Judgment :- 1. This reference under S.438 Cr. P.C., is by the District Magistrate, Trichur and it raises the question of the interpretation of S.75 of the Penal Code. Learned State Prosecutor appeared in support of the reference and at our request Sri. V. Nagappan Nair kindly appeared as amicus curiae. 2. The accused in this case was tried by the Sub Magistrate, Chowghat for offences under S.457 and 380 I.P.C., the case against him being that on 22-6-64 he broke open into one of the rooms in Guruvayoor Devaswom Sathram and committed theft of a fountain pen and some cash. When charge was framed, read and explained to the accused he pleaded guilty. On his plea he was convicted but as the accused had previously been convicted for like offences under S.457 and 380 and sentenced to rigorous imprisonment for two months, learned Magistrate framed an additional charge under S.75, I.P.C. to which also the accused pleaded guilty and he was, therefore, sentenced to undergo rigorous imprisonment for 6 months for each of the offences with a direction that the sentences would run concurrently. 3. Learned District Magistrate has pointed out that the Sub Magistrate was wrong in making use of the provisions of S.75, I.P.C., and framing the additional charge. S. 75, I.P.C., reads: "Whoever having been convicted (a) by a court in India, of an offence punishable under Chapter XII or Chapter XVII of the Code with imprisonment of either description for a term of three years or upwards, xxx xxx xxx xxx 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." So the section only provides that any person previously convicted of an offence under Chapter XII or Chapter XVII may be liable for a term of imprisonment than what he otherwise would have been liable as provided in the section. But the section does not prescribe a minimum punishment for a previous conviction. The previous conviction in this case is one under S.457 and 380 I.P.C. The maximum sentence provided for the offence under S.457 is five years and fine and if the offence intended to be committed is theft the term may be extended to 14 years. But the section does not prescribe a minimum punishment for a previous conviction. The previous conviction in this case is one under S.457 and 380 I.P.C. The maximum sentence provided for the offence under S.457 is five years and fine and if the offence intended to be committed is theft the term may be extended to 14 years. Under S.380 I.P.C., the maximum sentence provided is imprisonment of either description for a term which may extend to 7 years and also a fine. Under S.75 provision is made for enhanced sentence up to ten years and imprisonment for life. S.75, I.P.C., thus provides for an enhanced maximum sentence. Although Magistrates frequently frame charges under S.75, I.P.C., 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. S. 348 may usefully be referred to. That section reads: "(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 an 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. xxxxxxxxxxxxxx In a case where a Second Class Magistrate is trying an accused for an offence under S.380 and he feels that he could not award a proper sentence either because of the gravity of the offence or because the accused is an old offender with previous convictions and that sentence which he is competent to inflict would not be sufficient, he has to commit the accused under S.348. Rule 95 of the Madras Criminal Rules of Practice is also to the same effect. Rule 95 of the Madras Criminal Rules of Practice is also to the same effect. R.95 reads: "Cases in which persons accused of offences punishable under Chapter XII or Chapter XVII of the Indian Penal Code with imprisonment for a term of three years or upwards, such persons having been previously convicted of offences punishable under either of those chapters with imprisonment for a term of three years or upwards shall not be forwarded by subordinate to District or Sub-Divisional Magistrates under S.349 of the Code of Criminal Procedure, but shall be committed to the Court of session under S.348, if the Magistrate trying the case is of opinion that he cannot himself pass an adequate sentence." 4. So in cases where the Sub Magistrate does not find that the sentence which he is competent to award will not be sufficient, no charge under S.75 need be framed. Support for this view can be had in the decision of the Allahabad High Court in Mohammadi v. State (1956 A.L.J. 611), where it is stated that S.75 I.P.C. 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. Similarly in the case in Addul Karim v. Emperor (AIR. 1933 Nag. 315), the accused with previous convictions was tried for house breaking and theft and sentenced to rigorous imprisonment for 5 years. The facts of his previous convictions were not stated in the charge, and the question arose whether this omission renders the conviction illegal. It was held that the: section has no application as the sentence which has been awarded is one within the: limits laid down by S.380 I.P.C. for the offence with which the accused is charged, namely, theft. The enhanced punishment, referred to in sub-section (7) of S.221 relates to infliction of enhanced punishment as provided by S.75 I.F.C. as the punishment of a different kind referred to in the same sub-section relates to the provisions of the Whipping Act. The enhanced punishment, referred to in sub-section (7) of S.221 relates to infliction of enhanced punishment as provided by S.75 I.F.C. as the punishment of a different kind referred to in the same sub-section relates to the provisions of the Whipping Act. The provisions of S.75 I.P.C. are not to be brought into action where the sentence intended to be awarded is within the competence of the court to award under the ordinary provisions of the Code. Consequently the provisions of S.221, subsection (7) Cr. P.C., have no application. So in this case there was no need for the Magistrate to have framed an additional charge under S.75 I. P. C. The Magistrate has awarded only 6 months' imprisonment which is well within the maximum prescribed for the offence under S.457 and 380 and could have been awarded without recourse to S.75. We, therefore, agree with the view of the learned District Magistrate, but nothing further need be done in the case.