned brother. Section 23(a) of the Criminal Tribes Act of 1911 is no doubt susceptible of more than one interpretation and there are perhaps more than one which are equally plausible. But in such a matter as this where one High Court has interpreted the section, I do not think that any advantage would be gained by adopting another interpretation, more especially as the interpretation which has found favour with the Madras High Court, is, on the whole, I think, reasonable. As to the particular case I have nothing to add to the remarks of my learned brother.