IN RE: NATTAYYAN Vs. STATE

JUDGEMENT

(1.) THE point involved in this reference and revision is whether it is necessary to frame a charge under Section 75, Indian Penal Code, by the Magistrate in Warrant Cases for proving previous conviction for the purpose of awarding enhanced sentence to the accused convicted of offences punishable under Chapter XII or Chapter XVII of the Code with imprisonment of either description of a term of three years or upwards.

(2.) THE brief facts leading to the reference by the learned District Magistrate, North Arcot are these : During the scrutiny of calendar and judgments of the Additional First Glass Magistrate, Vellore, the learned District Magistrate noticed that the accused who was the same in C.C. Nos. 117 to 119 of 1968 on the file of the said Court was sentenced to undergo Rigorous Imprisonment for six months under each of the two counts viz., 457 (latter part) and 380, Indian Penal Code, the sentences to run concurrently, though he was previously convicted by the same Court for a similar offences in C.C. No. 305 of 1965 on 11th December, 1965 and sentenced to undergo Rigorous Imprisonment for nine months. The learned District Magistrate felt that the Additional First Class Magistrate should have framed a charge under Section 75, Indian Penal Code, in respect of his previous conviction in C.G. No. 305 of 1965 and awarded a more severe sentence than what was imposed by him. He therefore, called for remarks from the Additional First Class Magistrate for not having framed charge under Section 75, Indian Penal Code. The Additional First Class Magistrate submitted a report stating that it was not necessary to frame charge under Section 75, Indian Penal Code, unless he felt that the sentence to be imposed by him would not be adequate as provided for the offence and it was only necessary to do so in the Court of Sessions where a higher sentence than the ordinary maximum sentence has to be imposed. The Additional First Class Magistrate in his report relied upon a decision of a Division Bench of the Kerala High Court in State of Kerala v. Krishnan Kutti, (1966) M.L.J. 296. The learned Additional First Class Magistrate further submitted that he had not framed supplemental charge under Section 75, Indian Penal Code, relying on the said decision. The learned District Magistrate in. his reference pointed out that under Rule 65 of the Criminal Rules of Practice, the charge under Section 75, Indian Penal Code, should be framed in all cases where the punishment of an accused person is affected. He also stated in his reference that under Rules 308 and 309 of the Criminal Rules of Practice, the previous convictions and sentences shall be stated at the end of the judgment in all cases where the rules require a judgment to be submitted and in other cases, the particulars of previous convictions and sentences shall be invariably entered in the column of remarks and that in all sessions calendars submitted to the High Court particulars of previous convictions and sentences should be given except in cases of acquittal and a note should be made as to whether any or all of those previous convictions have been admitted by or proved against the accused. These Rules have been referred to by the learned District Magistrate obviously for the reason that irrespective of the nature of the punishment awarded to the accused person, the previous conviction, if any, of the accused should be noted. The learned District Magistrate also -referred to the practice in vogue in the Courts of Magistrates that if the Magistrate finds an accused person guilty of an offence mentioned under Section 75, Indian Penal Code, and convicts him, if there is a previous conviction against the said accused, he would frame a charge under Section 75, Indian Penal Code, invariably for awarding a more deterrent sentence than ordinarily given. The learned District Magistrate suggested that in the case of old offenders dealt with by the Magistrates that the existing practice prevailing in many of the Courts should be followed and that a supplemental charge under Section 75, Indian Penal Code, has to be framed where the Magistrate on conviction considers that the accused would be liable for enhanced punishment than that which was awarded in the previous case. He was therefore, of the opinion that the procedure followed by the Additional First Class Magistrate in the three cases without framing charges under Section 75, Indian Penal Code, and awarding sentence of six months less than the sentence imposed on the accused in the previous case, namely, nine months, was wrong. He requested in his reference to quash the conviction and sentence imposed on the accused and remand the case for fresh disposal according to law.

(3.) SECTION 221(7), Criminal Procedure Code, in respect of framing of charges lays down as follows: