(1) In this case, the State Government seeks to have the conviction of the respondent quashed. The respondent was charge - sheeted under Ss. 454 and 380, Penal Code before the Stationary Sub Magistrate. Kavali, the case against him being that he broke into house of one Danam Annamma P. W. 1 in the case at about 10-30 A. M. and stole a sum of Rs. 10/- in cash and some old clothes worth about Rs. 65/-. According to P. W. 1, she locked here house and went out at about 10-30 A. M. on 29.4.1954 to a relative's house and returned shortly thereafter to find the back door of her house open and some clothes and cash lost.
Sometime later in the day, the accused was apprehended with all the things lost. P. W. 1 was corroborated by P. W. 2, her husband . A charge was framed against him under S. 379, Penal Code. and he pleaded guilty. He was additionally charged under S. 75 Penal Code for having been previously convicted by the Additional First Clss Magistrate. Vellore to two year's rigorous imprisonment. To this charge also he pleaded guilty. In view of the circumstance that the accused was found in possession of all the goods lost immediately after the theft and the admission of the guilt, the Magistrate convicted him under S. 379, and sentenced him to six months regorous imprisonment. It is this conviction and sentence that are sought to be quashed by the State Government.
(2) It is urged by the learned Public Prosecutor that in view of the provisions of S. 348, Cr. P. C. read with S. 75 I. P. C. the Magistrate ought to have committed the accused to sessions. The accused had a number of convictions and the Second Class Magistrate was not competent to punish him adequately, so runs the argument of the learned Public Prosecutor. It is further argued that the procedure followed by the Magistrate is opposed to R. 95 of the Criminal Rules of Practice.
(3) To appreciate this argument, it is necessary to refer to the relevant provisions of law. Section 75, I. P. C. is in these words :
'Whoever having been convicted by a Court in India, of an offence punishable under Chap. 12 or Chap. 17 of the Code with impresonment of either description for a term of three years or upwards, shall be guilty of any offence purnishable under either of those Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to transportation for life, or to imprisonment of either description for a term which mahy extend to ten years'.
(4) This section only provides for enhanced punishment to the case of old offenders for certain offences under Chap. 12 or Chap 17.
(5) Section 348, Criminal P. C. recites :
'Whoever, having been convicted of an offence punishable under Chap. 12 or Chap. 17, Penal Code with imprisonment for a term of three years or upwards is again accussed of any offence punishable under either of those Chapters with imprisonment for a term of three years or upwards, shall, if the Magistrate before whom the case is pending is satisfied that there are sufficient grounds for committing the accused, be committed to the Court of Session or High Court, as the case may be, unless the Magistrate is competent to try the case and is of opinion that he can himself pass an adequate sentence if the accused is convicted.'
Rule 95 says :
'Cases in which persons accused of offences punishable under Chap. 12 or Chap. 17, Penal Code with imprisonment for a term of three years or upwards such persons having been previously convicted of offences punishable under either of those chapters with imprisonment for a term of the three years or upwards shall not be forwarded by Subordinate Magistrate to District or Sub-Divisional Magistrate under S. 349, Criminal P. C. but shall be committed to the Court of Session under S. 348, if the Magistrate trying the case is of opinion that he cannot himself pass an adequate sentence.'
In effect this rule affirms the principle of S. 348. It further directs the Magisrate to adopt the procedure laid down in S. 348 insteaed of forwarding the offenders in such cases to higher Magistrates under S. 349, Criminal P. C. This rule was framed obviously to correct the procedure adopted by some of the Magistrates, who when they thought that they could not sufficiently punish the accused forwarded them to the Sub-Divisional or District Magistrtes under S. 349, Criminal P. C.
(6) Now the question for consideration is whether in every case falling under S. 75, Penal Code, a Magistrate is bound to commit the accused to Sessions, in order words, has he no discretion to consider whether it is a fit case for committing the accused to sessions? It looks to me that it is not obligatory on the Magistrate to commit the accused to Sessions in all cases under all circumstances without any regard to the nature and the gravity of the offence. If fact, the section directs him to commit the accused to sessions only if he is satisfied that there are sufficient grounds for doing so.
When once he feels that there are grounds for committing the accused to Sessions, then he is under a duty to do it unless he is competent to try the case and comes to the conclusion that he can himself pass an adequate sentence. It is true that the letter part of S. 348 is mandatory but that would come into play only when the Magistrate feel that the circumstances of the case warrant the committal of the accused to Sessions.
It does not contain any invariable rule that in all cases goerned by S. 75, Penal Code, a committal to the Sessions should follows. In such case, the Magistrate has to apply his mind to the circumstances and decide whether it is a fit case for committing the accused to sessions. The construction sought to be placed by the leared Public Prosecutor in my opinion, is opposed to the plain meaning of the section.
