1. The accused in this case has been convicted, by the Assistant Sessions Judge, Kozhi kode, of theft, at 5 a.m on July 8, 1968, from the compound of P.W 1's residence of 10 coconut saplings (3 months old). According to the procecution he was found red-handed by P.W 1 and his friend, P.W 2 on their way to the mosque for the morning prayer, was chased for about 15 yards and taken in a car to the Police Station, Wandoor, about 3½ miles away where they reached by about 11 a.m and gave the first information. The accused pleaded that he purchased the coconut saplings from Edakkara and was taking them for delivery to his uncle at Wandoor when on his way P.W 1 and P.W 2 met him and suspecting the coconut saplings in his hand to be stolen property dragged him to the Police Station at about 3.30 p.m The Sub Magistrate, Manjeri, committed him to the Sessions. The Assistant Sessions Judge who tried him did not believe his defence, found him guilty, convicted him under Section 319 I.P.C and sentenced him to two years' rigorous imprisonment to be followed by Police surveillance for two years on the ground that he had been given two years' prison, term in Sessions Case No. 14 of 1964. On going through the calendar in the case, I felt the sentence to be too severe and unmerited and therefore issued notice to the State to show cause why the sentence should not be reduced. Shri M.A Joseph appeared for the State, explained the scope and meaning of S. 75, Indian Penal Code, and conceded frankly and fairly — as he ought to do — that the sentence was bit too severe.

2. It is a matter for regret that, in spite of several reported precedents — all in the same trend — there prevails a serious misunderstanding as to the scope and meaning of S. 75, I.P.C among certain Magistrates and Session Judges, who seem to assume that the Section is a mandate to inflict an enhanced or severe sentence on an offender who had previous convictions, irrespective of the nature and gravity of the offence concerned. It is pertinent to remember that the scheme of the Indian Penal Code is to fix a measure of punishment for every kind of offence and ordinarily the fact of previous convictions is not to be taken into account either in judging the guilt — evidence of bad character of the accused is tabooed under S. 54 of the Evidence Act — or in fixing the punishment.

3. Section 75 I.P.C is an exception to that rule. It singles out offences under Chapter XII (relating to offences against coinage and stamp law) and Chapter XVII (relating to offences against property), and empowers the Court to award a greater measure of punishment for a repetition of the crime. Apart from the indication in S. 848, Criminal P.C, as to when the extra, ordinary powers under S. 75, Penal Code, are to be invoked, it is pertinent for those who deal with the life and liberty of fellow-citizens in a free country to remember that abhorrence of a criminal is not an unmixed virtue, that the human frame invariably contains some finer tissues and it does no good to anybody to devitalize those tissues rather than revitalize them and that therefore punishments should not be more severe than is strictly warranted by the circumstances of the case at hand.

4. Section 75 of the Indian Penal Code reads;

“75. Whoever, having been convicted 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.”

5. Section 348(1), Criminal P.C, which lays down the procedure to be followed by Magistrates in cases coming under the scope of S. 75, Penal Code runs thus:

“348. (1) 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 Session 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:

6. I will first take the substantive aspect and then the procedural.

7. Section 75, Penal Code, does not prescribe that a severe sentence should be imposed for a repetition of any crime by an offender. It does not prescribe a minimum sentence for any event. It does not say that a convict of a petty theft committed without any violence should be given a severe sentence if he had half a dozen previous convictions for like offences to his credit. As early as 1878, Jackson and Cunningham JJ. pointed out in In re, Shamjee Nashyo, (1878) 1 Cal LR 481, that “it was not the intention of the Legislature, and is not in accordance with reason, that a previous conviction should so enormously enhance the heinousness of petty offences.”

8. In 1908, in Kasim Ali v. The Crown, (1908) 7 Cri LJ 293 (Lah), Kensington J. cautioned that “S. 75, Penal Code should not be applied mechanically” and in 1914 in Jowahir Singh v. Emperor, 15 Cri LJ 183 : (AIR 1914 Lah 476) where the offender committed a ‘technical theft’ by annexing the complainant's ornaments and refusing to return them, though he returned them the next morning after the complaint was laid before the Police, the same learned Judge held:

“In the case of Jowahir Singh, I think it absurd to treat the offence more seriously with reference to S. 75, Indian Penal Code, or to make his conviction for a trifling offence of the kind the occasion for a long period of Police supervision. His appeal is so far allowed that his sentence of imprisonment is reduced from 7 years to six months and the further order under S. 565, Criminal P.C, is also set aside as not justified by the facts of the case. The man may be a bad character, but he did not in this affair commit a serious crime.”

