One of the main objects of this provision is to check recidivism. A second conviction for an offence, punishable under Chapter XII dealing with offences relating to coin and Government stamps spread over sections 230 to 263-A of the Code and under Chapter XVII dealing with offences against property spread over sections 378 to 462 of the Code punishable with imprisonment of three years or more, is to be visited with more sternly.
It is merely an enabling provision. The Courts may punish such recidivism more severely if they so think, basing their judgment on facts and circumstances of each such case. The Courts are not obliged to punish more severely; they may do so and they may not, depending on adequate grounds.
The section says that where someone has been convicted for such an offence under Chapters XII and XVII of the Code which is punishable with imprisonment of three years or more, and again commits such an offence under either of these chapters which is punishable with imprisonment of three years or more, for the second offence he shall be subject to imprisonment for life or rigorous or simple imprisonment up to ten years.
He may have committed the same offence a second time or may have committed another offence, but the first offence and the second offence must be punishable with three year terms of imprisonment or more; whether he had been actually awarded three years imprisonment in the first instance or not does not make a difference because the offence should be punishable with imprisonment of three years or upwards.
The Supreme Court has held in Dilip Kumar Sharma v. State, that the expression ‘whoever having been convicted’ under this section means that the previous sentence must have been in operation. In case a previous conviction has been set aside by a higher
Court, it does not come within the abovementioned expression and consequently, this section has no application in such a case because it could not be said that the accused had a previous conviction.
The language is explicit when the section says whoever having been convicted by a ‘Court in India’. This means that the conviction must have been by a Court in India. Conviction by a foreign Court in a foreign country is naturally not covered under this section.