EMPEROR Vs. ISMAIL ALIBHAI

JUDGEMENT

(1.) This is an appeal against a conviction for using criminal force to deter a public servant from the discharge of his duties. The offence consists in this that the two accused succeeded in preventing the arrest of a person who was believed to be taking part in traffic in cocaine. The two accused were sentenced and we are dealing with the appeal of one of them.

(2.) On the evidence, I think, the Magistrate was right in holding that the offence was committed. The chief question argued is this: Is a previous conviction one of the matters which a Court is permitted to consider in imposing sentence 1 The imposing of sentence is, within the wide limits allowed by the law, a matter of discretion; it is not a matter of proof. That is it is a matter within the sphere not of evidence but of penology. Section 54 of the Indian Evidence Act is a part of the law of evidence, not a part of the penal law. It regulates what is relevant for the purpose of proof at the enquiry or trial, not what is relevant for the purpose of deciding whether a long or a short sentence should be imposed. Its purpose is quite plain; ordinarily evidence of bad character, including a previous conviction, is irrelevant to help to establish an accused person s guilt But the law of evidence does not define or profess to define those matters which a Court should consider in using its discretion in passing sentence. What these matters are to be, is largely left to practice and to the common sense and knowledge of the world of the Court. Where they are definitely indicated this is done in the Indian Penal Code and the law of Criminal Procedure, the Whipping Act and so forth; most emphatically not in the Law of Evidence. One might as reasonably, I think, look to the Law of Evidence for information as to the maximum sentence to Tpesed. In my judgment, therefore, to apply Section 54 of the Indian Evidence Act to the matter now before us is as much out of place as to apply, say, the Hindu Law to an European s will. Of course, the previous conviction, if it is to be taken into account, must be proved to the satisfaction of the Court, and in the matter of proving it, it may be that the provisions of the Indian Evidence Act apply. I do not wish to express any opinion on that point.

(3.) Having regard to the previous conviction, I think that the sentence imposed in this case is appropriate to the offence and I would dismiss the appeal and confirm the conviction and sentence. Shah, J