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 hereTHE 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:- 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 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 – In Re. Muthusami Goundan AIR 1942 Mad. 420 – Horwill – J;Vijayan v. State of Kerala 1959 KLT 704 – S. Velu Pillai – J – Para 10;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.)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 ...

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]

Justice V Ramkumar

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