SUGALI NAGE NAIK Vs. STATE

JUDGEMENT

(1.) A passing observation by a Division Bench of this Court in Kamya v. The State, 1959 A.L.T. 851: A.I.R. 1960 A.P. 490. regarding the scope of section 75 of the Indian Penal Code, has occasioned this reference by the Sessions Judge of Anantapur.

(2.) It appears from the letter of reference that in C.C. No. 62 of 1961 on the file of the Judicial First Class Magistrate, Dharmavaram, one Sugali Nage Naik was charge-sheeted by the Police under sections 379 and 75, Indian Penal Code. The allegation against him was that on the night of 6th June, 1961, he had committed theft of a goat from the house of one Venkataramudu and that consequently he was liable to be punished under section 379, Indian Penal Code, and further, that by reason of a previous conviction and a sentence of nine months' imprisonment suffered by the accused in C.C. No. 37 of 1958 under sections 457 and 380, Indian Penal Code, he was liable to enhance punishment under the provisions of section 75, Indian Penal Code. The learned Magistrate who tried the case, accepted the evidence for the prosecution and convicted the accused of an offence under section 379, Indian Penal Code, and sentenced him to suffer rigorous imprisonment for four months. The accused preferred an appeal against his conviction and sentence (Criminal Appeal No. 114 of 1961) to the Court of Session, Anantapur, but the conviction and sentence were confirmed and the appeal was dismissed. Sometime thereafter, the Sessions Judge of Anantapur, while perusing the calendar, found that the Magistrate had not framed a charge under section 75, Indian Penal Code, although the police had filed a charge-sheet under that section also. So the learned Sessions Judge called for the remarks of the Magistrate. The latter gave his explanation for the omission to frame a charge under section 75, Indian Penal Code, by saying that he had relied on an observation contained in a decision of the Andhra Pradesh High Court in Kamya v. The State, 1959 A.L.T. 851 : A.I.R. 1960 A.P. 490. The observation referred to by the Magistrate occurs at page 853 of the report and runs thus:

(3.) The learned Magistrate explained that inasmuch as the previous conviction of the accused in the case before him had resulted only in a sentence of nine months' rigorous imprisonment, and since the High Court had indicated that the minimum sentence required for pressing section 75, Indian Penal Code, into service was three years he had refrained from framing a charge under that section. The learned Sessions Judge felt that the above-quoted observation in the judgment of the High Court was not in conformity with the terms of section 75, Indian Penal Code, which require that the previous conviction need only be in respect of an offence punishable with imprisonment of either description for a term of three years or upwards, and the Magistrate was in error in not framing a charge under section 75, Indian Penal Code. The Sessions Judge has, therefore, reported the case for orders of this Court under section 438, Criminal Procedure Code. We may say at once that the aforesaid observation of a Division Bench of thi Court does lend itself to the interpretation put upon it by the Magistrate. Bu evidently that observation must have been the result of a slip in reading the section and the learned Judges could not have meant to lay down anything contrary to the express terms of the section.