The Mechanics and Philosophy of Section 31 Cr.P.C. and the questionable stare decisis in cases of life imprisonment

It is the utter confusion prevailing on the interpretation of Section 31 of the Code of Criminal Procedure, 1973 ( “Cr.P.C.” for short} which has impelled the author to pen this article in the fond  hope that  an authoritative pronouncement on the issue by a larger Bench of  the Hon’ble Supreme Court of India may forge a quietus to the uncertainty haunting the sentencing discretion of the higher judiciary

2.  Section 31 Cr.P.C. reads as follows:-

“ Sentence in cases of conviction of several offences at one trial.-

(1)  When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several  punishments, prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment  to commence the one after the expiration of the other in such order as the Court may direct, unless  the Court directs that such punishments shall run concurrently.

(2)    In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment  for  the several offences being in excess of the punishment  which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court.

Provided that –

(a)  In no case shall such person be sentenced to imprisonment for a longer period than fourteen years.

(b) The aggregate punishment shall not exceed twice the amount of punishment which the Court  is competent to inflict for a single offence.

(3) For the purpose  of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.

We will first take up for discussion Section 31(1) Cr.P.C.

A  close examination of  sub-section (1) of Section 31 will reveal that for the said sub-section  to apply the following situations should co-exist:-

i).            A person is convicted of two or more offences  at one trial, and

ii)            The prescribed punishments which the Court is competent to inflict, consist of imprisonment.

If the aforesaid conditions are present, then the Court may sentence him to imprisonment for such offences and each of such sentence of imprisonment shall commence after the  expiration of the other in such order as the Court may direct, unless the Court directs that the punishments shall run concurrently.  Thus, the normal rule in such cases is that the sentences of imprisonment will run consecutively i.e. one after the other  unless the Court directs that they shall run concurrently i.e. simultaneously.  So, in a case where the Court imposes sentences of imprisonment for the conviction of two or more offences at the same trial, and omits to mention whether they will run consecutively or concurrently , the sentences will run consecutively i.e. one after the other by the force of  the provision itself.  In other words, it is only when the Court wants the sentences to run concurrently, should the Court direct that the sentences shall run concurrently.  In the absence of such  a direction,  the sentences will automatically run consecutively i.e. one after the other.   Now after the decision of the Apex Court in Kamalanantha Vs. State of T.N. – (2005) 5 SCC 194 = AIR 2005 SC 2132,  the expression “imprisonment” in Section 31 Cr.P.C. includes imprisonment for life as well.  One important aspect to be borne in mind by the sentencing Court is that where the sentences of imprisonment are allowed to run consecutively either due to the omission on the part of the Court to direct so or due to an express direction that the sentences shall run consecutively, the duty of the Court does not end there.  Section 31(1) enjoins a further direction by the Court to specify the order in which one particular sentence shall commence after the expiration of the other.  The real problem arises only when  one or more sentences of  imprisonment for life along with sentences of imprisonment for a term are imposed at the same trial.  If in such cases the sentencing Court, after deciding expressly or impliedly that the sentences shall run consecutively, omits to direct the order in which each sentence shall commence at the expiration of the other, or issues a wrong direction, it can lead to a chaotic situation and can even result in a patent illegality.  To give an illustration, a Court of Session convicts a person to offences punishable under Sections 302, 365 and 326 IPC and sentences him to imprisonment for life, rigorous imprisonment for 5 years and fine and rigorous imprisonment  for 3 years and fine respectively for those offences.  If the Court does not direct that the sentences shall run consecutively, then the sentences will run consecutively by the operation of Section 31(1) Cr P.C.  In such a case, the Court will have to further direct that the sentence of imprisonment for life will commence only after the expiration of the sentences of imprisonment for the fixed terms.  Supposing the Courts were to direct that the sentences of imprisonment for fixed terms shall commence only after the expiration of the sentence of imprisonment for life, then it will be patently illegal.  This is because, the sentence of imprisonment for life is for the whole remainder of the biological life of the convict. (Vide Gopal Vinayak Godse Vs. State of  Maharashtra ;  Sambhaji Vs. State of Maharashtra – (1974) 1 SCC 196 = AIR 1974 SC 147; State of M.P. Vs. Rathan Singh;

