EMPEROR Vs. KASHIA ANTOO

JUDGEMENT

(1.) The point of law which arises in this case does so under the following circumstances.

(2.) The accused Basir Shaik Hassan, a Mahomedan, was found guilty by a Common Jury of offences under Secs.379 and 114 of the Indian Penal Code of theft and the abetment thereof as in Section 114. It appears that the accused when a juvenile was found guilty of theft on the 21 October 1902 and was then sentenced to whipping, and the question now is whether that previous conviction can be put-in evidence against him now. This question depends upon the correct construction to be placed upon Section 75. 75. Whoever having been convicted of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards shall be guilty of any offence punishable under either of those chapters with imprisonment of either description for a term of three years or upwards, shall be subject for every such subsequent offence to cransportation for life, or to imprisonment of eitherdescription for a term which may extend to ten years.

(3.) It has been held in Empress V/s. Nana Rahim (1880) L.R.R. 5 Bom. 140, Empress of India v. Ram Dayal (1881) I. L, R. 3 All. 773, Queen-Empress v.Sricharan (1887) L.R.R. 14 Cal. 357, Queen-Empress V/s. Ajudhia (1895) L.R.R. 17 All.120, and Queen-Empress V/s. Bharosa (1895) L.R. R. 17 All. 123, that an enhanced punishment cannot be awarded where the offence subsequently committed is merely an attempt to commit an offence punishable under Chapter XII or XVII. In other words those Courts decided that where a subsequent offence is an attempt under Section 511, it cannot be used for the purpose of enhancement of sentence under Section 75. In Mr. Mayne's work on the Criminal Law of India and Messrs. Ratanlal and Dhirajlal's work on the Law of Crimes, it is said that the enhanced punishment cannot be awarded for the abetment of an offence punishable under Chapter XII or XVII; but the authorities, I have referred to, do not deal with the question of abetment but with the question of an attempt under Section 511.