Honble JAIN, J.—This appeal u/s. 372 (2) Cr.P.C. is directed against the judgment dt. 30.5.1992 passed by learned Addl. Sessions Judge, Bhilwara whereby he has convicted the appellant Rajesh u/s. 411 I.P.C. read with Sec. 75 I.P.C. and sentenced him to 7 years R.I. and convicted appellant Kailya u/s. 398 read with Sec. 75 I.P.C. and sentenced him to 10 years R.I. in sessions case No.97/90. (2) Briefly stated the facts of this case are that one Kailashchand lodged an F.I.R. on 14.8.1990 at 1.45 P.M. at P.S. Mandal alleging that when his mother was going to her field, on the way near Panditji-Ka-Kua somebody caught hold her hand and dragged her to nearby lane and sat over her chest and removed three gold Baliyas from her ears and two Kariyas from her feet. Thereupon, a case u/s. 392 I.P.C. was registered and site inspection memo and other exhibits were prepared. The accused-appellants were arrested on 15.8.1990 vide Ex. P.9 and 10 respectively. The test identification parade was held on 22.8.1990 in respect of the appellant Kailya. On the information and at the instance of the accused-appellant Kailya two gold Baliyas and one silver Kariya were recovered vide Ex.P.13 and he also got recovered a Katar vide Ex. P. 7. Similarly on the information and at the instance of accused-appellant Rajesh one bali and one silver Kariya were recovered vide Ex.P.3. After due investigation challan was filed against the appellant u/s. 398 IPC before the learned Munsif and Judicial Magistrate, Mandal and the case was thereafter committed to the court of Addl. Sessions Judge, Bhilwara. Charge u/s. 398 IPC was framed against the appellants. They denied the charge and claimed trial. The prosecution in support of its case examined P.W.1 Kailash Chand, P.W.2 Chainsukh, P.W.3 Sohanlal, P.W. 4 Mst. Kanchan, P.W.5 Prakash, P.W. 6 Narbada, P.W.7 Jayant Kumar, P.W.8 Pavanchand and P.W. 9 Ramprakash, and P.W. 10 Maheshchand Mehta. The accused-appellant in their statement u/s. 313 denied the allegation and stated that they have been falsely implicated due to some dispute with the Thanedar and they were shown to the witnesses before identification. However, no defence witness was produced. The learned trial court after conclusion of the trial found both the appellants guilty and convicted and sentenced accused-appellants as aforesaid. Dissatisfied with the judgment of the learned Addl. Sessions Judge, hence this appeal. (3) Mr. However, no defence witness was produced. The learned trial court after conclusion of the trial found both the appellants guilty and convicted and sentenced accused-appellants as aforesaid. Dissatisfied with the judgment of the learned Addl. Sessions Judge, hence this appeal. (3) Mr. Mohanani, learned counsel for the appellants has submitted that the trial court has erred in convicting and sentencing the accused-appellants with the aid of Sec. 75 IPC as it is not attracted because in earlier case the sentences awarded to them was below three years. He has also submitted that the conviction of the accused-appellant Kaliya u/s. 398 is not at all attracted and at the most appellant Kaliya may be convicted U/s. 411 IPC. He has lastly prayed that a lenient view may be taken as regards the sentence awarded to the appellants. He has placed reliance on Jagdish vs. State of Raj.(l), Dulli and Ors. vs. Emperor (2) and Mahendra Singh vs. State (3). (4) Learned Public Prosecutor has supported the judgment passed by the trial court and submitted that the learned trial court has rightly enhanced the sentence u/s. 75 IPC as the accused- appellants were convicted earlier and no interference is called for. (5) I have heard learned counsel for the parties and perused the record as well as the case law cited at Bar. (6) So far as the first contention of the appellants regarding applicability of Sec. 75 IPC is concerned, it would be useful to read Sec. 75, which runs as under : — "75. (5) I have heard learned counsel for the parties and perused the record as well as the case law cited at Bar. (6) So far as the first contention of the appellants regarding applicability of Sec. 75 IPC is concerned, it would be useful to read Sec. 75, which runs as under : — "75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction 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 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." (7) A bare perusal of Sec. 75 shows that where a person who has been previously convicted of an offence punishable under Chapter XII (which deals with offences relating to coin and Government Stamps) or Chapter XVII (which relates to offences against property) with imprisonment of either description for a term of three years or upwards, is once again found guilty of a similar offence, he shall be liable to enhanced punishment which may extend to imprisonment for life or to imprisonment of either description for a term which may extend to ten years. In my opinion, the section is concerned with a previous conviction for a similar offence but it does not postulate that in respect of the previous conviction, the punishment imposed should have been in respect of an offence punishable with a term of imprisonment for a term of three years or upwards, but it does not lay down that the offender should have been actually punished with such a term of imprisonment on earlier occasion for the offence