 Good evening friends, as we had promised that we will be bringing the part 2 of section 31 sub clause 2 and sub clause 3 of the CRPC. Those who have missed the first part that is in respect to section 31 sub clause 1 of the CRPC, they can watch us on the Beyond Law CLC channel. And who else can better explain the nitty-gritty of the criminal procedure court and all other different aspects. Though we likely say that Justice Ramkumar says that I will take sessions on the criminal aspects more but his sessions on the bill are also there with us and they are also doing extremely well. It's always eye-opener when Justice Ramkumar takes his sessions. Thank you for accepting our invite. I will straight away ask sir to take over the session. Thank you Mr. Vikas. Good evening friends. We will make a quick recap of last time's session. Today we are going to deal with subsections 2 and 3 of section 31. The other day that is on 24th February, we noticed the application of section 31 subsection 1. So as to conclude, we concluded, we came to 4 conclusions. Number one, in cases involving several offenses at one trial, single trial, unless the court directs that the sentence of imprisonment should run concurrently, that is simultaneously, all such sentences are to run consecutively, that is one after the other. Either the court should direct that sentence that shall run concurrently, then it will not run consecutively. Or if the court is silent about the mode of suffering the sentence, then also the sentence will run consecutively one after the other, cumulatively. Second principle we learned was the mandate of section 31 clause 1 enjoined that in all such cases the court has to direct the order, the order in which each sentence shall commence after the expiration of the other, in plurality of offenses in one single trial. For every, the court has to give it the direction regarding the order in which each sentence shall commence after the expiration of each other sentence, that we noticed the other day. Then third rule was if among the plurality of such offenses, there is a sentence of imprisonment for life imprisonment, where the convict has to undergo the imprisonment till his death entire lifetime. The court cannot direct that the sentences of imprisonment for a fixed term shall run consecutively after the sentence of imprisonment for life, for obvious reasons, because imprisonment for life means for the entire remainder of the biological life of the convict, he has to undergo that sentence. So, you cannot, court cannot say that the imprisonment for fixed term shall be suffered after suffering the imprisonment for life, because he will have to suffer it in the other world after death, which is impossible. Therefore, then the converse is possible, that is, that is the fourth rule we learned, the converse is possible. The court can say that the imprisonment for life shall begin only after suffering the imprisonment for fixed term, there is no problem, fixed term imprisonment shall be suffered first, then the imprisonment for life shall begin. The order of suffering the sentence should be there in the court, that is what section 31, subsection 1 mandates. Now, let us examine subsections 2 and 3 of section 31, subsection 2 I will read. In the case of consecutive sentences, it shall not be necessary for the court by reason only of the aggregate punishment for the several offenses, being in excess of the punishment which it is competent inflict on conviction of a single offense, to send the offender for trial before a higher court. I will explain it in better terms, when we apply the law to the, to a problem. Provided that, clause A, in no case shall such person be sentenced to imprisonment for a longer period than 14 years. Clause B, the aggregate punishment shall not exceed twice the amount of punishment which the court is competent inflict for a single offense. The two clauses for the proviso, then we come to subsection 3 of section 31. 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. Now, let us understand subsections 2 and 3 by discussing an illustration. I am giving you a problem and we will apply the law to this problem. Any law is better understood when applied to actual concrete situations. Now, the problem is this, as members of an unlawful assembly sharing the same common object, accused numbers 1 to 5, five accused, A1 to A5, committed rioting and attacked three prosecution witnesses, PWs 1 to 3, from a public road at 7 p.m. A1 to A4, accused numbers 1 to 4, were armed with iron rods. Fifth man, A5, was having no weapon. During the said rioting, A1 to A4 caused grievous injuries including fractures to all the three prosecution witnesses, PWs 1 to 3, by hitting them with iron rods. A5, who was not armed with any deadly weapon, fisted and kicked PWs 1 and 1 to 3. A1 to A5 were charged by the Chief Judicial Ministry, that is CJM, for offences punishable under section 143, 147, 148, 324, 326, redwood section 149, IPC. 143 being member of an unlawful assembly. 147 is members of the unlawful assembly committing rioting. 148 is members of the unlawful assembly armed with deadly weapons committing rioting. And 324 is voluntarily causing hurt with a dangerous weapon. 326 is voluntarily causing hurt with a dangerous weapon. And 149 is committing all the offences in prosecute of the common object of the unlawful assembly. For that section 149, if there is a separate section for which there can be a sentence also, unlike section 34, something done in furtherance of the common intention. Here 149 itself is a penal offence. Now after trial, the CJM found them guilty of all these offences and passed their sentence as below. 