EMPEROR Vs. CHHOTAN HASMAT ALI

JUDGEMENT

(1.) THIS is a revision application by the Government of Bombay which raises a short point of law. The accused, who is a man of twenty-four years of age, was convicted by the First Class Magistrate of Surat under Section 457 of the Indian Penal Code, and as he had a previous conviction against him under Section 12 of the Bombay Prevention of Gambling Act, 1887, the learned Magistrate was of opinion that it was not open to him to give the accused the benefit of the provisions of Section 562 of the Criminal Procedure Code relating to first offenders. On appeal the learned Sessions Judge of Surat was of opinion that the provisions of Section 562 (1) of the Criminal Procedure Code could be applied to the case, on the ground that the previous conviction being under a local law, did not prevent the operation of the section. The learned Judge considered that there was some analogy between the present case, and the case of King-Emperor v. Khan Muhammad (1904) 1 Cr. L. J. 1061, which dealt with the construction of Section 75 of the Indian Penal Code. But there is clearly no assistance to be derived from a decision under Section 75 of the Indian Penal Code, because that section deals only with previous convictions under specified chapters of the Code, and a conviction under some other law would not attract the operation of the section. Section 562 (1) is expressed in general language. It applies to a person convicted of an offence punishable with imprisonment of not more than a certain period, and, in my opinion, that sub-section, unlike Sub-section (1a), which only applies in the case of convictions under particular sections of the Indian Penal Code, covers the case of a conviction under any law, and if that is the correct construction of the operative part of the section, it is, in my opinion, impossible to limit the ' previous conviction' which prevents the operation of the section to a conviction under the Indian Penal Code. The actual words of the sub-section are, " and no previous conviction is proved against the offender". The offence under Section 12 of the Bombay Prevention of Gambling Act is not a very serious offence, but still it is an offence, and the word ' conviction ' is actually used in the section. In my opinion, therefore, a conviction under the Bombay Prevention of Gambling Act is a ' previous conviction', and that being so, the learned Magistrate was right in thinking that he could not apply the provisions of Section 562 (1 ). We must, therefore, allow the application, and set aside the order of the learned Sessions Judge. Having regard to the fact that the accused, who was sentenced to two months' rigorous imprisonment, and a fine, was released on bail after eighteen days, as long ago as the middle of July, I think it is not desirable to direct his re-arrest, and we, therefore, reduce the sentence passed by the Magistrate to the period already undergone, and cancel the sentence of fine. .