under Chapter XII & XVII. The key word is "punishable". In other words, the quantum of sentence awarded is not a sine-qua-non, but the permissible upper limit of the sentence of imprisonment for the offence should be three years or upwards. The key word is "punishable". In other words, the quantum of sentence awarded is not a sine-qua-non, but the permissible upper limit of the sentence of imprisonment for the offence should be three years or upwards. (8) In the instant case, both the appellants were earlier convicted u/s. 454 and 380 IPC of Chapter XVII and for both the offences the upper limit of sentence is more than 3 years though each of them was sentenced to 7-1/ months R.I. with a fine of Rs. 50/- and in default of payment of fine to undergo further 15 days R.I. which is evident from the warrant but it does not make Sec. 75 inapplicable as the basis of this section is not the punishment actually awarded but the punishment legally awardable. All that is required, is that the previous offence must have been punishable under Chapter XII or XVII with imprisonment for three years or upwards and the subsequent offence must also be so punishable. Even it is not necessary that, at the previous conviction, the offender should have been sentenced to any term of imprisonment. As stated above the accused-appellants are previously convicted of an offence punishable under Chapter XVII and their previous conviction is still in operation. Further they have been awarded sentence. Therefore, the contention of Mr. Mohanani that Sec. 75 IPC is not attracted because in earlier case the sentences awarded to them was below three years has no legs to stand and he cannot take any benefit out of the decision rendered by the learned Single Judge of this Court in Jagdish vs. State of Rajasthan (supra) as that decision was rendered while relying on Kamya vs. State (4) which was reconsidered by a Division Bench of the Andhra Pradesh High Court in Inre Sugali Nage Naik (5) and it has been observed that the previous offence need only be similar and must be punishable for three years or more and the period has no reference to actual punishment. In view of this the case of Jagdish vs. State (supra) is not applicable to the facts of present case. In Inre Naik (supra) it has been further observed as under : — "(9) The learned Judges reading of Sec. 75 I.P.C. was obviously due to a slip. In view of this the case of Jagdish vs. State (supra) is not applicable to the facts of present case. In Inre Naik (supra) it has been further observed as under : — "(9) The learned Judges reading of Sec. 75 I.P.C. was obviously due to a slip. However, that be now that we have clarified the position, we hope Magistrate in this State will not allow themselves to be misled by the above quoted observation contained in that judgment. We are saying this because it is represented to us by the learned Public Prosecutor that several Magistrates have been refusing to frame charges under Section 75 I.P.C. relying on the said observation." (9) The same view has been followed in Ghisulal Gopal Dhimar vs. State of M.P. (6). Therefore, in view of the above, it is not necessary for me to refer the matter before the Division Bench. (10) Mr. Mohanani, learned counsel for the petitioner has next contended that charge u/s. 75 I.P.C. has been wrongly framed against the accused-appellants. He has also submitted that the procedure has not been followed by the learned trial court and nothing was put to the appellants and, therefore, the circumstances which are not put to the accused in his examination will have to be completely excluded. (11) Section 75 does not create any new offence. It merely imposes liability to enhance the punishment. It is true that the accused should not be questioned about his previous conviction at the initial stage, so that the trial of the accused may not be prejudiced. However, the charge under this section can be framed at any stage before convicting and sentencing the accused for the main offence. There is a procedure for framing the. charge under Section 75 IPC, which is set out in the provisions of Ss. 211 (7), 236, 248 (3), 324 and 356 Cr.P.C. and a separate form No. 32 (III) is provided for the purpose. According to the procedure the accused should be asked to plead that charge making it clear that he is pleading to the previous conviction distinctly from the original offence. If the accused admits his previous conviction or convictions, they do not have to be proved separately and they can be considered while convicting and sentencing the accused for the main offence. If the accused admits his previous conviction or convictions, they do not have to be proved separately and they can be considered while convicting and sentencing the accused for the main offence. But to prove that previous conviction, it must form the subject matter of the charge, it must be proved and the enhanced sentence must be within the jurisdiction of the Magistrate. (12) In the instant case, the learned trial court invoked Section 75 IPC while enhancing the sentence observing that the fact of previous conviction has been admitted by the Advocate appearing on behalf of the appellant Kaliya in his absence, which is not admissible. That apart the fact of serving sentence is not sufficient to show that the accused pleaded guilty of previous