(7) Reliance was placed by the learned Public Prosecutor for the position taken up by him on -- 'Queen Empress v. Khalak', 1 All 393 (A). There a Joint Magistrate tried an accused under Ss. 411 and 75, Penal Code. As the accused was previously convicted under S. 411, Penal Code and was released just six months previously, after 21/2 years imprisonment, he thought he could give double the punishment under S. 35, Criminal P. C.
The learned Judge, in quashing the proceedings, expressed the opinion that the best course for the Magistrate was to have committed the accused for trial under S. 411 read with S. 75, Penal Code. I do not think this case would furnish any anology. In cases where the Magistrate feels that the accused could not be adequately purnished by him, the only course to be adopted by him is the one indicated in S. 348, Criminal P. C.
(8) The judgment of Kind J. in -- 'Emperor v. Basava Apparao', 1935 Mad 1293 (B), is not very helpful in this context. There, all that was laid down is that when a Magistrate feels that he could not pass an adequate sentence afte convicting the accused, the procedure to be adopted by him is to commit him to Sessions under S. 348 and not forward him to a higher Magistrate under S. 349. This is the principle embodied in R. 95 of the Criminal Rules of Practice.
So neither of the cases is an authority for the propostiion stated by the Public Prosecutor. If the theory advocated by the learned Public Prosecutor is to be accepted in every case of previous conviction coming within the purview of S. 75, there should be necessarily an enhanced sentence.
(9) It is now fairly settled that it is not absolutely necessary that in very case, ireespctive of the nuture of the offence, an enhanced punishment should be awarded. It is a well understood principle of administration of criminal justice that the punishment should be commensurate with the gravity of the offence. It should neither be too lenient nor very excessive being dispropotionate to the nature of the crime committed. The circumstances of each case have to he considered by the Magistrate before awarding a particular sentence. This principle is liad down in several cases. Vide -- 'Munuswamy v. Emperor', AIR 1947 Mad 386 (I) (c) and in -- 'Re : K. Sellandi', AIR 1914 Mad 149 (2) (D).
(10) The principle of S. 75 is that if the previous sentence borne by the accused had no effect on him, a more severe sentence should be awarded. But it does not follow as rigid and inflexible rule that in all cases of previous convictions, an enhanced sentence should be awarded. As pointed out by Pandrang Row J., in -- 'Re : Abdul Gani Sahib'. AIR 1937 Mad 231 (E), it is good as a rule of thumb but the circumstances of each case should be taken into account in inflicting punishment.
It is certainly open in my opinion, to a Magistrate to award a sentence less than that given on a previous occasion if the circumstances of the case warrant it. So, in deciding whether a Magistrate should himself try the case or should commit the accused to Sessions, he should bear in mind surrounding circumstances.
(11) In this particular case the justification for the Magistrate trying the case is set out in these words :
'The learned Assistant Public Prosecutor argues that in view of the property involved being only valued about Rs. 75/- and in view of the previous conviction being in 1949 this Court itself can sufficiently and adequately punish him.'
Had it been only one previous conviction there would be nothing to quarrel about the procedure adopted by the Magistrate. But I am told by the learned Public Prosecutor that there are 17 previous convictions. Normally, in the circumstances, I would have been inclined to quash the proceedings and direct the Magistrate to commit him to Sessions. However it does not appear that the several convictions prior to the one referred to by him were brought to the notice of the Magistrate.
There is the further fact that there has been a lapse of more than five years between the previous conviction and the present one and also the fact that the accused had served out the full term of imprisonment in addition to the fact that it was the Assistant Public Prosecutor that invited the Magistrate to adopt that course. I have, therefore, come to the conclusion that it is not necessary to quash the proceedings in this case.
(12) Before leaving this case, I would like to endorse with respect the suggestion made by Horwill J. in -- 'Venkatasubbayya v. Emperor, AIR 1943 Mad 418 (F).
'Clearly the number of previous convictions is a circumstance to be taken into consideration in determining the sentence. Moreover, the Criminal Rules of Practice require that Magistrates and Judges should append to their judgment a list of previous convictions; but the learned Sessions Judge had made no attempt to do this. He has referred only to one previous conviction, whereas it appears clear from the fact that the previous conviction was under S. 75, Penal Code that there were other previous convictions.
In all probability these previous convictions were referred to in the calendar that was filed in the Sessions Court. The learned Sessions Judge should have included those previous convictions in his charge under S. 75, Penal Code, and got the accused to plead to them, and should then have set them out in a tabular form at the end of his judgment.'
These observations apply with force to a case like this. It is essential that Magistrates and Judges should set out in a tabular form all the previous convictions at the end of the judgment.
(13) In these circumstances, the Criminal Revision case is dismissed. I must express thanks to Mr. T. V. Sarma, who has assisted me as Amicus Curiae on behalf of the accused.
(14) Revision dismissed.