Basi Reddy, J.
1. A passing observation By a Division Bench, of this Court in Kamya v. State : AIR1960AP490 regarding the scope of Section 75 of the Indian Penal Code, has occasioned this reference by the Sessions Judge of Anantapur.
2. it appears from the letter of reference that in C.C. No. 62 of 1961 on the file of the judicial 1st Class Magistrate, Dharmavaram, one Sugali Nage Naik was charge-sheeted by the police under Sections 379 and 75 IPC. The allegation against Him was that on the night of 6.6.1961, he had committed theft of a goat from the house of one Venkataramudu and that consequently he was liable to be punished under Section 379 IPC, and further, that by reason of a previous conviction and a sentence of nine months' rigorous imprisonment suffered by the accused in C.C. No. 37 of 1958 under Sections 457 and 380 IPC, he was liable to enhanced punishment under the provisions o Section 75 IPC. The learned Magistrate, Who tried the case, accepted the evidence for the prosecution and convicted the accused of an, offence under Section 879 IPC, and sentenced him to suffer rigorous imprisonment for four months. The accused preferred an appeal against his conviction and sentence (Criminal Appeal No. 114 of 1961) to the Court of Session, Anatapur, but the conviction and sentence were continued and the appeal was dismissed.
3. Sometime thereafter, the sessions Judge of Anantapur, while perusing the calender, found that the Magistrate had not framed a charge under Section 75 IPC. although the police hart tiled a charge-sheet under that Section also. Ho the learned Sessions Judge called for the remarks of the Magistrate. The latter gave ms explanation for the omission to frame a charge under Section 75 IPC, by saying that he had relied on an observation contained in a decision of the Andhra Pradesh High Court in : AIR1960AP490 . The observation referred to by the Magistrate occurs at P. 853 of the report (Andh LT.) : (at P. 491 of AIR) and runs thus:
In this case, the prosecution quite rightly, Old not ask for enhanced sentence, because Section 70 IPC. Would be inapplicable. The sentence awarded to the accused under the previous conviction was only two months, while the minimum that is required for enhancement of punishment is 3 years under Section 75 IPC, so that the previous conviction of the accused could not be proved against him or any evidence allowed to be adduced thereof....
The learned Magistrate explained that inasmuch as the previous conviction of the accused in the case before him had resulted only in a sentence of nine months' rigorous Imprisonment, and since the High court had indicated that the minimum sentence required for pressing Section 75 IPC, into service was three years, he had refrained from framing a charge under that Section.
4. The learned Sessions Judge felt that the above quoted observation in the judgment of the High Court was not in conformity with the terms of Section 75 IPC, which require that the previous conviction need only be in respect of an offence punishable with Imprisonment of either description for a term of three years or upwards, and the Magistrate was in, error in not framing a charge under Section 75 IPC The Sessions Judge has, therefore, reported the case for orders of this Court under Section 438 Cr.P.C.
5. We may soy at once that the aforesaid observation of a Division Bench of this Court does lend itself to the interpretation put upon it by the Magistrate. Hut evidently that observation, must have been the result of a slip in reading the Section and the learned Judges could not have meant to lay down anything contrary to the express terms of the Section.
6. Now, Section 75 IPC, so far as it is material for the present purpose, reads thus:
Whoever, having been convicted,-
(a) by a Court In India, of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards,
X X X X X Xshall be guilty of any offence punishable under either of those Chapters with like Imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life or to Imprisonment of either description for a term which may extend to ton years.
7. in this connection, we may also notice Section 221(7) of the Code of Criminal Procedure which runs thus:
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.
So, what Section 75 IPC, contemplates is that where a person who has been previously convicted I of an offence punishable under Chapter XII (which deals with offences relating to coin and Government stamps) or Chapter XVII (which relates to offences against property) with Imprisonment of either description for a term of three years or upwards, is once again found guilty of a similar offence, he shall be liable to enhanced punishment which may extend to imprisonment for life or to imprisonment of either description for a term which may extend to ten years. The Section is concerned with a previous conviction for a similar offence out it does not postulate that in respect of the previous conviction, the punishment imposed should Have been one of not less than three years. All that it posits is that the previous conviction should have been m respect of an offence punishable with a term of imprisonment for a term of three years or upwards, but it does not lay down that the offender should have been actually punished with such a term of imprisonment. It would seem, therefore, that the observation of the Division Bench of this (Court which suggests that Section 75, I.P.C. would come into play only If the sentence awarded to the accused for the previous conviction was not less than three years, is not warranted by the language of the section. Moreover, that observation was really unnecessary in deciding the point which, actually arose in that case. What happened there was this: The accused in that case had been convicted by the Sessions Court under Sections 302 and 379, I.P.C. and sentenced to imprisonment for life under the former count and to three years' rigorous imprisonment under the latter count. The accused appealed to the High Court. The appeal was heard by a Division Bench composed of Jaganmohan Reddy and Ranganadham Chetty, JJ. It would appear that at the trial, the prosecution had led evidence of a previous conviction of the accused for an offence of theft for which he had been awarded two months' rigorous imprisonment, and a copy of the judgment in that case was also filed in the course of the trial, as Ex. P. 8. In addition to that, one of the witnesses had deposed that the accused had committed robbery on a previous occasion by cutting off the ear-rings of a child and that he had been convicted in that case, in the examination of the accused under Section 342, Cr.P.C., the trial Judge had put to the accused his previous conviction. Holding that that procedure was highly irregular and prejudicial to the accused, Jaganmohan Reddy, J. who delivered the judgment of the Bench, observed as follows:
It is an elementary principle of criminal jurisprudence that the previous convictions of an accussed are not relevant and cannot be proved unless the good character of the accused is relevant under Section 54 of the Evidence Act or unless the prosecution, under Section 75, I.P.C. prays for an enhancement of the sentence. When it is required mat the accused should be dealt with severely because of a previous conviction, there must be a specific charge under Section 75, I.P.C. Section 310 Cr.P.C. is meticulous enough to enjoin on the Courts, whether It is a trial by a Jury or a Judge that 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, 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 he has been convicted of the subsequent offence or in the case of a trial by a jury, the jury have delivered their verdict on the charge of the subsequent offence, or in the case of a trial by the Judge himself, the Court may, in its discretion, proceed or refrain from proceeding with the trial of the accused on the charge of the previous conviction. In this case, the prosecution, quite rightly, did not ask for enhanced sentence, because Section 75, I.P.C., would tie Inapplicable. The sentence awarded to the accused under the previous conviction was only two months, while the minimum that is required for enhancement of punishment is three years under Section 75, I.P.C. so that the previous conviction of the accused could not De proved against him or any evidence allowed to be adduced thereof, even where he was charged under Section 75, unless the Court came to the conclusion that the offence with which he is charged has been proved. In this case, Section 75, I.P.C. and Section 310, Cr.P.C. have no application and the far of Section 54 of the Evidence Act comes into play. The evidence of a previous conviction led at the trial by the prosecution is calculated and is likely to prejudice the accused. It is equally clear that anything which prejudices the case of the accused, does vitiate the trial.
8. It will be observed that the learned Judge was concerned with the prejudice caused to the accused in that case by reason of evidence of a previous conviction Having been adduced, without following the procedure prescribed by law, and was pointing out that evidence of a previous conviction is evidence of bad character which, by virtue of Section 54 of the Indian Evidence Act, is irrelevant in criminal proceedings, unless evidence has been given that the accused person is of a good character, in which case alone it would become relevant. No doubt, incidentally, the learned Judge referred to Section 75, I.P.C. and said that the prosecution had not sought to invoke the provisions of Section 75, I.P.C., apparently because the sentence in respect of the previous conviction was only two months' imprisonment, whereas the 'minimum' that is required for imposing the enhanced punishment, is three years under Section 75, I.P.C.
9. The learned Judge's reading of Section 75, I.P.C. was obviously due to a slip. However that be, now that we have clarified the position, we hope Magistrates in this State will not allow themselves to be misled by the above quoted observation contained in that judgment. We are saying this because It Is represented to us by the learned Public Prosecutor that several Magistrates have been refusing to frame charges under Section 75, I.P.C., relying on the said observation.
10. However, in the circumstances of this case, we do not consider that the interests of justice require that at this distance of time, after the accused has served out the sentence and come out of jail, it is necessary to send this case back to the Magistrate with a direction to frame a charge under Section 73, I.P.C. and impose an enhanced punishment. The reference is answered accordingly.