9. The principle appears well explained by P.R Das J. in Sheikh Chamman v. Emperor, AIR 1920 Pat 526. There the appellant was convicted of cheating to the extent of Rs. 2, and sentenced to transportation for nine years on the ground that he was “liable to receive enhanced sentence inasmuch as there are previous convictions against him”. The learned Judge observed:

“In my opinion that there is much misapprehension as to the scope and meaning of S. 76, I.P.C The view which seems to have found favour with the Courts is that as soon as it can be shown that there is a previous conviction within the terms of S. 75 against the accused person, the Court is bound to pass an enhanced sentence on him, that is to say, a sentence wholly disproportionate to the actual offence under investigation. In my judgment, there is no justification for this view in the section itself. The words ‘enhanced sentence’ find no place in the section, though they do occur in the marginal note to the section. But the marginal note forms no part of the statute itself and is not binding as an explanation or constructions of the section: Claydon v. Green, (1868) 3 CP 511. I must be guided by the section itself, and in my judgment, the section does not empower a Court to pass ‘an enhanced sentence’ (to adopt the expression commonly used by the criminal Courts) merely because there are previous convictions against the accused person, although it enables the Court to sentence a person to transportation for life or to imprisonment up to ten years. The distinction, in my view, is important. In the one case, the Court would be at liberty to inflict a punishment out of all proportion to the offence committed. In the other case, the Court would be able to pass a sentence commensurate with the gravity of the offence, a power which but for S. 75 I.P.C, the Court would be powerless to exercise. It is the experience of most criminal Courts that they have at times felt handicapped by the sections of the Code providing for the punishment, with the result that they have been at times unable to pass adequate sentences on accused persons. Section 75 removes that disability, but it imposes as an essentiel condition for the exercise of the power that there must be previous conviction against the accused person. I will illustrate my meaning at once. Take, for instance, a case of theft. The maximum punishment which a Court is empowered to inflict on a person convicted of theft is three years' rigorous imprisonment. Now I do not think that a Court is at liberty to pats a sentence of seven years' imprisonment on a person convicted of theft, merely because there are previous convictions against him, if the offence itself does not call for a severe punishment. But the offence may be of sufficient gravity calling for a severer punishment than that permitted by S. 379. If there are no previous convictions, the Court is helpless in the matter. If there are previous convictions, the Court is able to pass an appropriate sentence on the accused person. In other words, S. 75 enables a Court to pass a sentence commensurate with the nature of the offence on the accused person; it does not empower a Court to pass a sentence disproportionate to the nature of the actual offence. This view is considerably strengthened by decision of the Calcutta High Court in the case of Sheo Saran Tato v. Empress, (1883) ILR 9 Cal 877, where the learned Judges said that recourse should not be had to S. 75, if the punishment provided for the offence is sufficient.”

10. Fforde J., In Isher Singh v. Emperor AIR 1926 Lah 617 and Dalip Singh J., in Khushdil v. Emperor, AIR 1927 Lah 647 (1) held that a previous conviction, had a long time before the subsequent offence does not warrant the application of S. 75 Penal Code.

11. In Kunj Lal v. Emperor, AIR 1929 Lah 278 the accused was sentenced to three years' rigorous imprisonment to be followed by one year's Police surveillance, for stealing a pair of shoes which had been left outside a shop by a customer. Fforde J., observed:

“I have repeatedly had occasion to point out that a previous conviction which took place a considerable time before a subsequent offence does not warrant the application of S. 75. A man who has committed two offences at a long interval of time cannot be held to be an habitual offender, and S. 75, Penal Code, is directed against habitual offenders. In the present case the petitioner has, so far as the evidence on the record goes, been leading a blameless life for some nine years since he first came in conflict with the criminal law. The present offence is a petty one and in itself hardly deserved more than, at the most, a sentence of six months. In my opinion, the provisions of S. 75, should not have been applied in the circumstances of this case. I would accordingly set aside the sentence of three years' rigorous imprisonment and police surveillance and reduce the penalty to the period of imprisonment already undergone by the petitioner, which I understand is some seven months.”

