S.B. Sen, J.
1. In this criminal revision the only question for consideration is of sentence. The applicant has been convicted under Section 13 of the M. P Gambling Act and sentenced to suffer R.I. for one month.
2. The reason given for sentence of imprisonment is that the accused has got to his credit five previous convictions. The Sessions Judge has also confirmed the same on the ground that the Magistrate did not exceed the maximum limit of sentence he is empowered to give and therefore rejected the appeal.
3. The prosecution case as given in the judgment of the Sessions Judge is that the Station Officer Tehsildarsingh (P.W. 4) of Pardeshipura Indore received information that the appellant, who had a Gumti in front of the Kalvanmal Mills, indulges in gambling in American futures. He, therefore, sent Sub-Inspector Mansing to look into the matter. Mansingh went with a one rupee note, called a punter by name Ramvatar (P.W. 1) and in the presence of witnesses, marked the one rupee note, gave it to the punter and asked him to bet 8 annas on the figure 7 and 8 annas on the figure 8 at the Gumti of the appellant. The punter staked the same as instructed. The applicant noted bet in the note book Art. A and received one rupee note from the punter. The punter gave a signal and the sub-inspector and witnesses went to the applicant. They searched him--found the marked note, took him to the police station and launched the prosecution against him.
4. The conviction under Section 13 of the M.P Gambling Act on the basis of the above allegations has not been challenged. Nor it has been challenged that the accused has got some previous convictions to his credit.
5. The sole question is whether the Court was justified in taking into consideration the previous convictions. It is not disputed that the Magistrate has power to award the sentence imposed
6. Under Section 75 of the I. P. Code there is a provision for enhanced punishment for previous convictions. But Section 75 I. P. C. is restricted to offences under Chapter XII and Chapter XVII of the Code It does not apply to offences under other Acts The M.P Gambling Act provides punishment for the offences mentioned therein There is no provision for enhanced punishment on a previous conviction except Section 15 of the Act. This section does not apply to all offences. It reads as follows:
'Whoever having been convicted of an offence punishable under Section 4 of this Act, shall again be guilty of any offence punishable under either of such sections, shall be subject for even such subsequent offence to double the amount of punishment to which he would have been liable for the first commission of an offence of the same description.'
7. In order to apply this section, conviction must be under Section 4 of the Act. Here the conviction is under Section 13. Therefore there cannot be an application of Section 15.
8. No doubt the Court did not exceed its limit in awarding punishment, but the award of this sentence of imprisonment was not that he had jurisdiction to do so; but because there were five previous convictions. in fact from the judgment of the Magistrate it is clear that before awarding sentence, he closed the judgment to find out the previous convictions. This was illegal.
9. Section 13 does not speak of any enhanced punishment for previous convictions either under the said Section or under any other section. For awarding sentence the consideration was irrelevant. Punishment is a creation of statute and so also its enhancement. Unless therefore the statute provides enhanced punishment no court can award it. Why I say it is enhanced punishment, because the Court gave the same on a consideration not allowed under law. It does not appear from record that there was any other reason for inflicting the sentence of imprisonment.
10. When a maximum sentence is provided for, the court is undoubtedly justified in awarding it, but that will depend on the facts of each case The facts of the case only in which the conviction is being made must be the basis for punishment and not any previous conviction. The Magistrate did not award the sentence of imprisonment because of any special feature of the case or of it being of any unusual type. If that was the ground certainly there would have been no reason for interference. But the sole ground is the previous conviction. No other reason has been given for the Jail sentence. Sentence is therefore not according to law.
11. I, therefore, allow this revision petition, maintain the conviction of the applicant but set aside the sentence of imprisonment and instead sentence him to pay a fine of Rs. 50/- or in default to undergo R.I. for one month