EMPEROR Vs. MAHOMED HANIF

JUDGEMENT

(1.) THIS is an appeal by the accused against their conviction by the Presidency Magistrate, 7th Court, Dadar, under Section 454 of the Indian Penal Code, that is to say, house-breaking by day, and on the admission of the appeal this Court gave notice to enhance the sentences of nine months' rigorous imprisonment upon each of them.

(2.) THE accused were caught red-handed. THEy were seen by Miss Daruwalla bending over the lock of the door of a flat on the ground floor of a building. When she raised an alarm, accused No.1 threw away a jemmy which was in his hand, and both of them ran away, but they were caught. So that there can be no doubt whatever that they were guilty of the offence of which they were convicted.

(3.) NOW, in the present case accused No.1 is a man of about twenty-nine years of age with a very bad record. He started in Rangoon, where in March, 1936, he was convicted under Section 454 of the Indian Penal Code, which is the same section under which he was convicted on the present occasion, and he was given twenty lashes. In June, 1936, he seems to have been bound over under some Burma Act, and in October, 1936, he was given one year's rigorous imprisonment for an offence under Section 457 of the Indian Penal Code. On February 22, 1937, he was expelled from Burma under a local Act. He then seems to have come to Bombay, and on October 1, 1937, he was given one year's rigorous imprisonment for an offence under Section 3 80 of the Indian Penal Code, that is theft, and on April 14, 1939, he was given another year's rigorous imprisonment for an offence under Sections 411 and 414, that is receiving stolen property, and then on April 9, 1940, he was given nine months' rigorous imprisonment under Section 128 of the Bombay City Police Act, and on December 10, 1940, a similar sentence was passed upon him. He is, therefore, a man who started his criminal career in another place, and then, when turned out of his native country, comes to Bombay, and shows a deliberate intention to live by crime ; and the learned Magistrate on this occasion passed a less sentence than those imposed on the two previous convictions in Bombay. It was the view of the former Commissioner of Police in Bombay that the lenient sentences passed by Presidency Magistrates encouraged criminal characters from other parts of India to come and settle in Bombay, and this case suggests that there may be some force in that view. In our opinion, the learned Magistrate was plainly wrong in imposing so lenient a sentence on accused No.1, and we enhance the sentence on him to one of two years' rigorous imprisonment, that being the maximum sentence which the Magistrate could have imposed.