DELHI ADMINISTRATION Vs. GOVERDHAN LAL

JUDGEMENT

(1.) THIS is an appeal by the Delhi Administration directed from the order of acquittal passed by the learned Additional Sessions Judge, Delhi, acquitting Goverdhan Lal of the charge of theft of which he had been convicted by a learned Magistrate and sentenced to undergo rigorous imprisonment for one year. One of the distressing features of this case which I shall like to state at the outset is that a Bench of this Court while admitting the present appeal directed bailable warrants to the satisfaction of the District Magistrate under section 427, Criminal Procedure Code, on 11th February 1963. A letter dated 4th September 1963 from the District Magistrate's office to the Deputy Registrar of this Court shows that the warrants were duly executed. On 15th April 1964 the Deputy Registrar of this Court wrote to Shri Dilbagh Rai, Advocate, urging to him to defend amicus curiae Goverdhan Lal accused and a copy thereof was forwarded to the Superintendent, Central Jail, New Delhi, for information of the accused who is supposed to be still in custody. This would suggest that right from the time of his arrest in execution of warrants issued in pursuance of this Court's order, he -has been in custody in the Central Jail, New Delhi. This state of affairs is far from happy or even satisfactory. It would have been desirable for the counsel for the Delhi Administration to have expedited the hearing of this appeal in view of the fact that the accused was in custody and no one had come forward to stand bail for him.

(2.) IN so far as the merits of the case go, it appears to us that the accused was virtually caught red handed and the statements by the witnesses for the prosecution amply establish his guilt. Tulsi Ram, P.W. 1, had deposed that on 27th March 1962 at about 8 -30 P.M. when he had come for lunch, he saw the accused coming down from the staircase with the witness's durri and blanket in his hand. He identified these two articles to belong to him. On his raising an alarm , the dhobi, who was ironing the clothes outside, caught hold of the accused. Some persons gathered there and the police also arrived soon. There was no cross -examination by the accused. Mool Chand, P.W. 2, is the dhobi who has corroborated the statement by P.W. 1. On Tulsi Ram's raising an alarm, this witness caught hold of the accused known as Gowardhan together with the durri and the blanket. This witness has also not been cross examined. Shri Lal Man, Head Constable, has proved the first information report exhibit P.A. The statement of the accused was thereupon recorded and he answered every question put to him in the negative, also giving no reason for the case against him. He of course admitted having been caught outside, apparently meaning outside the house of the complainant.

(3.) THE learned Additional Sessions also seems to me to have been not quite right in taking the view that the learned Magistrate had imposed an enhanced penalty on the appellant on account of his previous convictions. Section 3S0, Indian Penal Code, prescribes maximum imprisonment of either description for seven years and fine for an offence of theft mentioned therein. The sentence imposed by the learned Magistrate only extended to rigorous imprisonment for one year The fact that in view of the admitted previous convictions, the Court felt that a somewhat severer sentence, but within the limits laid down in section 380. Indian Penal Code, was called for, does not, in my opinion, attract the provisions of section 251 A(13), Criminal Procedure Code. This clause provides that in a case where a previous conviction is charged under the provisions of section 221(7), Criminal Procedure Code and the accused does not admit his previous conviction, as alleged in the charge, the Magistrate may. after he has convicted the accused under sub -section (5) or (12) of section 251 -A, take evidence in respect of the alleged previous conviction, and shall record a finding thereon. In the present case, it is clear that the accused had admitted his previous conviction. Section 221(7), Criminal Procedure Code, provides that if the accused having been previously convicted of any offence, is liable by reason of such previous conviction, to enhanced punishment or to punishment of a different kind for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such a statement is omitted, it is open to the Court to add it at any time before the sentence is passed. In the case in hand, as the order of the learned Additional Sessions Judge itself shows, no charge under section 75, Indian Penal Code, was framed and it is also the view of the Court below that the Magistrate had not intended to impose the enhanced punishment under the said section. The learned Additional Sessions Judge has expressed the view that the learned Magistrate had been prejudiced against the appellant because of his admission of his previous conviction. This perhaps is so because the learned Magistrate has stated that the case does not deserve a very lenient vie v and has, therefore, imposed a sentence of rigorous imprisonment for one year which was considered sufficient under section 380, Indian Penal Code, which prescribes the maximum penalty of seven years. Resort to the provisions relating to the cases in which the Court considers to impose enhanced penalty because of previous convictions was not necessitated merely by the imposition of sentence of one year's rigorous imprisonment in the case in hand; more so because the factum of previous conviction was not denied by the accused.