ABDUL KARIM Vs. EMPEROR

JUDGEMENT

(1.) GRILLE , J.C. 1. This is a jail appeal which on its merits has no force at all. The accused was caught red-handed stealing money at the Nagpur Railway Booking Office. He has admitted five previous convictions in respect of theft and house-breaking and has been sentenced to five years' rigorous imprisonment. The facts of his previous convictions were not stated in the charge, and the question arises whether this omission renders the conviction illegal. Section 221, Sub-section (7), Criminal P. C., runs: 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 sub-sequent offence, and it is intended to prove such previous conviction for the purpose of effecting the punishment which the Court may think it fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be staged in the charge. If such statement has been omitted, the Court may add it at any time before sentence is passed.

(2.) I do not consider that the section has any application as the sentence which has been awarded is one within the limits laid down by Section 380, I. P. C., for the offence with which the accused is charged, namely, theft. The enhanced punishment, referred to in Sub-section (7) of Section 221 relates to infliction of enhanced punishment as provided by Section 75, I. P. C. as the punishment of a different kind referred to in the same Sub-section relates to the provisions of the Whipping Act. The provisions of Section 75, I. P. C., are not to be brought into action where the sentence intended to be awarded is within the competence of the Court to award under the ordinary provisions of the Code. Consequently the provisions of Section 221, Sub-section (7), Criminal P. C., have no application. The procedure is correct and the appeal is dismissed.