A Comprehensive Evaluation Of Section 31 Cr.P.C Regarding The Sentence To Be Passed For Several Offences At One Trial [Q And A] [PART-II]

PART-I Of This Article Can be read here

THE COMBINED OPERATION OF SECTIONS 31 AND 325 Cr.P.C.

This can be better understood by discussing a concrete example in the form of a problem.

PROBLEM

As members of an unlawful assembly sharing the same common object, A1 to A5 committed rioting and attacked PWs 1 to 3 from a public road at 7 pm. A1 and A2 were each wielding choppers, A3 was having a sword and A4 was armed with an iron rod. A5 was having no weapon. During the said rioting A1 to A3 caused grievous injuries including fractures to PWs 1 to 3 by cutting them with choppers and sword. A4 beat PWs 1 to 3 with the iron rod. A5 fisted and kicked PWs 1 to 3. A1 to A5 were charged by a Magistrate of the first class (JMFC) for offences punishable under Sections 143, 147, 148, 324 and 326 read with Section 149 IPC. After trial, the JMFC found all the 5 accused persons guilty of all the offences they were charged with. The JMFC was of the opinion that the “aggregate punishment” which the accused ought to receive will far exceed the sentencing limit of the JMFC under Section 29 (2) Cr.P.C. After recording his “opinion” as above, the JMFC submitted the proceedings to the Chief Judicial Magistrate (CJM) in exercise of his powers under Section 325 (1) Cr.P.C. The CJM, after receipt of the records, examined the same and passed a sentence as follows:-

There was no direction that the sentences shall run concurrently or consecutively.

NOW THE QUESTIONS

Q.1 Was the JMFC right in passing a judgment of conviction in a case which was to be submitted to the CJM under Section 325 (1) Cr.P.C?

Ans. No. After conducting the trial, wholly or in part, the JMFC should have recorded his “opinion” in terms of Section 325 (1) Cr.P.C and then should have submitted the records to the CJM. Here, the JMFC committed a mistake in proceeding to pronounce the judgment.

Q.2 Was the JMFC justified in invoking Section 325 (1) Cr.P.C for the reasons stated by him?

Ans. No. The reason stated by the JMFC that “the aggregate punishment for the several offences would far exceed the sentencing limit of the Magistrate under Section 29 (2) Cr.P.C,” is not a valid reason for invoking Section 325 (1) Cr.P.C.

Q.3 Could the JMFC invoke Section 325 (1) Cr.P.C for any other reason, if everything else done by the JMFC was proper?

Ans. Yes. The JMFC could have after trial, come to the “opinion” that the trial of the case reveals that A1 to A5 are prima facie guilty of the offences charged against them and that having regard to the facts and circumstances of the case, A1 to A5 ought to receive a punishment more severe than the sentencing limit of the Magistrate under Section 29 (2) Cr.P.C. After recording the said “opinion”, the JMFC should have submitted the proceedings to the CJM under Section 325 (1) Cr.P.C.

Q.4 Was it permissible to convict A5 (who was unarmed) for an offence punishable under Section 148 read with Section 149 IPC?

Ans. No. Since A5 was not armed with any deadly weapon, it was not permissible to convict A5 for the offence under Section 148 IPC with the aid of Section 149 IPC. (Vide –

1. In Re. Muthusami Goundan AIR 1942 Mad. 420 – Horwill – J;
2. Vijayan v. State of Kerala 1959 KLT 704 – S. Velu Pillai – J – Para 10;
3. Kabul Singh v. State of Punjab 1995 SCC (Crl) 1035 – M. K. Mukherjee, G. T. Nanavati – JJ – Penultimate para (the conviction u/s 148 IPC of one Bhulla Singh who was not armed with any deadly weapon was altered from Section 148 to Section 147 IPC.)
4. Kattintavida Suresh (K.Suresh) v. State of Kerala 2006 (1) KLT 78 = 2005 KHC 1234 – K. Padmanabhan Nair, V. Ramkumar – JJ – Para 27).

NOTES BY THE AUTHOR :- This decision was partly overruled by a Full Bench of the Kerala High Court on another point, namely, regarding the consequence of failure to comply with Section 232 Cr.P.C by a Court of Session. The Full Bench decision is Moidu K. v. State of Kerala 2009 (3) KLT 369 = 2009 Cri.L.J 4045 – S. R. Bannurmath CJ, Kurian Joseph, R. Basant – JJ.

Q.5 Was the sentence of “imprisonment” imposed by the CJM on the accused, “concurrent” or “consecutive”, if everything else done by the CJM was proper?