Dalbir Singh Vs. State of Punjab; Maru Ram Vs. Union of India ; Ranjith Singh Vs. Union Territory of Chandigarh ; Laxman Naskar Vs. State of W.B. ; Subhash Chander Vs. Krishan Lal ; Shri Bhgwan Vs. State of Rajasthan ; Mohd Munna Vs. Union of India ; Sangeet and Another Vs. State of Haryana. Hence, there is no question of the convict first undergoing the sentence of imprisonment  for life and thereafter undergoing the rest of the sentences of imprisonment for fixed term.  In Shibu and Another Vs.  State of Kerala the author, in his capacity as a Judge of the High Court of Kerala  had cautioned all Sessions Judges to be extremely careful while ordering consecutive sentences.   Unfortunately, there are instances when the Supreme Court of India, unmindful of the consequences,  had blindly applied Section  31(1) Cr.P.C. without realising that its direction for consecutive sentence was unworkable and , therefore, illegal.  In Ravindra Trimbak  Chouthmal Vs. State of Maharashtra, the sentence of death penalty awarded for dowry death was commuted by the Supreme Court to imprisonment for life.  But considering the loathsome, revolting and dreaded device used by the accused to cause disappearance of evidence, the  other sentence of rigorous imprisonment for 7 years awarded under Section 201 IPC was directed to run consecutively after  the sentence of life imprisonment had run its course.  This means that the convict would have to undergo the latter part of the sentence after his death !  In Ronny Vs. State of Maharashtra. the accused stood convicted for committing murder (of all the three inmates of the family), gang rape and robbery.  In further appeal, the Supreme Court commuted the death sentence under Section 302 IPC to one of imprisonment for life and directed  that the said sentence shall run concurrently with the sentence of imprisonment for robbery.   The Apex Court further directed that the sentence of imprisonment for gang rape under Section 376(2) (g) IPC shall run consecutively after the accused had served the sentences for the other offences which included the sentence of imprisonment for life.  The fact that such a direction was unworkable escaped the attention of the Supreme Court.  In Sanaullah Khan Vs. State of Bihar  the sentence of death awarded concurrently  by the Sessions Court and the High Court for the triple murders committed by the appellant, was commuted by the Supreme Court into imprisonment for life for each of the murders and then by applying Section 31(1) Cr.P.C. , the sentences of imprisonment for life were directed to run consecutively without realising that the last two sentences of life imprisonment will have to be served by the accused from the netherworld after his life on earth.

Section 31(2) Cr.P.C.

3. Let us  now analyse sub-section (2) of Section 31 Cr.P.C.   A careful reading of  the Section will show that the said sub-section applies only in a case where consecutive sentence is passed and that too by a Court of limited sentencing jurisdiction.   The provision says that  if the aggregate punishment for the several offences directed to be suffered consecutively, is in excess of the punishment which the Court is competent to inflict on conviction of a single offence, then it shall not be necessary for the Court to have recourse to Section 325 Cr.P.C.  (Since Section 325 Cr.P.C. occurs in Chapter XXIV Cr.P.C. dealing with General Provisions as to Inquiries and Trials, it has been held that this power can be exercised by Assistant Sessions Judges also.  See Ahamed Koya Vs. State   1991(1) KLT 332).    A perusal of Sections 28 and 29 Cr.P.C.  will reveal that unlike a Chief Judicial Magistrate and Judicial Magistrate of the First or Second Class, the High Court, Sessions Judge and Additional Sessions Judge have unlimited sentencing power and they can pass any sentence authorised by law.  Thus, sub-section (2) of Section 31 Cr.P.C. has no application to the High Court, Sessions Judge and Additional Sessions Judge.  If so, the proviso thereto consisting of clauses (a) and (b) thereof also cannot obviously apply to the High Court, Sessions Judge or Additional Sessions Judge.  In other words, the 14 year limit prescribed under clause (a) of the proviso to Section 31(2) Cr.P.C. applies only to a case of consecutive sentence imposed by courts of limited sentencing jurisdiction like the Magistrate Courts and Assistant Sessions Court but not to the High Court or a Court of Sessions Judge or an Additional Sessions Judge which are courts having unlimited sentencing power.  However, the Supreme Court of India has applied the said proviso to trials held by Sessions Judges and  Additional Sessions Judges.  In Chatar Singh Vs. State of M.P, the trial was by a Sessions Judge and there were 2 convictions for the offence under Section 364 IPC besides other offences.  The total period of consecutive sentence ordered by the trial court was 40 years.  On appeal, the High Court limited the consecutive sentence only to the two convictions under Section 364 IPC thus reducing the total period of sentence to 20 years.  The Supreme Court, relying on proviso (a) to section 31(2) Cr.P.C. criticised the trial Judge and the High Court for passing a sentence exceeding 14 years and directed that the 12 years incarceration already undergone by the convict would be sufficient .  For taking the above view the Supreme Court relied on a Division Bench ruling of the Allahabad High Court in Zulfiqar Ali and Another  Vs. State of U.P. – 1988(3) Crimes 199 wherein also the trial was conducted by an Additional Sessions Judge and the High Court also had committed the same illegality  of relying on the proviso to Section  31(2) Cr.P.C. Ramesh Chilwal alias Mambayya Vs. State of Uttarkhand is another case where the trial was conducted by a Sessions Judge.  In further appeal to the Supreme Court, the Apex Court clarified that since the trial Judge had awarded a sentence of imprisonment for life, the consecutive sentence ordered by the courts below cannot be justified and directed the sentences to run concurrently in view of Section 31 Cr.PC.  The Supreme Court was obviously having in mind clause (a) of the proviso to Section 31(2) Cr.PC which, for the reasons already stated, was inapplicable to that case.  Recently, on 01-07-2014 the Apex Court in Duryodhan Rout v/s State of Orissa has once again fallen into the very same error in applying the proviso to Section 31(2) Cr.PC in relation to a trial conducted by a Sessions Judge.  In paragraph 27 of the Judgment the Apex Court has laid down as a proposition of law that in case a person is convicted of several offences and the sentences of imprisonment includes one of imprisonment for life, the proviso to Section 31(2) Cr.PC will come into play and no consecutive sentence can be imposed.  The above proposition is in direct conflict with Section 31(1) Cr.PC.  Noting that the aggregate of the consecutive sentences imposed by the courts below exceeded 14 years, the Apex Court in that case directed that the sentences imposed should run concurrently and not consecutively.