143 section 143 rigorous imprisonment for 3 months and a fine. Section 147 rigorous imprisonment for 1 year and fine. Section 148 rigorous imprisonment for 3 years and fine. Section 324 rigorous imprisonment for 3 years and fine. Section 326 rigorous imprisonment for 7 years and fine. So this is the most grave offence because they were inflicted fractures. Then 149 rigorous imprisonment for 3 years and fine. So total imprisonment is 17 years and 3 months. There was no direction that the sentences shall run concurrently or consecutively. Now we come to the questions. We will discuss 4 questions. Question number 1. Was the sentence of imprisonment imposed by the CJM in this case concurrent or consecutive? You cannot have any doubt. We discussed the other day. It can only be consecutive because there was no direction that the sentences shall run concurrently. Unless the court makes such a direction, every sentence shall be consecutive. That is the rule under 31-1. In fact, if the court is judgment is silent regarding the mode of suffering the sentence, then also the sentence shall be consecutive. That is the rule under section 31. Then the second question is what is the application of section 31-2? Subsection 2 of section 31 CRPC to the present problem. The aggregate of the consecutive sentences imposed by the CJM comes to, as I told you, 17 years and 3 months which is beyond the sentencing limit of the judicial magistrate which is 7 years under section 29-1 of the CRPC. Under section 29-1, the maximum sentence which is judicial magistrate can impose this imprisonment up to 7 years. Now the 17 years and 3 months be much beyond the sentencing limit of the CJM. Now what section 31-2 says is that if because of the, merely because the aggregate of the consecutive sentence imposed is beyond the sentencing limit of the court, it is not necessary for the court to send the accused for trial before a higher court. That is what section 31-2 says. See, when a magistrate of the first class has to try cases, supposing the total sentence which he can impose consecutive aggregate of the total sentence, because his sentencing limit is 3 years. So if the aggregate of the sentence, total sentence imposed exceeds 3 years, then supposing he feels that the magistrate of the first class while trying an offense feels that for example 326, the sentence can go up to imprisonment for life. The magistrate cannot impose that. The maximum limit of the judicial magistrate of the first class is 3 years. So the magistrate will have to think whether the case should be allowed to be tried by a court of session. Supposing during the trial of the case, the magistrate is of the opinion that this case ought to be tried by the court of session. He has a power under the CRPC, section 323 CRPC. He can invoke that power even though none of the offenses is punishable exclusively by a court of session. The magistrate is of the view that the court of session should appropriately try the case. He can invoke the power under section 323 CRPC and commit the case to the court of session. The usual instance of committing cases which are magistral offenses to a court of session is in cases where there are cases and counter cases, cross cases. The main case may be a murder case which may be pending trial before a court of session. The counter case may be a magistral offenses which may be pending trial before a magistrate. So when the magistrate during trial is informed or comes to know that the main case is pending before the court of session, there is a judge made law that both the cases should be tried by same judge. Because what is case and counter case? Case and counter case is the same occurrence. Different versions, conflicting versions of the same occurrence. A party may say that B party was the aggressor. B party may say that A party was the aggressor. So it is only when both the cases are tried by the same judge he can find out which party was the first aggressor and then decide accordingly. That is why this judge made law that both cases should be tried by the same judge. Now the main case is pending trial before the court of session. The counter case is pending before the magistrate because all offenses are magistral offenses. This may be an appropriate case where the magistrate will be justified in invoking his power under section 323. And committing the case to the court of session. So we tried jointly along with the main case. Likewise, 31-2 says if the magistrate is of opinion that the case is because the aggregate sentence is beyond his sentencing limit of 3 years. No, just because the aggregate sentence is beyond his sentencing limit, he need not send the case to a higher court. That is the purpose of this 31-2. Now question 3. What if any are the illegalities committed by the CJM? CJM committed certain illegality. First I will highlight one illegality which we have considered the other day also. A5 who was not armed with any deadly weapon could not have been convicted under section 148, read with section 149. 148 is a section where any member of an unlawful assembly if armed with deadly weapon commits writing or participates in the writing. Here A5 was not armed with any deadly weapon. So even if he participated in the writing by kicking or fisting, he cannot be convicted under section 148 with the illegal section 149. This is the view taken by the courts in certain cases. The first decision I could come across is Inre Muthuswamy Gaundan. Earlier 1942 Madras 420. The author of the judgement is Justice Orville. Then there is a Kerala decision, Vijayan versus state of Kerala. 1959 KLT 704. Justice S. Velu Pillai was the judge who decided that kid. There also one accused who was not armed with deadly weapon was convicted by the lower court. The judge said no, he cannot be convicted under section 149 because he was not armed with any deadly weapon. Then there is a decision of the Supreme Court. Kabul Singh versus state of Punjab. 1995 SCC criminal, page 1035. Kabul Singh versus state of Punjab. 