In Re: Nattayyan

N. Krishnaswamy Reddy, J.—The point involved in this reference and revision is whether it is necessary to frame a charge u/s 75, Indian

Penal Code, by the Magistrate in Warrant Cases for proving previous conviction for the purpose of awarding enhanced sentence to the accused

convicted of offences punishable under Chapter XII or Chapter XVII of the Code with imprisonment of either description of a term of three years

or upwards.

The brief facts leading to the reference by the learned District Magistrate, North Arcot are these : During the scrutiny of calendar and judgments

of the Additional First Glass Magistrate, Vellore, the learned District Magistrate noticed that the accused who was the same in C.C. Nos. 117 to

119 of 1968 on the file of the said Court was sentenced to undergo Rigorous Imprisonment for six months under each of the two counts viz., 457

(latter part) and 380, Indian Penal Code, the sentences to run concurrently, though he was previously convicted by the same Court for a similar

offences in C.C. No. 305 of 1965 on 11th December, 1965 and sentenced to undergo Rigorous Imprisonment for nine months. The learned

District Magistrate felt that the Additional First Class Magistrate should have framed a charge u/s 75, Indian Penal Code, in respect of his previous

conviction in C.G. No. 305 of 1965 and awarded a more severe sentence than what was imposed by him. He therefore, called for remarks from

the Additional First Class Magistrate for not having framed charge u/s 75, Indian Penal Code. The Additional First Class Magistrate submitted a

report stating that it was not necessary to frame charge u/s 75, Indian Penal Code, unless he felt that the sentence to be imposed by him would not

be adequate as provided for the offence and it was only necessary to do so in the Court of Sessions where a higher sentence than the ordinary

maximum sentence has to be imposed. The Additional First Class Magistrate in his report relied upon a decision of a Division Bench of the Kerala

High Court in State of Kerala v. Krishnan Kutti (1966) M.L.J. 296. The learned Additional First Class Magistrate further submitted that he had

not framed supplemental charge u/s 75, Indian Penal Code, relying on the said decision. The learned District Magistrate in. his reference pointed

out that under Rule 65 of the Criminal Rules of Practice, the charge u/s 75, Indian Penal Code, should be framed in all cases where the punishment

of an accused person is affected. He also stated in his reference that under Rules 308 and 309 of the Criminal Rules of Practice, the previous

convictions and sentences shall be stated at the end of the judgment in all cases where the rules require a judgment to be submitted and in other

cases, the particulars of previous convictions and sentences shall be invariably entered in the column of remarks and that in all sessions calendars

submitted to the High Court particulars of previous convictions and sentences should be given except in cases of acquittal and a note should be

made as to whether any or all of those previous convictions have been admitted by or proved against the accused. These Rules have been referred

to by the learned District Magistrate obviously for the reason that irrespective of the nature of the punishment awarded to the accused person, the

previous conviction, if any, of the accused should be noted. The learned District Magistrate also-referred to the practice in vogue in the Courts of

Magistrates that if the Magistrate finds an accused person guilty of an offence mentioned u/s 75, Indian Penal Code, and convicts him, if there is a

previous conviction against the said accused, he would frame a charge u/s 75, Indian Penal Code, invariably for awarding a more deterrent

sentence than ordinarily given. The learned District Magistrate suggested that in the case of old offenders dealt with by the Magistrates that the

existing practice prevailing in many of the Courts should be followed and that a supplemental charge u/s 75, Indian Penal Code, has to be framed

where the Magistrate on conviction considers that the accused would be liable for enhanced punishment than that which was awarded in the

previous case. He was therefore, of the opinion that the procedure followed by the Additional First Class Magistrate in the three cases without

framing charges u/s 75, Indian Penal Code, and awarding sentence of six months less than the sentence imposed on the accused in the previous

case, namely, nine months, was wrong. He requested in his reference to quash the conviction and sentence imposed on the accused and remand

the case for fresh disposal according to law.

To appreciate the point involved in this reference, the following provisions of the Indian Penal Code and the Criminal Procedure Code have to

be considered:

Section 75, Indian Penal Code, run thus:

Whoever, having been convicted:

(a) by a Court in India, 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 like imprisonment for the like term, shall be subject for every such

subsequent offence to imprisonment for life or to imprisonment of either description for a term which may extend to ten years.

The head note to Section 75 is as follows:

Enhanced punishment for certain offences under Chapter XII or XVII after previous conviction.

