Chandra Pal Singh, J.

1. The prisoner Prakah alias Badda by this petition seeks interference with the judgment of the Fourth Additional Sessions Judge, Indore, in Criminal Appeal No. 115 of 1982, maintaining the judgment of the Judicial Magistrate First Class, Indore, in Criminal Trial No. 1532 of 1981, finding the petitioner guilty of offence punishable under section 379 of the Indian Penal Code and considering his being a previous convict sentencing him to rigorous imprisonment for 2 (two) years.

2. On 25th July, 1981, Mangilal (PW-1), at Sarafa, Indore, was buying some fruits, when the fruit-seller, noticing that the petitioner was running away with Mangilal-PW-1's bag containing three clothes kept on the earlier of his cycle, told Mangilal (PW-1) so. The petitioner was chased and soon caught hold of, with the bag containing clothes. He was taken to the Police Station where Mangilal (PW-1) lodged the First Information Report.

3. On these facts, when the petitioner was charged with and tried for the offence punishable under section 379 of the Indian Penal Code, he denied his guilt. At the conclusion of the trial including the examination of the petitioner under section 313 of the Code of Criminal Procedure, the learned Magistrate finding him guilty of the offence charged purporting to act under section 248 of the Code of Criminal Procedure, for the purpose of sentencing him, put further three questions to him, which he answered in the affirmative regarding his previous convictions in Criminal Trial Nos. 571/77 and 967/78 on 10-8-77 and 2-6-80 respectively in both of which he had been let off after due admonition.

4. The learned Magistrate taking these previous covictions into account, sentenced the accused-petitioner to rigorous imprisonment for two years. The petitioner thereupon, appealed to the Additional Sessions Judge but to no avail.

5. The contention of the learned counsel for the petitioner is that the procedure adopted by the learned Magistrate was not in accordance with law.

6. Admittedly, no charge under section 75 of the Indian Penal Code had been framed. Section 75 of the IPC lays down that "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 a term which may extend to ten years." Chapter XVII of these two specified chapters does include the offence punishable under section 379 of the IPC; but it is clear that a formal charge under section 75 IPC has to be framed only when the trying Magistrate feels that he himself is incompetent to award adequate sentence which goes beyond the maximum sentence awardable under the section. In that event he has to commit the accused to the Court competent to pass the adequate sentence. (See: Mohammadji v. The State 1957 Cri. LJ 275) and also section 324(1) of the Code of Criminal Procedure.

7. If on the other hand, the Magistrate finds that he himself is competent to pass the adequate sentence and that sentence does not exceed the maximum awardable under the section, the recourse to framing a charge under section 75 of the IPC is not necessary. (See: Haramohan Deb Nath v. Jaha Baksha Patwari, AIR 1943 Cal 25).

8. Since in the instant case only a rigorous imprisonment for two years has been awarded which does not exceed the maximum awardable under section 379 of the IPC and which is within the competence of the Magistrate, there was no necessity of any charge being framed under section 75 of the IPC as such; and the learned Magistrate was right in not framing a charge under that section.

9. But it cannot be denied that for the petty theft of a hag containing clothes, the learned Magistrate could not have awarded the accused-petitioner sentence of rigorous imprisonment for two years. It, therefore, appears to me that the learned Magistrate