conviction. Admittedly, the procedure set out in law has not been adopted by the trial court while framing the charge against the accused-appellants under Sec. 75 for enhancing the sentence. Thus, it has caused prejudice to the accused resulting in miscarriage of justice which has not been disputed by the learned Public Prosecutor. In view of this, the contention of Mr. Mohanani has some substance. Therefore, under these circumstances, the learned Addl. Sessions Judge, Bhilwara has committed an error by not following the procedure while framing the charge u/s. 75 IPC against the appellant. (13) Learned Public Prosecutor submits that the error is not of such a nature which vitiate the trial and it can be cured or at least the case may be remanded for framing charge u/s. 75 IPC. On the other hand, Mr. Mohanani submits that the error is of grave nature and this court should quash the conviction u/s. 75 IPC. (14) Now, it is to be seen whether the case should be remanded or not for framing fresh charge u/s. 75 IPC. Section 464 provides that the finding, sentence or order passed by a competent court cannot be vitiated on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge. It further shows that in case an error, omission or irregularity in the charge has occasioned a failure of justice, the court of appeal can direct a new trial but if the facts of the case are such that no valid charge could be preferred, it shall quash the conviction. It further shows that in case an error, omission or irregularity in the charge has occasioned a failure of justice, the court of appeal can direct a new trial but if the facts of the case are such that no valid charge could be preferred, it shall quash the conviction. As stated above, the charge u/s. 75 IPC was admitted by the Advocate in the absence of the accused which is a serious defect in the given case and it cannot be justified or cured by the consent of the Advocate of the accused. That apart, Section 75 provides that if any person, having been convicted of any offence punishable under Chapters XII or XVII, shall be guilty of any offence punishable under either of those parts of the same Code, he shall for every such subsequent offence be liable to the penalties therein declared. In other words, the accused renders himself liable to enhance punishment by reason of there having been previous conviction against him before he committed the present offence. In the instant case, the accused were not convicted on the date of offence as the incident has taken place on 14.8.1990 and on completion of the trial, charge u/s. 75 IPC was framed on 30.5.1992, whereas for the previous offence the accused-appellants were convicted on 9.4.1991. Therefore, it is clear that when the accused committed the second offence, he had not been convicted for the first offence. Consequently, the section did not apply to it. I am supported by the decisions rendered in Po So vs. Emperor (7), Sayad Abdul Sayed Imam vs. Emperor (8) and a Division Bench of this Court in State vs. Badri (9). (15) In Po So vs. Emperor (Supra) wherein it has been observed that : — "An accused renders himself liable to enhanced punishment under S. 75 I.P.C. only if there was a previous conviction against him before he committed the offence with which he stands charged. (15) In Po So vs. Emperor (Supra) wherein it has been observed that : — "An accused renders himself liable to enhanced punishment under S. 75 I.P.C. only if there was a previous conviction against him before he committed the offence with which he stands charged. But where the previous conviction was subsequent to the commission of the offence charged, S. 75 I.P.C. has no application." (16) In Sayad Abdul Sayad Imam vs. Emperor (supra), it has been observed that:- "Section 75 does not apply to an accused who commits second offence after the date of the first offence but before his conviction of the latter." (17) Division Bench of this Court while considering Sections 7 & 16 of the Prevention of Food Adulteration Act, in State vs. Badri (supra) has observed that :- "The phrase "the second offence" should be construed as that offence which has been committed after the offender had been convicted for the first offence, and similar meaning should be given to "the third and subsequent offences". In this view of the matter, the offence committed by the petitioner can neither be treated as a third offence nor even a second offence because it was committed by the petitioner on 14.07.59 whereas the conviction for the first offence was pronounced on 9th June. 1960." (18) The aforesaid view has been followed in Badri vs. State (supra) wherein the alleged second offence was committed on 30.8.1962 whereas the conviction for the so-called first offence was made on 12.11.1962. It has been held that the offence committed by the accused cannot be said to be the second offence within the meaning of S. 16 (1) (ii) of the Prevention of Food Adulteration Act. (19) It was next contended by Mr. Mohanani that the identification parade of the accused-appellant Kaliya was not conducted according to law and, therefore, the conviction of the accused Kaliya u/s. 398 IPC is not sustainable as it does not create an offence. (20) In the given case admittedly in the F.I.R. no description of the accused is mentioned and the conviction of the accused-appellant