This section enables the Court to impose enhanced sentence upto the maximum of Imprisonment for life or to imprisonment of ten years of either

description for any offence committed by a person mentioned therein if he had been previously convicted for the like offence irrespective of the

maximum sentence provided for such offence. No minimum sentence is provided under this section

Section 221(7), Criminal Procedure Code, in respect of framing of charges lays down as follows:

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 subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the

punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in

the charge. If such statement has been omitted, the Court may add it at any time before sentence is passed.

This clause deals with the manner of framing a charge where enhanced punishment is to be awarded by reason of previous conviction. Section 511

Criminal Procedure Code provides as to the mode of proof of previous conviction in any enquiry trial or other proceeding under the Criminal

Procedure Code Section 348(1) Criminal Procedure Code, provides in respect of trial of persons previously convicted of offences against

property and it runs thus:

Whoever, having been convicted of an offence punishable under Chapter XII or Chapter XVII of the Indian Penal Code with imprisonment for a

term of three years or upwards, is again accused of any offence punishable under either of those chapters with imprisonment for a term of three

years or upwards, shall if the Magistrate before whom the case is pending is satisfied that there are sufficient grounds for committing the accused,

be committed to the Court of Sessions or High Court, as the case may be, unless the Magistrate is competent to try the case and is of opinion that

he can himself pass an adequate sentence if the accused is convicted.

Similarly, Section 349(1), Criminal Procedure Code, is as follows:

(1) Whenever a Magistrate of the second or third class, having jurisdiction is of opinion after hearing the evidence for the prosecution and the

accused that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate

is empowered to inflict or that he ought to be required to execute a bond u/s 106, he may record the opinion and submit his proceedings, and

forward the accused to the District Magistrate or Sub-Divisional Magistrate to whom he is subordinate.

The other clauses are omitted as not relevant.

u/s 310, Criminal Procedure Code, the procedure is laid down for framing charge by a Sessions Judge in cases of previous conviction for

awarding enhanced punishment.

From the foregoing provisions, the following points relevant for discussion in this case can be deduced (1) An accused who has got previous

conviction for offences punishable under Chapter XII or Chapter XVII of the Code by virtue of Section 75, Indian Penal Code, if convicted can

be punished to the maximum of imprisonment for life or ten years. (2) If the Magistrate before whom the case is pending is satisfied that there are

sufficient grounds for committing the accused to take his trial on the ground that the punishment which can be awarded by him after conviction will

not be adequate by reason of the previous conviction of the accused, he can commit the accused to the Court of Session (3) Whenever Magistrate

of the second or third Class after hearing the evidence of the prosecution and the accused is of the opinion that the accused is guilty and ought to

receive a deterrent punishment, may record his opinion and submit his proceedings to the District Magistrate or Sub-Divisional Magistrate to

whom he is subordinate irrespective of the fact whether the accused has previous conviction or not (4) In cases where enhanced sentence has to

be imposed, a charge u/s 75, Indian Penal Code, has to be framed and put to the accused.

It appears at the outset from the reading of the above provisions that where a Court can award the maximum sentence, which it is competent to

award the aid of Section 75. Indian Penal Code, is unnecessary for imposing such maximum sentence by the Court. It also appears that a

Magistrate when he feels by virtue of previous conviction of an accused, he should be committed to sessions for receiving enhanced sentence, he

can do so. It is significant that where the Magistrate commits an accused to take his trial in sessions by virtue of his previous conviction it is not

necessary for him to frame a charge u/s 75, Indian Penal Code, and commit the accused to sessions. It is clear that the Sessions Court has to

frame a charge u/s 75, Indian Penal Code for the purpose of proving previous conviction So far as the Magistrates are concerned, the First Class

Magistrates are competent to impose sentence of imprisonment not exceeding two years and the Magistrates of Second Class to imprisonment not

exceeding six months. It would appear that a Second Class Magistrate can impose a maximum sentence of six months and the First Class

