JAGDISH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner has been convicted for the offences u/Ss. 457, and 380, IPC read with S.75, IPC and sentenced as under by the Judicial Magistrate, Sawai Madhopur by his judgment dated 17/10/1984: Under Section 457 read with Section 75 IPC One year's Rigorous Imprisonment with a fine of Rs. 100.00 in default of payment of fine to undergo one month S.I. Under Section 380 read with Section 75 IPC Six months R.I. with/ fine of Rs. 50/and in default of payment of fine to further undergo S.I. for 15 days. The scope of revision is very limited and hence the facts shall be mentioned very briefly. One Kalu reported to Security Officer, Jaipur Udyog Limited, Sawai Madhopur that during his absence an alarm clock and Rs. 195.00 were stolen and the Security Officer reported the matter to Police Station Sawai Madhopur where the case was registered. After investigation challan was put up and after trial the petitioner was found guilty of offences under Ss.380 and 457, IPC. This finding was recorded on 27-6-1983 and thereafter an additional charge u/S. 75, IPC was framed. The Additional charge was read over to the petitioner and he stated that his previous conviction had been set aside in appeal. In order to find out whether the petitioner had been convicted earlier the learned Magistrate recorded the evidence and thereafter came to the conclusion that the earlier conviction had been maintained in appeal for offence under S. 454, IPC and the appeal had been accepted only so far as S. 75, IPC was concerned. This time, therefore he sentenced the petitioner for offences under Ss. 457 and 380, IPC with the aid of S. 75, IPC.

(2.) So far as oral evidence in the case is concerned, it has already been considered by the learned Sessions Judge and the charge of offences under Ss.458 and 380, IPC stand proved against the petitioner.

(3.) The learned counsel for the petitioner has contended that S. 75, IPC is applicable only when the previous conviction is under Chapter XII or Chapter XVII and the imprisonment awarded is for the term of three years or upwards. It is only when both these conditions are satisfied that the accused would be liable to enhanced punishment as is provided in S. 75, IPC. His second contention is that the petitioner has been sentenced not for the substantive offence of S. 457, IPC and 380, IPC but with the aid of S. 75, IPC and when S.75, IPC goes away as it is not applicable then no punishment could be awarded the accused petitioner should be acquitted of the offences u/Ss. 457 and 380, IPC and should not be sentenced, by this court.