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SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, HEMANT GUPTA, JJ.
Dharmesh @ Dharmendra @ Dhamo Jagdishbhai @ Jagabhai Bhagubhai Ratadia and Another – Appellants
Versus
The State of Gujarat – Respondent
Criminal Appeal No. 432 of 2021, SLP (Crl) No. 673 of 2021
Decided On : 07-07-2021
(A) Criminal Procedure Code, 1973 – Section 439 read with Sections 235(2), 250 and 357 – Grant of bail – Imposition of condition for payment of compensation for grant of bail – Court must take into account nature of crime, injury suffered, justness of claim, capacity to pay and other relevant circumstances in fixing amount of fine or compensation – These aspects would be considered only after giving an opportunity to person convicted to hear him out on these aspects and that would naturally be post conviction – In cases of offences against body, compensation to victim should be a methodology for redemption – Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started – Such compensation can hardly be determined at stage of grant of bail – There are cases of offences against property or otherwise but that cannot be a compensation to be deposited and disbursed as if that grant has to take place as a condition of person being enlarged on bail – Direction contained in impugned order for deposit of compensation of Rs.2.00 lakh for the legal heirs of deceased naturally cannot be sustained and has to be logically set aside. (Paras 12, 16, 17 and 18)
(B) Criminal Procedure Code, 1973 – Section 439 – Grant of bail – Murder and other charges – It was a case of free fight between two groups where each alleges other to be aggressor – Other accused had been granted bail without imposing such condition – Bail granted to appellants on same terms and conditions. (Paras 20 and 22)
Facts of the case:
An unfortunate incident took place on 10.11.2019, which is alleged by the complainant to be caused by certain members of his caste providing assistance to the police which resulted in a free fight where the appellants herein were also present. Two persons succumbed to their injuries and an FIR was registered on 11.11.2019 with the Amreli Police Station against 13 persons, being CR No.I-94 of 2019 under Sections 302, 307, 324, 323, 506(2), 504, 143, 144, 147, 148, 149, 120B and 34 of the IPC as well as Section 135(ii) of the Gujarat Police Act. In pursuance of the investigations charge-sheet was filed in the Court. A counter FIR was also filed on 11.11.2019, being I-95/2019 against the complainant and other witnesses under Sections 324, 323, 504, 506(2), 143, 144, 147, 148 and 149 of the IPC as well as Section 135(ii) of the Gujarat Police Act. Appellants were arrayed as Accused Nos.12 & 13 and were arrested on 11.11.2019. Upon applying for bail, in terms of the impugned judgment dated 15.12.2020, bail was granted to them. However, they are aggrieved by the condition imposed on them for bail, requiring them to deposit Rs.2.00 lakh each as compensation to the victims before trial court within a period of three months. The narrow compass of the arguments rests on absence of any provision in the Code of Criminal Procedure, 1973 entitling Court to impose such a condition for payment of compensation for grant of bail.
Findings of Court:
In cases of offences against body, compensation to the victim should be a methodology for redemption. Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started. Such a compensation can hardly be determined at the stage of grant of bail.
Result : Appeal allowed.
JUDGMENT :
SANJAY KISHAN KAUL, J.
1. An unfortunate incident took place on 10.11.2019, which is alleged by the complainant to be caused by certain members of his caste providing assistance to the police which resulted in a free fight where the appellants herein were also present. Two persons succumbed to their injuries and an FIR was registered on 11.11.2019 with the Amreli Police Station against 13 persons, being CR No. I-94 of 2019 under Sections 302, 307, 324, 323, 506(2), 504, 143, 144, 147, 148, 149, 120B and 34 of the IPC as well as Section 135(ii) of the Gujarat Police Act. In pursuance of the investigations charge-sheet was filed in the Court. A counter FIR was also filed on 11.11.2019, being I-95/2019 against the complainant and other witnesses under Sections 324, 323, 504, 506(2), 143, 144, 147, 148 and 149 of the IPC as well as Section 135(ii) of the Gujarat Police Act.
2. The appellants before us were arrayed as Accused Nos. 12 and 13 and were arrested on 11.11.2019. Upon applying for bail, in terms of the impugned judgment dated 15.12.2020, bail was granted to them. However, they are aggrieved by the condition imposed on them for bail, requiring them to deposit Rs. 2.00 lakh each as compensation to the victims before the learned trial court within a period of three months.
3. The narrow compass of the arguments before us rests on the absence of any provision in the Code of Criminal Procedure, 1908 (hereinafter referred to as the Cr.P.C.) entitling the Court to impose such a condition for payment of compensation for grant of bail. It is the submission of the learned counsel for the appellants that the High Court imposed this condition for bail in view of the “amended provisions” relating to victim compensation without referring to any specific provision.
4. Learned counsel for the appellants took us through different provisions dealing with the aspect of compensation under the Cr.P.C.
5. In respect of the aforesaid, the first provisions referred to was Section 357, which reads as under:
“357. Order to pay compensation:
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied:
(a) in defraying the expenses properly incurred in the prosecution.
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court.
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death.
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High C
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