Magistrate can impose a maximum sentence of two years and that therefore, without proof of previous conviction, the Magistrates can impose the

maximum sentence as they desire in each case. It is contended that the Magistrates trying persons who have got previous convictions, need not

frame charge u/s 75, Indian Penal Code as they are competent to impose the maximum sentence provided under the law. In other words, it is

stated that a charge has to be framed only by Sessions Court on a committal by the Magistrate u/s 348 (1), Criminal Procedure Code. It is also

submitted that an enhanced sentence provided u/s 75, , Indian Penal Code, cannot be equated with a deterrent sentence that a Magistrate can give

in a particular case depending upon the circumstances of that case, but that will mean only the sentence to be imposed more and above the

maximum sentence provided for the particular offence. If we are left with the provisions mentioned above alone, it can be said that there is some

substance in this contention, but Section 255-A, Criminal Procedure Code, which has been introduced by an amendment in 1917 confers power

on the Magistrates to frame charges u/s 75, , Indian Penal Code, in respect of a person who is found guilty of offences under Chapter XII or

XVII, Indian Penal Code,

Section 255-A Criminal Procedure Code, runs thus:

In a case where a previous conviction is charged under the provisions of Section 221, Sub-section (7), and the accused does not admit that he has

been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused u/s 255, Sub-section (2) or

Section 258, take evidence in respect of the alleged previous conviction, and shall record a finding thereon.

This provision has been introduced as the Legislature thought that the Magistrates also should be empowered to frame a charge u/s 75, , Indian

Penal Code, as Sessions Judges are empowered to frame a charge u/s 310, Criminal Procedure Code. If the Magistrate is empowered to frame a

charge u/s 75, , Indian Penal Code, the question now arises as to under what circumstances he can frame charge. It is clear from this provision that

the Magistrate after convicting the accused may frame a charge u/s 75, , Indian Penal Code, obviously for the purpose of imposing enhanced

sentence. If the Magistrate can give the maximum sentence in all cases that he is competent to give, there is no necessity of introducing Section

255-A, Criminal Procedure Code, empowering a Magistrate for the purpose of giving enhanced sentence. It is clear from this section that

whenever a deterrent sentence has to be given to the accused than ordinarily given for a first offender, the previous conviction of the said person

has to be considered, and if that is taken into consideration, a charge u/s 75, , Indian Penal Code, must be framed and proved. The quantum of

sentence to be imposed on a convicted person cannot be arbitrary. It must be judicious. Though the Magistrate is competent to give any sentence

ranging from the minimum to the maximum that he is competent to impose, he has to take the circumstances of each case including the character,

antecedents and similar other things of the accused convicted for imposing a proper sentence. That is why the Legislature thought that the same

power given to a Sessions Judge for imposing enhanced sentence which he is competent to impose in consequence of a previous conviction,

should be conferred on the Magistrates also in warrant cases u/s 255-A, Criminal Procedure Code, for taking into consideration the previous

conviction for imposing enhanced sentence. Enhanced sentence must be taken to mean not merely the sentence more and above than the sentence

provided for a particular offence but also a deterrent sentence even within the range of the maximum sentence that the Court is competent to

impose. Otherwise, the imposing of sentence will be left to the whims and fancies of the Court. The previous conviction is evidence of the

antecedents of the person accused of the offence which will be a guiding factor for giving proper sentence. The evidence of bad character is

relevant for imposing enhanced sentence. It is significant to note in this context that u/s 54 of the Evidence Act, a previous conviction is made

relevant as evidence of bad character. It is, therefore, necessary in all cases where it is brought to the notice of the Magistrate that there is a

previous conviction in respect of a person who is convicted that he should take the previous conviction into consideration for the purpose of

imposing a deterrent sentence. It is of course true that while giving enhanced sentence, the Magistrate should also take into consideration the nature

of the offence and the circumstances under which the offence is committed, of which the accused is convicted even while considering the previous

conviction of the said person. The practice in the Courts of the Magistrates is that after the accused is found guilty and convicted, the previous

conviction, if any, is taken note of and put to the accused, and if the accused denies, to prove the charge u/s 75, , Indian Penal Code, for the

purpose of imposing deterrent sentence.

In an earlier decision of this Court in Queen-Empress v. Doraiswami I.L.R.(1386) Mad 284, which was rendered by Kernan and Muttuswami

Ayyar, JJ., even before the introduction of Section 255-A, Criminal Procedure Code, the practice prevailing in Madras is stated in the following

terms:

The practice appears to be to charge the prisoner, say, of theft, No charge u/s 75, of the Indian Penal Code, is placed on the record, but if the

prisoner is convicted the Magistrate questions the prisoner whether he was convicted of the prior offence whatever it is. To this inquiry the prisoner

replies either admitting or denying the fact; and if he denies, the Magistrate without framing a charge tries him. If convicted then the Magistrate in

his judgment ... refers to the prior conviction as a ground for increasing the punishment beyond what would be given for a first offence.