12. Though in this judgment his Lordship has observed that S. 75 should not be applied except to habitual offenders, the principle really is that the lapse of an interval of good conduct after expiry of the sentence given for the previous offence would be a relevant fact Bgninst the invocation of S. 75.

13. In Harnam Das v. Emperor, AIR 1930 Lah 100 (1) the accused was convicted of stealing akhes costing Rs. 4 and sentenced to five years' rigorous imprisonment on the strength of two previous convictions one under S. 411, Penal Code, for 10 days' imprisonment, and the other under S. 379, Penal Code for three months' imprisonment. Pforde J., held:

“I have repeatedly pointed out that for an offence trivial in itself, as is the present one greatly enhanced punishment should not be inflicted merely because there have been previous convictions against the offender. In my judgment a sentence of six months' imprisonment would meet the ends of justice, and I, accordingly, accept this appeal to the extent of reducing the punishment from five years' rigorous imprisonment to six months' rigorous imprisonment.”

14. In Maulu v. Emperor, AIR 1929 Lah 787 Fforde J., with the concurrence of Dalip Singh J., observed:

“…. The appellant, who appeals through jail, has been convicted of stealing a sum of Rs. 10-2-6 by picking a pocket in a crowd…. The learned Sessions Judge, who tried the case, has sentenced the appellant to transportation for life invoking the provisions of S. 75, Penal Code, for the purpose of enabling him to impose that sentence…. In 1909 there is no doubt the appellant engaged in a crime of a much more serious nature and was rightly awarded an appropriate sentence for that offence. The next offence if one assumes that the appellant served his full term of imprisonment was committed some 12 years after his release, and he must be deemed for those 12 years to have led a blameless life. Therefore, when he again committed an offence on 31st August 1925 he could not then be said to be a habitual offender. Moreover, it is now over three years since the last offence was committed. Under these circumstances it seems to me wrong to treat the appellant as a habitual perpetrator of serious crimes and to sentence him to transportation for life for an offence of a somewhat trivial nature. The appellant cannot be said to be irreclaimably addicted to serious crime and, though the learned Sessions Judge was entitled to take into consideration his previous career for the purpose of gauging the amount of punishment which he deserves for this offence, I do not think he is justified in invoking the provisions of S. 75, Penal Code, to give him the sentence which he has now imposed.

The English Courts of Criminal Appeal have frequently pointed out that it is not proper for a Court to impose a heavy sentence for trivial offence even in the case of a habitual offender. In B. v. Oliver Taylor, (1824) 18 Cr App Rep 143 the Lord Chief Justice in delivering the judgment of the Court observed:

‘The appellant pleaded guilty to the charge of stealing a woman's coat from a lobby leading to the office where she was employed. He is 35 years old, and he had previously been convicted on 20 occasions. The last sentence he served was one of 18 months' imprisonment, from which he was relased in October 1923. He was out of prison for nine months before the commission of the present crime. It has been said over and over again in this Court that the mere fact that a man has been convicted many times is no; in itself sufficient reason for passing a heavy sentence on him for an offence which is trivial in itself. The Court is satisfied that the proper sentence here is one of 12 months' imprisonment with hard labour.’

In my judgment the present offence must be dealt with on its merits, bearing in mind, of course, the previous career of the appellant. I am of opinion that, in view of all the circumstances of the case, 12 months' rigorous imprisonment is sufficient to meet the ends of justice.”

15. In re, Munuswami, AIR 1947 Mad 386 1 Yahya Ali J., has laid down the rule succinctly in these words:

“It has been held in a number of decisions by this Court that although the fact of previous convictions is an element in determining the sentence, essential regard should be had to the fasts of the case, the gravity of the offence and the circumstances in which it was committed in assessing the punishment and the mere circumstance that there were previous convictions should not result in the infliction of a sentence that is far out of proportion to the merits of the main case.”