hinges on the identification of the accused, the court should be cautious in examining this aspect while basing the conviction of the accused. (20) In the given case admittedly in the F.I.R. no description of the accused is mentioned and the conviction of the accused-appellant hinges on the identification of the accused, the court should be cautious in examining this aspect while basing the conviction of the accused. In the present case, the complainant has alleged in the FIR that when his mother was going to her field on the way near Panditji-Ka-Kua somebody caught hold her hand and dragged her to nearby lane and sat over her chest and removed gold ornaments. The incident took place on 14.8.1990 and the accused -appellants Rajesh and Kaliya were arrested on 15.8.1990. It is pertinent to note that there is no eye-witness of the incident. The identification parade was held on 22.8.1990 in the presence of the Judicial Magistrate. Admittedly, the petitioner was not kept Kaliya was not kept Baparda. The learned Judicial Magistrate has appended a note mentioning in the identification parade memo (Ex.P-8) that the accused has stated that he was shown to the witness at Thana. The accused-appellant Kaliya has also stated in his statement under Sec. 313 Cr.P.C. that he was shown to the witness before identification and this fact has not been disputed by the learned Public Prosecutor Mr. Agha therefore, the test identification parade creates a suspicion on the prosecution. In view of this, in the absence of any injury on the person of Narbada and direct evidence on the record that the accused Kaliya was the person who looted articles and attempted robbery. The contention of Mr. Mohanani that Sec. 398 IPC is not at all applicable has some substance. Under the circumstances, it is not safe to convict the accused Kaliya u/s. 398 IPC, only on the basis of such identification, particularly when no charge u/s. 392 or 394 IPC has been framed. That apart a bare perusal of Sec. 397 and 398 shows that neither S. 397 nor S. 398 creates an offence. The effect of these sections is merely to limit the measure of punishment which may be awarded if certain facts are proved. Admittedly, no other charge was framed except S. 398 IPC. As Sec. 398 IPC only regulates the measure of punishment and it can be made applicable when certain facts found to exist in the commission of substantive offence which may be either robbery or dacoity. Admittedly, no other charge was framed except S. 398 IPC. As Sec. 398 IPC only regulates the measure of punishment and it can be made applicable when certain facts found to exist in the commission of substantive offence which may be either robbery or dacoity. So, in my view no conviction is possible under this section alone, therefore, the conviction of the accused-appellant Kaliya u/s. 398 without framing a charge for substantive offence deserves to be set aside. However, the accused-appellant Kaliya has been found to be in possession of one silver Kada and gold Baliyan. These recovered articles have been identified by Mst. Narbada to be her properties. So, there is no reason to disbelieve the evidence of Mst. Narbada to this effect. Thus, I have no hesitation in holding that the accused Kaliya was found in possession of articles and for which he is liable to be convicted u/s. 411 IPC, which has not been disputed by the learned counsel for the appellant. (21) The accused-appellant Rajesh has been acquitted of the offence u/s. 398 as Mst. Narbada could not identify him in the test identification parade but he has been convicted u/s. 411 IPC. So far as the conviction of the appellant Rajesh u/s. 411 IPC is concerned, admittedly one Kada and gold Baliyan have been recovered and the learned Sessions Judge has rightly convicted him u/s. 411 IPC and Mr. Mohanani has not challenged the same. (22) Mr. Mohanani has lastly submitted that a lenient view as regards the sentence may be taken. (23) As discussed above, when the conviction of the accused-appellant u/s. 75 IPC has been set aside, so also the conviction of the accused-appellant Kaliya u/s. 398 has also been converted. There remains conviction u/s. 411 IPC against the accused-appellants for which the maximum sentence can be awarded to three years R.I. In the instant case, the accused-appellants have remained in jail for about 18 months of incident of 1990 and the articles have already been recovered. Under these circumstances, in my opinion, the ends of justice will met, if the sentence undergone by the appellants held to be adequate. (24) In the result, this appeal is partly allowed. The conviction of the appellants u/s. 75 IPC for the purpose of awarding sentence is set aside. Under these circumstances, in my opinion, the ends of justice will met, if the sentence undergone by the appellants held to be adequate. (24) In the result, this appeal is partly allowed. The conviction of the appellants u/s. 75 IPC for the purpose of awarding sentence is set aside. The conviction of the appellant Kaliya u/s. 398 IPC is set aside and instead of it he is convicted u/s. 411 IPC. The conviction of the appellant Rajesh u/s. 411 IPC is maintained. The sentence already undergone by both the appellants is held to be adequate. The accused-appellants Kaliya and Rajesh are in jail and they be released forthwith if not required in any other case.