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

Even though Section 31 Cr.P.C is a small Section with 3 sub-sections, it has been eluding the comprehension of many in the Bench and the Bar, necessitating some elucidation so that its contours are better understood. I will first deal with Section 31 (1) and thereafter sub-sections (2) and (3) of the said Section.

THE SCOPE OF SECTION 31 (1) Cr.P.C.

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

“31: 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.

This provision can be better explained by means of a concrete situation happening in a Court.

PROBLEM

The prosecution version in a case is as follows:-

“Accused Nos: 1 to 5 (A1 to A5) formed an “unlawful assembly”, for committing “rioting” armed with deadly weapons like chopper, sword, iron rod, knives etc. In prosecution of the “common object” of the said unlawful assembly, A1 to A5 attacked one Rajesh and his friend Johnson at about 7 pm from a public road. Rajesh died as a result of sustaining fatal injuries at the hands of A1 to A5 who also inflicted injuries including “grievous hurt” on Johnson. The Police registered an FIR and conducted investigation after which A1 to A5 were charge sheeted for offences punishable under –

S.143 IPC (for being members of an “unlawful assembly”)

S.147 IPC (for committing rioting)

S.148 IPC (for committing rioting armed with deadly weapons)

S.326 IPC (for voluntarily causing grievous hurt with dangerous weapons)

S.302 IPC (for committing murder of Rajesh)

S.149 IPC (for committing the above offences as members of an unlawful assembly)

The Sessions Judge who tried A1 to A5 for the aforesaid offences convicted them of those offences. Each of the accused was sentenced to “rigorous imprisonment” (R I) and “fine” as follows –

S.143 IPC R I for 3 months + fine

S.147 IPC R I for 1 year + fine

S.148 IPC R I for 3 years + fine

S.326 IPC R I for 7 years + fine

S.302 IPC R I for life + fine

S.149 IPC R I for 3 years + fine

Judgment is silent as to whether the sentences of “imprisonment” should be suffered “concurrently” or “consecutively”.

Let us now discuss a few questions.

Q.1 What is the meaning of “concurrent sentence” and “consecutive sentence” ?

Ans. “Concurrent sentence” means that the sentence of imprisonment awarded to the accused for more than one offence are to run concurrently i.e. simultaneously and not one after the other.

“Consecutive sentence” means the sentence of imprisonment for fixed term awarded to the accused for more than one offence will have to be suffered “consecutively” i.e. one after the other. In other words, the sentence of imprisonment for fixed term imposed for one offence will commence only after the expiration of the sentence of imprisonment for fixed term imposed for another offence.

“Consecutive sentence” is also called “cumulative sentence”.

The rule under Section 31 (1) Cr.P.C. is that unless the Court directs that the sentences of imprisonment shall run “concurrently”, they shall always be consecutive. In other words, if the judgment is silent regarding the mode of undergoing the sentence of imprisonment, it shall always be consecutive, to be undergone one after the other.

Q.2 In the present case was the sentence of imprisonment awarded to A1 to A5, “consecutive” or “concurrent” or “neither of them” ?

Ans. It was “consecutive'. Since the judgment was silent in this regard it should be presumed that the Sessions Judge did not direct the sentences to run concurrently.

Q.3 If the sentence of imprisonment awarded in this case is to be treated as “consecutive”, what is the order in which each sentence is to be undergone by the accused?

Ans. This was not indicated in the Judgment. The last portion of Section 31 (1) Cr.P.C. reads as follows –

“such punishments when consisting of imprisonment, to commence the one after the expiration of the other in such order as the Court may direct.”

Every Court imposing sentences of imprisonment making them consecutive, should give a direction regarding the order in which each sentence has to commence after the expiration of the other. (Vide para 18 (A) of Shibu v. State of Kerala 2010 (4) KHC 62 – V. Ramkumar – J; Para 35 of Muthuramalingam 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).

Q.4 Supposing there was a direction in the judgment that the sentences of imprisonment awarded to A1 to A5 shall run “consecutively” after each of the accused first undergoing the sentence of life imprisonment, would there be any illegality in such a direction ?

Ans. Yes. Such a direction will be illegal and impermissible. This is because, a sentence of “imprisonment for life” means imprisonment for the whole of the remaining period of the natural or biological life of the convict and not for 14 years or 20 years. (Vide Gopal Vinayak Godse v. State of Maharashtra AIR 1961 SC 600 – 5 Judges – P. B. Gajendragadkar, A. K. Sarkar, K. Subba Rao, K. N. Wanchoo, J. R. Mudholkar – JJ (Kishori Lal v. King Emperor AIR 1945 PC 64 – Lord Goddard, followed); Para 48 of Bikis Yakub Rasool v. Union of India 2024 SCC OnLine SC 25 = 2024 KHC 6020 - B. V. Nagarathna, Ujjal Bhuyan – JJ.)

If the Court were to direct that the sentences of imprisonment for fixed term shall be undergone by the convict only after undergoing the life sentence, the convict may have to undergo the sentences of imprisonment for fixed term after his death which is physically impossible.

But the converse is permissible. The Court can say that the sentence of imprisonment for life will commence only after the expiration of the sentences of imprisonment for fixed term. (Vide Shibu v. State of Kerala 2010 (4) KHC 62 – V. Ramkumar – J; Muthuramalingam 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).

THE SCOPE OF SECTION 31 (2) & (3) Cr.P.C

Now let us examine the application of sub-sections (2) and (3) of Section 31 Cr.P.C. The said sub-sections are extracted herebelow:-

“31: Sentence in cases of conviction of several offences at one trial –

(1) ……Skipped………

(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”.