4. A Division Bench of the High Court of Kerala in Achuthan v/s State of Kerala disapproved the direction issued by the trial court (Sessions Judge) that the sentences of imprisonment for life under Section 302 IPC and imprisonment for 5 years under Section 449 IPC shall run consecutively in the event of commutation of the sentence of imprisonment for life.  The Division Bench was of the view that the question of commutation of the sentence is not a matter to be taken note of by the Court at the time of passing the sentence and accordingly directed that the sentences imposed in that case shall run concurrently.  The above view so broadly stated may not be fully correct at least in the realm of  “set off “under Section 428 Cr.PC, after the verdict of the Constitution Bench of the Supreme Court in Bhagirath v/s Delhi Administration.  If on the facts of the case the accused really deserved a consecutive sentence then the proper course would have been to direct that the sentence of imprisonment for life shall commence only after  the expiration of the other sentence for imprisonment  for a term than altering the sentence to concurrent sentence. One aspect to be borne in mind in this context is that a sentence of imprisonment for life which operates till the death of the convict, gets reduced to imprisonment for a fixed term only as and when the life sentence is commuted for imprisonment for a term under Section 433 (b) Cr.PC or when premature release is ordered under Section 432 Cr.PC.  The President of India and the Governor of the State can also exercise such powers under Articles 72 and 161 of the Constitution of India.  Hence, the author is of the humble view that it will not be illegal for a Sessions Judge to direct that the sentence of imprisonment for a fixed term shall commence only after the expiration of the sentence of imprisonment for life, as and when the sentence of imprisonment for life is either commuted or remitted.  But then, it may not be advisable to postpone the mode of serving the imprisonment for a fixed term until the happening of the commutation or remission of the imprisonment for life.  Keeping the convict in a state of suspense may not be an expedient course of action.  But, the point which calls for emphasis at this juncture is the obligation of the sentencing Judge to direct the sequential  order of commencement and expiration of the sentences of imprisonment while directing consecutive sentence.

5. Yet another aspect which has been overlooked in the aforesaid decisions is that in its anxiety to stick to the 14 year rule of sentence prescribed by clause (a) of the proviso to Section 31(2) Cr.PC, the Apex Court overlooked the fact that the 14 year rule would stand breached even if concurrent sentence is ordered in those cases where the life convict survives for more than 14 years.  When under Section 31(1) it is permissible for a Sessions Judge to order consecutive sentence of a sentence of imprisonment for a term with a sentence of life imprisonment, the said power cannot be taken away or defeated by placing  reliance on Section 31(2) or its proviso which have no application to a case of trial before a Sessions Judge or Additional Sessions Judge.

 Hence, with due respect, I may venture to opine that it is impermissible to direct under Section 31(1) Cr.PC that a sentence of imprisonment for a fixed term shall commence after the expiration of a sentence for imprisonment for life awarded at the same trial, although the converse is permissible.  Likewise, the 14 years rule contained in clause (a) of  the proviso to Section 31(2) Cr.PC cannot be applied in relation to a trial by a Sessions Judge or Additional Sessions Judge.

Justice V Ram kumar is a retired Judge of the High Court of Kerala.