1995 SCC criminal, page 1035. MK Mukherjee and JT Nainavathi, Justice MK Mukherjee is the author of the judgement. There towards the end of the judgement it is held that one particular accused who was not armed with deadly weapon could not have been convicted under section 148. 148 read with section 149. His conviction was converted into one punishable under section 147. The conviction under section 148 was acquitted, dislodged. Then there is a decision of the Kerala decision of which this humble self is the author. That is, Kartin Davida Suresh versus state of Kerala. 2006 one KLT 78. Justice Patmanavandaya and myself were the judges and I am the author of the judgement. There also the earlier decisions were referred to and it was held that a person who is not armed with deadly weapon cannot be convicted under section 148. Secondly, the KLT committed by the CGM in this case is that while imposing consecutive sentence, we already noted the other day under section 31.1. The court has to direct the order in which each sentence of imprisonment shall commence after the expiration of the other as enjoyed by section 31.1 CRPZ. This was not done in this case. The judicial verdicts which mandate this is one SHIBU versus state of Kerala. 2010 4KHKHC Kerala High Court cases paid 62. The other is myself SHIBU versus state of Kerala 2010 4KHC 62. Even though my view was disapproved by a division bench of the Kerala High Court, subsequently a constitution bench of the Supreme Court to concurred with my view, though without referring to my judgement. The constitution bench said that there should be a direction in the judgement itself regarding the order in which each sentence has to commence at the expiration of the other. That the constitution bench decision is Muthuramalingam versus state represented by inspector of police. AIR 2016 Supreme Court page 3340 corresponding to 2016 volume 8 SCC 313, 5 judges. Chief Justice T.S. Thakur is the author of the judgement. The other judges were Justice M. Ibrahim Khalifullah, A.K. Sikri, S.A. Bobde and R. Banu Madhi. No such direction was made in the present case by the CJM. That is the second illegality. Now the third illegality in the judgement of the CJM is the aggregate of the consecutive sentence of the imprisonment of 17 years and 3 months imposed on each of the accused persons has exceeded 14 years. We have already noted in no case shall clause A of the proviso to section 31-2. In no case shall such person be sentenced to imprisonment for a longer period than 14 years. Here the judgement, as per the judgement, the total period is 17 years and 3 months. So clause A of the proviso to section 31-2 CRPC was violated. Then the fourth illegality committed by the CJM is that the aggregate punishment imposed on each of the accused has exceeded twice the punishment which the CJM was competent to inflict. His sentencing limit is only 7 years, as per section 29-1 CRPC. But he could go only up to 14 years, that is twice the sentencing limit of 7 years, 7 plus 7, 14. Instead of that he went up to 17 years and 3 months. So clause B of the proviso to section 31-2 was also violated by the CJM. Now the last question is regarding the appeal. Aggrieved by the conviction entered and sentenced passed by the CJM, A-1 to A-5, all the four A-5 accused, filed an appeal before the court of session under section 374-3 CRPC. The public prosecutor in charge of the case raised a preliminary objection that the appeal before the court of session was not maintainable. And according to him the appeal would lie only to the high court under section 374-2. The appropriate section according to him was 374-2 and not section 374-3. The defense counsel argued that the maximum sentence awarded by the CJM was only 7 years. So he has not exceeded 7 years, 7 years is the maximum sentence for the offense punishable under section 326. For the other offenses only 3 years was given and 3, 143 only 3 months. Therefore the defense counsel argued that the maximum sentence imposed for an offense is only 7 years. He has not exceeded 7 years as provided under section 374-2 CRPC. Hence the according to the defense counsel section 374-2 is not attracted. Now which is the correct form for appeal in this case. Now the correct form for appeal is the high court as contented by the public prosecutor. The case where the sentence of imprisonment passed is to run consecutively then by virtue of subsection 3 of section 31 the aggregate of the consecutive sentences shall be deemed to be one sentence for the purpose of appeal by the convicted person. That is the principle under section 31-3. So when you file the appeal the principle under section 31-3 has to be borne in mind. What section 31-3 says is the aggregate of the consecutive sentences shall be deemed to be one sentence for the purpose of appeal. Therefore in that case 17 years 3 months should be the yardstick applied in which case it is more than 7 years. Hence it is section 374-2 CRPC which is applicable. I will read that section. Any person convicted on a trial by a session judge or an additional session judge or on a trial held by any other court here it is CJM in which a sentence of imprisonment for more than 7 years has been passed against him or against any other person convicted at the same trial may appeal to the high court. And subsection 374-3 applies only when 374-2 has no application. Here 374-2 applies. Therefore 374-3 does not apply. Therefore the appeal before the court session was incompetent as continued by the public prosecutor. This is my take on subsections 2 and 3 of section 31. You have to both the sessions will exhaust section 31 clauses 1, 2 and 3. Thank you. In case there is any doubt, listeners are free to ask. I am just checking it out on the YouTube. No. You experience in such an illustrated manner that people don't have any doubts. Whatever any doubt comes it comes on the, you have seen on the messages on the YouTube message comments. Yes. Thank you sir for sharing it.