U.N. Bhachawat, J.
1. The appellant was tried by the Sessions Judge, Bastar at Jagdalpur for an offence under Section 394, Indian Penal Code, in Sessions Trial No. 30 of 1973, who vide his judgment dated the 30th April, 1973, has convicted the appellant for the charges under Section 394 read with Section 75 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment of seven years.
2. In the light of the view that I am taking of the matter on a preliminary question relating to the validity of the trial, it is not necessary to mention the facts of the case, which would have been necessary for deciding the appeal on merits.
3. The appellant was committed to the Court of Session by the Magistrate First Class, Ranker, on a charge under Section 394, Indian Penal Code, with additional charge under Section 75 of the Indian Penal Code, stating that the appellant was previously convicted for an offence punishable under Sections 457 and 380 of the Indian Penal Code. On being committed, the trial Court read over and explained the aforesaid charge to the appellant on 27-4-1973, to which the appellant pleaded not guilty and claimed to be tried. During the course of the trial, when the Investigating Officer, Laxmanrao (P.W. 6) was examined he gave evidence on the basis of the register of the convicted persons that the appellant was convicted previously on four occasions for the offences under Sections 457 and 380, Indian Penal Code and sentenced to three months and six months imprisonments (three months for each of the two cases and six months for each of the other two cases). After the close of the prosecution evidence, when the statement of the appellant was recorded under Section 342 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the Code') which was then in force and which shall govern the present case, he was questioned about his previous convictions (see question No. 3), to which he replied in affirmative.
4. The point for decision is whether the procedure followed by the trial Court, inasmuch as it not only framed the charge under Section 75, Indian Penal Code, but read it over and explained to the appellant, permitted the prosecution to lead the evidence of previous convictions and also put a question to the appellant about his previous convictions in his examination under Section 342 of the Code before having found the appellant guilty for the subsequent offence ' under Section 394, Indian Penal Code, for which the appellant was being tried in the instant case, was valid.
5. Section 310 of the Code, which is set out below, lays down the procedure in case of previous conviction:
310. In the case of a trial by a jury or by the Judge himself when 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, the procedure prescribed by the foregoing provisions of this Chapter shall be modified as follows, namely:
(a) 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.
(i) he has been convicted of the subsequent offence, or
(ii) in the case of a trial by a jury, the jury have delivered their verdict on the charge of the subsequent offence.
(b) In the case of a trial held 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.
The language employed in Sub-clause (a) of Section 310 makes it imperative that unless and until the accused is convicted of the subsequent offence by the Judge holding the trial for the subsequent offence, the charge for previous conviction shall not be read over to the accused and he shall not be asked to plead thereto, nor the prosecution would be allowed to refer to the same or lead any evidence in support of that. The language employed in the section is plain and does not admit of any ambiguity. The object behind enacting this section appears to be that a prisoner on his trial ought not to be prejudiced by a statement of previous conviction suffered by him.
6. Section 535 of the Code provides that no finding or sentence in the case should be deemed invalid in appeal or revision, unless the Court considers that failure of justice has been occasioned by the absence of a charge. Then coming of Section 537 of the Code which covers a wider sphere of irregularities and illegalities and provides that no finding shall be vitiated unless the error, omission, irregularity or misdirection of a charge to the jury has in fact occasioned a failure of justice. But this section does not cover in its sphere a trial which is conducted in a manner different from that prescribed by the Code, Where the procedure adopted by the Court is one which the Code positively prohibited and it was possible that it might have worked actual injustice to the accused, is not an irregularity or illegality contemplated under Section 537. (See : Umer Saheb Burai Saheb Inamdar v. State. AIR 1960 Bom 205 : 1960 Cri LJ 573.
7. In the instant case, a different manner of trial has been substituted for the one prescribed by the Code as conducive to fair trial by reading and explaining the charge of previous convictions along with the charge of the subsequent offence, permitting the prosecution to lead evidence therefor and putting the question under Section 342 of the Code before the finding of conviction for the subsequent offence.
8. In my opinion, therefore, the non-compliance with the provisions of the f'orequoted Section 310 of the Code would vitiate the trial. The same is the view that appears to have been taken in the decisions in Teka Ahir v. Emperor AIR 1920 Pat 351 : 22 Cri LJ 219 and Raju v. Emperor AIR 1927 Lah 774 : 28 Cri LJ 667 on the construction of Section 310 of the Code. A Division Bench decision of the Andhra Pradesh High Court in Re : Kamya AIR 1960 Andh Pra 490 : (1960 Cri LJ 1302) also supports this view. The relevant observation in the said decision is set out below:
It is also necessary to remark that the examination of the accused under Section 342 is most inadequate and unsatisfactory. The Sessions Judge has not brought out the salient facts disclosed by the evidence upon which he relied in convicting the accused. It must be borne in mind that the accused, placed as he is must be given full liberty to explain all the incriminating circumstances which appear against him and which the Judge is likely to use in support of a conviction. If he fails to do so that again would, in our view, cause prejudice vitiating the trial.
With reference to the forequoted decision of the Andhra Pradesh High Court, I would like to say a few words. In the said decision, their Lordships of the Andhra Pradesh High Court appear to have taken a view that Section 75 of the Indian Penal Code would be applicable only when the sentence awarded to the accused under the previous conviction is three years or upwards. With due respect, I am unable to agree with this construction of Section 75, On a plain reading of Section 75. the governing expression wherein, for the purpose of the decision on the point at hand, is 'whoever having been convicted ... of an offence punishable ... with imprisonment of either description for a term of three years or upwards'. This expression, in my opinion, makes it abundantly clear that for the applicability of Section 75 it is not necessary that the actual sentence awarded for the previous conviction should be of three years or upwards; but what is required is that the previous conviction should be for any one of the offence covered under Chapters XII or XVII of the Indian Penal Code and for which the sentence of imprisonment is three years or upwards. The key word is 'punishable'. In other words, the quantum of sentence awarded is not a sine qua non, but the permissible upper limit of the sentence of imprisonment for that offence should be three years or upwards.
9. In the instant case, it is clear that the Sessions Judge has acted in complete violation of Section 310 of the Code. The Sessions Judge was free to proceed with the trial for the subsequent offence without the charge for previous conviction, but once having chosen to proceed under that, he should have followed the mandatory procedure provided in Section 310 of the Code. It is lamentable that the Sessions Judge did not know this elementary law about the procedure and his failure to meticulously observe the procedure provided in Section 310, has occasioned the vitiating of the trial resulting in waste of public time and money.
10. In the result, the judgment of the trial Court is set aside. The conviction and sentence awarded to the appellant are also set aside and the case is sent for retrial to the Sessions Judge, Bastar at Jagdalpur. Before parting with the judgment, I would like to say that this was a jail appeal and the penal lawyer appearing on behalf of the State has been very fair in frankly and in my view rightly pointing out the aforesaid illegality in the procedure and conceding that the case has to be sent of re-trial.