Ans. The sentence of “imprisonment” imposed by the CJM on the accused is “consecutive”. The rule under Section 31 (1) Cr.P.C is that unless the Court orders the sentence to run “concurrently”, it shall be “consecutive” with the imprisonment to commence one after the expiration of the other.

Q.6 What, if any, are the illegalities committed by the CJM?

Ans. The illegalities committed by the CJM are the following —

(a) The power of the CJM under Section 325 Cr.P.C was not merely to pass a sentence. He had the authority under Section 325 (3) Cr.P.C to recall and re-examine any witness and even take further evidence and then pronounce a judgment of conviction. Thereafter the CJM had the power to pass a sentence according to law.

(b) Since the conviction of A5 for the offence under Section 148 IPC was bad for the reason that he was not armed with any deadly weapon, the sentence passed on him by the CJM is also bad.

(c) While imposing consecutive sentence in cases of conviction for several offences at one trial, the Court has to direct the order in which each sentence of imprisonment shall commence after the expiration of the other as enjoined by Section 31 (1) Cr.P.C. (Vide para 18 (A) of Shibu v. State of Kerala 2010 (4) KHC 62 – V. Ramkumar – J; Para 35 of Muthuramalingam and Others v. State Rep. by Inspector of Police AIR 2016 SC 3340 = (2016) 8 SCC 313 – 5 Judges - T. S. Thakur – CJI, F. M. Ibrahim Kalifulla, A. K. Sikri, S. A. Bobde, R. Banumathi - JJ.)

NOTES BY THE AUTHOR: In paragraph 22 of Achuthan v. State of Kerala 2014 (2) KLT 705 = 2014 Cri.L.J. 3360 – K. T. Sankaran, M. L. Joseph Francis – JJ, it was held that the view taken in Shibu (Supra – 2010 (4) KHC 62) that the sentence of imprisonment for a fixed term should be directed to be suffered first before commencing the term of imprisonment for life, was not agreed to and was held to be not sound. But, after Muthuramalingam (Supra – AIR 2016 SC 3340) by the Constitution Bench the view taken in Achuthan cannot be supported.

(d) The aggregate sentence of imprisonment imposed on each of the accused persons has exceeded 14 years in violation of clause (a) of the proviso to Section 31 (2) Cr.P.C. In the case on hand the aggregate sentence imposed by the CJM on each of the accused comes to 17 years and 3 months.

(e) The “aggregate punishment” imposed on each of the accused has exceeded twice the punishment which the CJM was competent to inflict for a single offence. This is in violation of clause (b) of the proviso to Section 31 (2) Cr.P.C. as per which the CJM could award a maximum imprisonment of 14 years, being twice the sentencing limit of the CJM. The sentencing limit of the CJM as per Section 29 (1) Cr.P.C is 7 years. Here the “aggregate sentence” imposed by the CJM was 17 years and 3 months which is in excess by 3 years and 3 months permissible under clause (b) of the proviso to Section 31 (2) Cr.P.C.

Q.7 Aggrieved by the conviction and sentence, A1 to A5 filed an appeal before the Court of Session under Section 374 (3) Cr.P.C. The Public Prosecutor in charge of the case raised a preliminary objection that the appeal before the Court of Session is not maintainable and that the appeal would lie only to the High Court under Section 374 (2) Cr.P.C. The defense counsel argued that since the accused were sentenced under Section 325 Cr.P.C, the appeal is maintainable before the Court of Session in view of Section 374 (3) (b) Cr.P.C.

Which is the correct forum for appeal if the conviction recorded and sentence passed were by the CJM (assuming that whatever the CJM did was according to law) upon a submission of the proceedings before him under Section 325 (1) Cr.P.C?

Ans. The correct forum for appeal is the High Court and not the Sessions Court. Section 374 (3) (b) Cr.P.C relied on by the defense counsel will not apply because sub-section (3) of Section 374 Cr.P.C. is subject to sub-section (2) of Section 374 Cr.P.C. Even though the highest sentence of imprisonment imposed by the CJM is for 7 years only, as per Section 31 (3) Cr.P.C for the purpose of appeal by a convicted person in a case where the sentence passed has been directed to run consecutively, the “aggregate” of the consecutive sentence should be treated as a single sentence. If so, the sentence of imprisonment for 17 years and 3 months imposed by the CJM is more than 7 years referred to by Section 374 (2) Cr.P.C. Hence, the appeal will lie only to the High Court under Section 374 (2) Cr.P.C. The preliminary objection raised by the Public Prosecutor was, therefore, well founded.