16. Kameala Adimoorthy v. Emperor, 1937 Mad W.N 737 (1) exposes another line of misunderstanding on the scope of S. 75, Penal Code and it is that the sentence for a subsequent offence of the kind mentioned in the section should not be less than that imposed for a previous conviction, irrespective of the nature and gravity of the later offence. King J., observed:

“The sentence is very heavy and is very possibly due to an impression in the mind of the learned Judge that he ought to award a longer sentence than that awarded in the appellant's last previous conviction. Of course there is no rule of law that a conviction under S. 75, Penal Code must invariably be followed by a heavier sentence than the one immediately preceding it. It is difficult in individual cases to decide between the ordinary principle of passing it sentence appropriate to the nature and circumstances of the crime, and the principle which is at the back of S. 75 of preventing a habitual offender from further depredations upon the property of his fellow men for a lengthy period, but to sentence a man of 35 to ten ears' rigorous imprisonment in a case of this hind where the property stolen was not very valuable and no violence was resorted to, is, I think, to apply S. 75 much too harshly.”

17. In re, Abdulgani Sahib, AIR 1937 Mad 231 Pandrang Row J., reduced the sentence of six years for theft of property worth Rs. 50, observing:

“There seems to be an idea prevalent in the minds of some Judges that there is a rule that the sentence on an old offender should always be at least a little more severe than the sentence just previous. This so-called rule cannot be supported by any good reason.

It may be an excellent rule of thumb, but I do not think, in imposing sentences, such a rule can be safely followed, in the interests of the proper administration of criminal justice. While the sentences imposed on criminals should be adequate to the offence, there is every reason why they should not be excessive. Apart from the injustice to the offender which an excessive sentence entails, such a sentence tends to undermine public confidence in the administration of criminal justice.”

18. Now I take S. 348, Criminal P.C, (quoted above). As mentioned already, it lays down the procedure to be followed by the Magistrates in cases coming under S. 75, Penal Cods. It does not say that all cases which may come within the scope of S. 75, I.P.C, should be committed to the Court of Session. It requires the Magistrate before whom the case is pending, to commit the accused to the Court of Session or the High Court as the case may be if he “is satisfied that there are sufficient grounds for committing the accused,” and forbids committal if the Magistrate “is of opinion that he can himself pass an adequate sentence if the accused is convicted.” The inclusion of S. 75, I.P.C, in the charge does not, by itself, necessitate a committal to the Court of Session.

19. In Public Prosecutor v. Palapati Ramkrishnaiah, AIR 1955 Andh 190 it was urged by the Public Prosecutor that in view of S. 348, Criminal P.C, read with S. 75, Penal Code, the Magistrate ought to have committed the accused to Sessions, as the accused had a number of convictions and the Second Class Magistrate was not competent to punish him adequately. Chandra Reddi J., (as he was then) observed:

“Now the question for consideration is whether in every case falling under S. 75, Penal Code, a Magistrate is bound to commit the accused to Sessions, in other words, has he no discretion to consider whether it is a fit casa for committing the accused to sessions. It looks to me that it is not obligatory on the Magistrate to commit the accused to Sessions in all cases under all circumstances without any regard to the nature and the gravity of the offence. In fact, the section directs him to commit the accused to Sessions only if he is satisfied that there are sufficient grounds for doing so.

When once he feels that there are grounds for committing the accused to Sessions, then he is under it duty to do it unless he is competent to try the case and comes to the conclusion that he can himself pass an adequate sentence. It is true that the latter part of S. 348 is mandatory but that would come into play only when the Magistrate feels that the circumstances of the case warrant the committal of the accused to the Sessions.

It does not contain any invariable rule that in all cases governed by S. 75, Penal Code, a committal to the Sessions should follow. In such case, the Magistrate has to apply his mind to the circumstances and decide whether it is a fit case for committing the accused to Sessions. The construction sought to be placed by the learned Public Peosecutor in my opinion, is opposed to the plain meaning of the section….

It is now fairly settled that it is not absolutely necessary that in every case, irrespective of the nature of the offence, an enhanced punishment should be awarded. It is a well-understood principle of administration of criminal justice that the punishment should be commensurate with the gravity of the offence. It should neither be too lenient nor very excessive being disproportionate to the nature of the crime committed. The circumstances of each case have to by considered by the Magistrate before awarding a particular sentence….

It is certainly open in my opinion, to a Magistrate to award a sentence less than that given on a previous occasion if the circumstances of the case warrant it. So, in deciding whether a Magistrate should himself try the case or should commit the accused to Sessions, he should bear in mind surrounding circumstances……”

20. In Mohammadi v. State, 1957 Cri LJ 275 (All), M.C Desai J. reiterated the same principle as he observed:

“There is no minimum imprisonment prescribed for a previous convict. A previous convict can be given imprisonment for a term of one year or even less. Section 75, Penal Code, comes into application 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…. For the purpose of the sentence the learned Magistrate could take the previous conviction into consideration even though it was not mentioned in the charge.”

