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Haramohan Deb Nath Vs. Jaha Baksha Patwari - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1943Cal25
AppellantHaramohan Deb Nath
RespondentJaha Baksha Patwari
Excerpt:
- orderhenderson, j.1. this reference raises a question of the interpretation of section 75, penal code. i accordingly gave notice to the crown to appear and i am glad to say that mr. ahmed appearing on behalf of the crown is unable to support the reference. the prosecution was in connexion with the theft of a cow and a calf belonging to the complainant. one jaha buxa patwari was convicted under section 414, penal code, and in connexion with that matter he was sentenced to pay a fine of rs. 50. it appears that this man had previously been convicted of theft and directed to execute a bond under section 562, criminal p.c. the learned sessions judge now refers the matter to this court because in his opinion it was incumbent upon the magistrate to pass a sentence of imprisonment. there has.....
Judgment:
ORDER

Henderson, J.

1. This reference raises a question of the interpretation of Section 75, Penal Code. I accordingly gave notice to the Crown to appear and I am glad to say that Mr. Ahmed appearing on behalf of the Crown is unable to support the reference. The prosecution was in connexion with the theft of a cow and a calf belonging to the complainant. One Jaha Buxa Patwari was convicted under Section 414, Penal Code, and in connexion with that matter he was sentenced to pay a fine of Rs. 50. It appears that this man had previously been convicted of theft and directed to execute a bond under Section 562, Criminal P.C. The learned Sessions Judge now refers the matter to this Court because in his opinion it was incumbent upon the Magistrate to pass a sentence of imprisonment. There has frequently been a great deal of misunderstanding as to the meaning of Section 75, Penal Code. It is really quite simple. It provides that persons previously convicted of certain offences will be liable to higher punishment than what they otherwise would be. The present conviction is one under Section 414, Penal Code. The maximum sentence is three years rigorous imprisonment. Under Section 75, however, this accused person became liable to a sentence of transportation for life. It is abundantly clear that if Section 75 were to be repealed tomorrow, sentences which could be imposed by Magistrates would not be affected at all. Although Magistrates frequently frame charges under Section 75, Penal Code, it is really only necessary to do so in the Courts of Sessions where a higher sentence than the ordinary maximum is to be imposed.

2. Now in making this reference the learned Judge has read into the section something which is not there. The section undoubtedly provides for a special maximum sentence. The learned Judge has assumed that it also provides for a minimum. There is nothing in the terms of the section to justify any such inference. An old professional criminal with previous convictions sometime has a dispute with his neighbours over the possession of land and cuts paddy on the disputed land. He may certainly be guilty of a technical theft, but it would be ridiculous to suggest that in assessing the punishment the previous convictions should be taken into consideration. The reference is rejected.


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