Sub-sections (2) and (3) can be better elucidated by discussing an illustration as given below:-

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 to A4 were armed with iron rods. A5 was having no weapon. During the said rioting A1 to A4 caused grievous injuries including fractures to PWs 1 to 3 by hitting them with iron rods. A5 fisted and kicked PWs 1 to 3.

A1 to A5 were charged by a Chief Judicial Magistrate (CJM) for offences punishable under Sections 143, 147, 148, 324 and 326 read with Section 149 IPC. After trial, the CJM found all the 5 accused persons guilty of all the offences they were charged with. The CJM accordingly passed a sentence as follows:-

Rank of the accused	Offences of which each of the accused convicted	Sentence passed by the CJM against each of the accused
A1 to A5	143 – Being member of an unlawful assembly	R.I. for 3 months + fine
-do-	147 – Rioting by an unlawful assembly	R.I. for 1 year + fine
-do-	148 – Rioting armed with deadly weapons	R.I. for 3 years + fine
-do-	324 – Voluntarily causing hurt with weapons	R.I. for 3 years + fine
-do-	326 – Grievous hurt with dangerous weapons	R.I. for 7 years + fine
-do-	149 – The above offences committed by an unlawful assembly	R.I. for 3 years + fine

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

NOW THE QUESTIONS

Q.1 Was the sentence of “imprisonment” imposed by the CJM “concurrent” or “consecutive”?

Ans. It is “consecutive” since there was no direction by the CJM that the sentences shall run “concurrently”.

Q.2 What is the application of Section 31 (2) Cr.P.C to the present problem?

Ans. The aggregate of the consecutive sentences imposed by the CJM comes to 17 years and 3 months which is beyond the sentencing limit of 7 years for the CJM fixed under Section 29 (1) Cr.P.C. What Section 31 (2) says is that merely because the aggregate of the consecutive sentences imposed is beyond the sentencing limit of the Court, it is not necessary to send the accused for trial before a higher Court. Here, even though the aggregate of the consecutive sentences of 17 years and 3 months imposed by the CJM is beyond 7 years, that is no reason why the case should be sent to a Court of Session for trial by invoking the power under Section 323 Cr.P.C.

Q.3 What, if any, are the illegalities committed by the CJM?

Ans.

a) A5 who was not armed with any deadly weapon could not have been convicted of Section 148 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.

3) Picharu Bhati v. State of Orissa 1964 (1) Cri.L.J. 117 - R.K.Das, G.K.Misra – JJ.

4) In re. P. Abdul Sattar AIR 1961 Mys. 57.

5) Kabul Singh v. State of Punjab 1995 SCC (Crl) 1035 - M.K Mukherjee, G.T Nanavati – JJ.

6) Kanttindavada Suresh v. State of Kerala 2006 (1) KLT 78 = 2005 KHC 1234 – K. Padmanabhan Nair, V. Ramkumar – JJ – Para 27.

b) While imposing consecutive sentence 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.)

No such direction was made in this case by the CJM.

c) The aggregate of the consecutive sentence of imprisonment of 17 years and 3 months 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.

d) 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. The sentencing limit of the CJM, as per Section 29 (1) Cr.P.C is 7 years. In view of clause (b) of the proviso to Section 31 (2) Cr.P.C, the consecutive sentence of imprisonment could go only upto 14 years. Here it has gone upto 17 years and 3 months. This is in violation of clause (b) of the proviso to Section 31 (2) Cr.P.C.

Q.4 Aggrieved by the conviction entered and sentence passed by the CJM, 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 was 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 the maximum sentence awarded by the CJM was only 7 years (i.e. not more than 7 years). Hence Section 374 (2) is not attracted and what is attracted is Section 374 (3) Cr.P.C.

Which is the correct forum for appeal in this case?

Ans. The correct forum for appeal is the High Court as contended by the Public Prosecutor. In a case where the sentence of imprisonment passed is to run “consecutively”, then by virtue of Section 31 (3) Cr.P.C the aggregate of the consecutive sentences shall be deemed to be one sentence for the purpose of appeal by the convicted person. If so, the aggregate sentence in the present case is 17 years and 3 months which is more than 7 years. Hence, it is Section 374 (2) Cr.P.C which will apply. If the aggregate of the consecutive sentences was below 7 years, then it would fall under Section 374 (3) Cr.P.C in which case the appeal would lie before the Court of Session. But here since the aggregate of the consecutive sentence is 17 years and 3 months which is far above 7 years, the appeal will lie only to the High Court. The Sessions Judge will have to return the appeal for presentation before the High Court. This is an instance of application of Section 31 (3) Cr.P.C.

Q.5 Are clauses (a) and (b) of the proviso to Section 31 (2) Cr.P.C applicable to an Assistant Sessions Judge?

Ans. Yes. Where several offences are tried at one trial by an Assistant Sessions Judge, the aggregate punishment of imprisonment in the case of consecutive sentences cannot exceed 14 years in violation of clause (a) of the proviso to Section 31 (2) Cr.P.C.

Since the sentencing limit of the Assistant Sessions Judge is as per Section 28 (3) Cr.P.C is 10 years, the aggregate punishment of the consecutive sentences should not exceed twice the sentencing limit of the Assistant Sessions Judge in violation of clause (b) of the proviso to Section 31 (2) Cr.P.C. In other words, The aggregate punishment should not exceed 20 years.

Q.6 Are clauses (a) and (b) of the proviso to Section 31 (2) Cr.P.C applicable to a Court of Session?

Ans. Clause (a) will be applicable provided there is no sentence of imprisonment for life.

Clause (b) of the proviso has no application since there is no sentencing limit fixed for a Court of Session with regard to the punishment of imprisonment.