21. In State of Kerala v. Krishnankuttey, 1965 Ker LT 1043 a Bench of this Court (Atma Chandy and Gpvinda Menon JJ.) haa approved the dictum in the above case.

22. It is thus not obligatory in all cases coming under the scope of S. 75, Penal Code, to commit the accused to Sessions. Considering the nature and gravity of the offence and the circumstances in which it is committed, the Magistrate has first to judge whether a sentence more severe than that prescribed for the offence as such dehors S. 75, Penal Code is necessary in the case. If only he is satisfied that a severer sentence than the maximum provided for the offence is called for, he need invoke S. 75, Penal Code and consider the need for a committal of the accused to the court of Session under S. 348, Criminal P.C In other cases, particularly where the offence charged is a trivial one, the Magistrate has to deal with the case himself and meet out justice. As pointed out in 1957 Criminal L.J, 275 (All.) in fixing the punishment it is open to him to take the previous convictions also into consideration. If the offence is a petty one—as is the case here—and therefore does not call for a severe sentence, even the committal to Sessions would be unwarranted; but that would not affect the jurisdiction of the Sessions Judge to try the case.

23. The accused in this case has been convicted of theft of ten cocoanut saplings which, on auction by the Sub-Magistrate fetched Rs. 4-12 p. only. Merely on the ground that “he is seen to have been convicted for an offence under S. 379 read with S. 75, Penal Cods and sentenced to undergo rigorous imprisonment for 2 years in Sessions Case No. 14 of 1964 on the file of this Court” the Assistant Sessions Judge has sentenced him “to undergo rigorous imprisonment for two years” with police surveillance thereafter for another two years. The records in Sessions Case No. 14 of 1964 referred to by the Assistant Sessions Judge have been called to know the nature of the offence that he committed then. The judgment therein reads:

“According to the prosecution the accused Sri Narayana Panicker is supposed to have on 21-1-1964 at about 2.30 a.m in Nilambur amsom committed theft of a bunch of areca but worth R. 1.12 nP. from standing areca palm in the compound belonging to and in the possession of Pw. 1 Puthenveettil Kumaraa. It is the case of the prosecution that Pw. 2 Karunskaran while returning after a cinema found the accused climbing down an areca palm belonging to Pw. 1, raised a cry, that Pw. 1 and others came out, that Pw. 2 caught the accused red handed with the stolen property and that immediately thereafter they produced him before the Station House Officer, Nilambur and the complaint Exhibit P-I was reduced to writing by the Head Constable, Pw. 3…. I find the accused guilty of an offence under S. 379 of the Penal Code.

It is the case of the prosecution that the accused was involved in similar offences before and that he had 8 previous convictions to his credit…. This fact should necessarily weigh with me while awarding a sentence in this case. Taking all these circumstances into consideration I find the accused guilty of the charge framed against him and sentence him to undergo rigorous imprisonment for a term of 2 years. After the expiry of the sentence he will notify his residence to the police for a further period of 3 years….”

24. Obviously it is for a very petty theft that the accused was given two years' prison term with hard labour to be followed by Police surveillance for three years in the previous conviction in Sessions Case No. 14 of 1964. I am constrained to observe that, on the principles laid down in the precedents cited above, that was an unmerited sentence and to gauge the punishment now to be imposed on the basis of the aforesaid sentence, I am afraid, would be quite unwarranted and unfair.

25. I do not propose to go into the merits of the conviction, in this Calendar Revision. The conviction must stand. But, in view of the law explained in the precedents quoted above, which I respectfully adopt, I must reduce the sentence. I do so and reduce it to four months' rigorous imprisonment. Considering the age of the offender — the calendar in this case shows that he is 81—, I would recommend his case for rehabilitation after release from jail to be seriously considered by the District Probation Officer, Kozhikode, who will try to secure for him some work—some piece work or cooly work—and watch his career for a reformation. A copy of this judgment will be forwarded to the District Probation Officer.

N.R.K/G.G.M

26. Ordered accordingly.