1. In this case the accused has been convicted on a unanimous verdict of the jury of offences under Section 380/157, Penal Code, the cage being in brief : he stole some betelnuts from a room at night the entry having been obtained in circumstances that constituted housebreaking by night. The learned Additional Sessions Judge having obtained the jury's verdict on this point fell into grave error when he proceeded to consider a further charge against the accused under Section 23(b), Criminal Tribes Act. It appears that the accused was made a member of a Criminal Tribe on 9th March 1933. A few weeks later he was convicted on 29th April 1983 of dacoity and a few months later on 26th August 1933 again of dacoity and on the same date he was convicted by the same Court under Section 402, Penal Code, and sentenced to one year's imprisonment. The learned Judge's error was that he failed entirely to follow the provisions of the Code in the matter of the determination whether these previous convictions had been proved or not. The accused admitted he was a member of a Criminal Tribe but denied his previous convictions. The proper course was for the learned Judge after the evidence as to identity and the fact of the previous convictions had been given, to take the verdict of the jury on this point in accordance with the provisions of Section 310, Criminal P. C. The learned Judge himself found that the previous convictions had been proved and accordingly passed a sentence as required by Section 23(b), Criminal Tribes Act, of transportation for life.
2. His proceedings after the stage when he took the verdict of the jury under Sections 380 and 457, Penal Code, are entirely without jurisdiction and the conviction as it stands under those sections read with Section 23(b), Criminal Tribes Act, cannot be upheld, but the conviction so far as it is one under Section 380/457, Penal Code, is good. A question has been raised before us as to whether in the event of it being held necessary that the error of the learned Additional Judge should be rectified, and a proper conviction under Section 23 (b), Criminal Tribes Act, be obtained, a retrial could be ordered merely in regard to this separate matter. In our opinion this would be quite impossible and if, there is to be a retrial it would have to be a retrial of the whole case. It would not be possible to maintain the conviction under Section 380/457, Penal Code, by one jury and send the case back for retrial by another jury to determine whether the punishment should be governed by the provisions of Section 23(b), Criminal Tribes Act.
3. However, we do not consider, it is necessary in this case to order any retrial. Section 23, Criminal Tribes Act, itself provides that the Court might give special reasons for not passing the full sentence required. In our opinion in this case there were ample reasons. It is quite obvious that the accused was made a member of a Criminal Tribe till after he had committed the crimes for which he was convicted in I933.f The dates cited above clearly show this. Evidently there had been a series of dacoities at about that time, and at that time the gang in question had been registered as a Criminal Tribe and there had been trial in respect of some of the dacoities previously committed by it. Such being the circumstances we think that there were adequate reasons why thirteen years later when the accused was really being convicted for the first time for a crime committed by him after he had been registered as a member of a Criminal Tribe, the full force of the provisions of Section 23(b), Criminal Tribes Act, should not be allowed to have effect; in other words in our opinion the present offence committed by the accused can be adequately punished under the provisions of Sections 457 and 380, Penal Code, having regard to the fact, that he is an admitted member of a Criminal Tribe. We, therefore, reduce the sentence imposed on the accused from transportation for life to-one of five years' rigorous imprisonment under Section 457, Penal Code, there being no separate sentence under Section 380 of the said Code.