EMPEROR Vs. BASHIR

JUDGEMENT

(1.) This is a reference made through the Sessions Judge of Saharanpur at the request of the District Magistrate of Saharanpur asking this Court to enhance the sentence of a fine of Rs. 50 or three months rigorous imprisonment in default passed on Bashir, accused, on 10 October 1928, under Section 411, I.P.C. The accused was tried summarily. It is said to have transpired since, that the accused had been convicted on 21 May 1923, under Section 379, I.P.C., and bound over for six months under Section 562, Criminal P.C., and further convicted on 22nd December 1924, under Section 457/75, I P.C. and sentenced to 18 months rigorous imprisonment and Rs. 50 fine or two months rigorous imprisonment in default.

(2.) Admittedly these two previous convictions were not brought to the notice of the trial Magistrate in any way whatever. It is admitted on behalf of the Crown that "the investigating officer failed to mention them in his charge-sheet," and further that "no blame appears to attach to the Magistrate as he was unaware of the previous convictions." It is no doubt in view of this last statement that, so far as our record shows, the trial Magistrate was not asked to offer any explanation.

(3.) We have no hesitation whatever in saying that in a case where material was within the knowledge of the prosecution before the conclusion of the trial and was not brought, by the negligence of the prosecution, to the notice of the trial Court, we ought to refuse to interfere, and in this case we do refuse. To permit the prosecution to plead their own negligence and to harass the accused with further proceedings directed towards the enhancement of the sentence would simply be to put a premium on the exercise of negligence by the prosecution themselves.