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Criminal Revision No. 24 of 1948, decided on 16th December 1548.
(a) Penal Code (XLV of 1860), S. 75‑--Previous conviction taking place about a month after case under consideration‑Application of S. 75, held doubtful.
There is some doubt as to whether the application of section 75 of the Indian Penal Code was necessary, especially in view of the fact that the previous conviction of the accused under section 380, Indian Penal Code, took place about a month after the case under consideration.
(b) (Penal Code (XLV of 1860). S. 457, 380‑--House‑breaking followed immediately by theft‑Separate but concurrent sentences should be passed.
Two years' rigorous imprisonment collectively for both offences under sections 457 and 380, Indian Penal Code, tad been awarded although the Magistrate had recorded conviction under each of these two sections. Separate sentences should have been awarded. The sentences should have been made--‑concurrent in accordance wish the principle enunciated in cases of a similar nature where house‑breaking is followed immediately by theft.
--‑The record of this case was called for as from a perusal of the trial Magistrate's return of cases, the sentence imposed appeared to be excessive. The proceedings and judgment of the trial Court art on the whole in order, the main point for consideration being whether the sentence was excessive or not. There is some doubt as to whether the application of section 75 of the Indian Penal. Code was necessary, especially in view of the fact that the previous conviction of the accused under section 3130 1. P. C. took place about a month after the case under consideration. It is also observed that section 75 I. P. C. should be applied with discretion particularly in cases where the sentence provided for the offence is adequate.
The learned trial Magistrate has awarded a sentence of two year R. I. collectively for both offences under sections 457 and 3SO I. P. C although he has recorded conviction under each of these two sections Separate sentences should have been awarded. The sentences should have been made concurrent in accordance with the principle enunciate by this Court in cases of a similar nature where housebreaking is followed immediately by theft.
In my opinion the sentence awarded in this case by the learned trial Magistrate is excessive and in this matter the Public Prosecutor agrees with me.
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