K. Sadasivan, J.
1. An old offender was charged with having committed theft of Rs. 36/- and an L.I.C. bill from the shirt pocket of one Kesavan at about 6 p.m. on 26-8-1968 from the municipal bus stand, Kottayam where Kesavan had gone to board a bus to Eruttupetta. The accused was caught red-handed and was taken to the Kottayam West Police Station. Being an old offender the accused was committed to the Sessions. In the Sessions Court, P.W. 1 filed a petition praying for the leave of the Court to compound the offence stating that the matter was settled between him and the accused and he did not desire to proceed with the case. As the value of the property stolen was only Rs. 36/- the owner of the property can compound the offence with the permission of the Court. The Court accordingly, accorded sanction and the compromise was recorded and the accused acquitted.
2. The point taken in the calendar revision is that even though an offence under Section 379, I.P.C. is compoundable, it cannot be so compounded when Section 379 is read with Section 75. I do not think that this position is correct, because conviction under Section 379 read with Section 75 is not a conviction for two 'distinct offences'. The conviction is all the same, only under Section 379. Section 75 is invoked for enhancement of the sentence and that can come only at the time the sentence is to be imposed. The fact that the accused is an old offender is not to be taken note of by the Court at the trial. Only at the conclusion of the trial after entering the conviction, that question can be taken up for imposing the sentence. So Section 75 cannot give a different colour to the offence under Section 379, I.P.C. This is the view taken in Queen-Empress v. Khalak, (1889) ILR 11 All 393 and In re, Muthurakka Thevan, 30 Ind Cas 435 = (AIR 1916 Mad 829). In the case first cited .it was held:--
'A person convicted under Sections 411-75 of the Penal Code is not convicted of ''distinct offences' within the meaning of Section 35 of the Criminal Procedure Code.' And in the case second cited it was held:
'A person convicted under Sections 392 and 75 of the Penal Code is not convicted of distinct offences within the meaning of Section 35 of the Code of Criminal Procedure.'
So, for purposes of compounding, the only offence available is the one under Section 379, Indian Penal Code. Moreover, in the present case there is an additional circumstance that the last conviction, nextpreceding was in 1961. The present charge comes only in 1968. In view of such a long interval, Section 75 cannot be invoked-at all. For these reasons, the order passed by the learned Assistant Sessions Judge is correct. The rule issued by this Court is discharged.