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Judgment
Raman Nayar, J.—The accusation in this case was of a second offence for which Section 16(1)(i) of the Act creating the offence, namely, Central Act XXXVII of 1954 provides for the enhanced penalty of imprisonment which may extend to two years. The case was, therefore, a warrant case. Particulars of the first offence were furnished in the complaint and, therefore, the learned Magistrate should have tried the case under the provisions of Chapter XXI of the Criminal Procedure Code, and the proper stage for charging the accused with the previous conviction and of recording evidence, if necessary, in respect of that charge, would have been the stage mentioned in Section 255-A.
The procedure adopted by the learned Magistrate of trying the case under Chapter XX of the Code, convicting the accused on his own admission of guilt, and ignoring the prior conviction on the ground that no evidence of that conviction was adduced before him whereas, in reality he gave the prosecution no opportunity of adducing such evidence is irregular, if not stringent, and the petitioner''s complaint that this has resulted in the accused being convicted of the lesser offence u/s 16(1)(i) seems to he well founded.
Therefore, this petition is allowed, the conviction and sentence recorded against the accused are set aside, and the case sent back to the trial court for fresh disposal in accordance with law.