No doubt the sentence pronounced may be...within the competence of the Magistrate to inflict for the first offence.

But the object and direction of the Code are that for each offence there must in warrant cases be a separate charge.

The Division Bench directed the Magistrate to follow the views expressed by it and in such cases frame a charge u/s 75, and try on that charge.

A Full Bench of the Lahore High Court in King Emperor v. Dalip Singh ILR (1943) Lah. 477 : 211 Ind.Cas. 283 : 45 PLR 414 : AIR 1944

Lah. 25, endorsed the views of the Division Bench of that Court in respect of the correct procedure in framing charges u/s 75, , Indian Penal

Code, by the Magistrate while giving enhanced sentence within the competence of such Magistrates. The correct procedure stated in the said

decision is in the following terms:

...When, however, the Magistrate considers it fit to frame a charge u/s 254 in respect of the substantive offence, he should then have recourse to

Section 221(7) and in that charge should include the previous convictions. He should then ask the accused to plead to that charge making it clear

to him that he is pleading to the previous convictions distinctly from the original offence. Then comes Section 255-A and under that section if the

accused admits his previous conviction or convictions, they do not have to be proved separately and the Magistrate can take them into

consideration in convicting and sentencing him for the main offence. If, however, the accused does not admit his previous convictions, the

Magistrate has to proceed to judgment on the substantive charge and if that is a judgment of conviction, he has then to take evidence according to

law, i.e., u/s 511 of the Code as to the previous convictions and then come to a separate finding upon them after which he will pass the proper

sentence under the substantive section read with Section 75, of the Indian Penal Code.

This decision makes it clear that the Magistrates on a convictions in appropriate cases of the substantive offence, for the purpose of giving

appropriate sentence, must take into consideration previous conviction, if any, of such accused and prove such previous conviction after framing a

charge according to Section 511, Criminal Procedure Code.

But unfortunately, in the decision of the Division Bench of the Kerala High Court, in State of Kerala v. Krishnan Kutty (1966) M.L.J. 296,

Section 255-A Criminal Procedure Code, was not brought to its notice. Without reference to Section 255-A, Criminal Procedure Code, a wide

proposition has been laid down in the following terms:

...Although Magistrates frequently frame charges u/s 75, , it is only necessary to do so in the Court of Session where a higher sentence than the

ordinary maximum sentence has to be imposed.

In cases where the Magistrate does not find that the sentence which he is competent to award will not be sufficient, no charge u/s 75, need be

framed.

Section 75, comes into operation only when a person is sought to be punished with imprisonment exceeding the maximum imprisonment provided

for the offence. So long as the maximum punishment provided for the offence is not to be exceeded there is no need to resort to its provisions and

any reference to them would be irrelevant.

With great respect, I am unable to agree with such a wide proposition laid in the said decision. Obviously, Section 255-A, Criminal Procedure

Code, as already stated by me, was not considered in that decision. The Division Bench of course relied upon a decision of the Allahabad High

Court in Mohammadi v. State (1956) A.L.J. 611, where it is stated that Section 75, , Indian Penal Code, comes into application only when a

person is sought to be punished with imprisonment exceeding the maximum imprisonment provided for the offence. It is significant to note that even

in the said decision, the implication of Section 255-A, Criminal Procedure Code, was not considered.

In a subsequent decision of the Kerala High Court in In re, Narayana Panicker (1967) M.L.J. 424, it is observed that in fixing the punishment

it is open to the Magistrate to take the previous conviction also into consideration. This decision contributes to the view that a previous conviction

is at least relevant for the purpose of giving deterrent sentence.

In the result, I find that the evidence of previous conviction is always relevant for the purpose of imposing a deterrent sentence and the

Magistrates shall take the previous conviction into consideration when an accused is convicted under Chapters XII and XVII of the Code. It may

be that in a particular case where a person is convicted, the offence may be trivial and in such a case, it may not be necessary that the previous

conviction should necessarily be taken into consideration for the purpose of imposing enhanced sentence as the substantive offence under which he

is convicted may not warrant such a view. In the circumstances of the case, it is not necessary to quash the sentence imposed by the Magistrate,

though the view taken by him that it was not necessary to take the previous conviction of the accused into consideration is obviously incorrect. The

reference is ordered accordingly. The valuable assistance rendered by T. P. Radhakrishnan Counsel appointed amicus curiae, is recorded.