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2008 Supreme(AP) 236
IN THE HIGH COURT OF JUDICATURE, KERALAATERNAKULAM
R. BASANT, J.
C. Ganga - Appellant
Vs.
Lakshmi Ammal and another - Respondent
Cri. Rev. Petn. No. 15 of 2008
Decided on 31-3-2008.
Mr. V. Sethunath, for the Petitioner.
M/s. Gikku Jacob, P.P. Munnu Vilsan and Jawahar Jose (Amicus Curiae), for the Respondents.
Headnote:
Code of Criminal Procedure – Section 431, 125(3), 30, 358, 359, 357 (3) – Muslim Women (Protection of Rights on Divorce) Act – Section 3(4) – Indian Penal Code – Section 53, 64 to 70 – General Clauses Act – Section 25 – Negotiable Instruments Act – Section 138 – Constitution of India – Article 141 – culpable penal offence – culpable indiscretion – compensation – imprisonment – Section 357(3),Cr.P.C. and Section 431, it is evident that amount of compensation directed to be paid under Section 357(3), Cr.P.C. though not a fine will have to be recovered as if it were a fine – Non fine is deemed to be a fine for purpose of recovery under Section 431 , Cr.P.C – An amount of compensation ordered is no fine; but law mandates in Section 431 that Courts must recover same by deeming it to be a fine as if it were a fine – That is mandate of Section 431, Cr.P.C – Held, Merely because Sections 64 to 70 I.P.C and Section 30 Cr.P.C permits and enables imposition of a default sentence, it is not invariable that such a default sentence ought to be imposed in all cases – But Court must hasten to add that ordinarily and normally, and in the absence of exceptional and compelling reasons, no court should issue a toothless direction under Section 357(3) Cr.P.C – That option not to impose a default sentence must be invoked only in exceptional cases and in the teeth of compelling reasons – Short further time may be granted to petitioner to raise compensation amount, pay same and avoid default sentence – Proceedings were initiated as early as –Court do not find much merit in prayer for any further time for making payment but however, Court is satisfied that there can be a direction that sentence shall not be executed – On or before that date, petitioner shall appear before learned Magistrate for execution of sentence – Revision Petition Dismissed
Are the criminal Courts jurisdictionally competent to impose a sentence of imprisonment in default of a direction to pay compensation under Section 357(3), Cr.P.C.? What is the correct law on the point? Is the law declared in Harikrishnan and State of Haryana v. Sukhbir Singh1 reiterated unambiguously in Suganthi Suresh Kumar v. Jagdeeshan2 in anyway altered by the subsequent decision of the Supreme Court in Ettappadan Ahmmedkutty alias Kunhappu v. E.P. Abdullakoya alias Kunhi Bappu3? Will it now be lawful for the Magistrates to impose such a default sentence?
2. The question appears to be a vexing one and it appears that there is absolute confusion in the subordinate judiciary about the correct law that ought to be followed. I deem it my duty to help the subordinate judiciary to ascertain the ~w with clarity. Such confusion cannot be f)ermitted to continue. The question came up for consideration in many cases and all counsel who wanted to advance arguments were permitted to advance such arguments before me in this case on that aspect. All of them have been heard and permitted to assist this Court. Two young counsel for this Court, Sri Jawahar Jose and Sri. C.v. Manu Vilsan were also requested to look up the matter in detail and assist the Court as amicus curiae. They have certainly done justice to the assignment given to them by this Court and I place on record my appreciation for the work done by them.
3. There can be no doubt whatsoever that a direction for payment of compensation to the victim can be issued by a Magistrate under Section 357(3), Cr.P.C. It is also well settled by now that such a direction can be issued for payment of amounts beyond the maximum fin~ which a Magistrate can impose under Section 29 of the Cr.P.C. The last trace of doubt, if any, on this aspect is laid to rest by the decision in Bhaskaran v. Balan4. The Supreme Court observes so in paragraphs 30 and 31 of the said decision.
"30. It is true, if a Judicial Magistrate of First Class were to order compensation to be paid to the complainant from out of the fine realized the complainant will be the loser when the cheque amount exceeded the said limit. In such a case a complainant would get only the maximum amount of rupees five thousand.
31. However, the Magistrate is such cases can alleviate the grievance of the complainant by making resort to Section 357(3) of the Code. It is well to remember that this Court has emphasized the need for making liberal use of that provision. Hari Krishnan and State of Haryana v. Sukhhir Singh: 1988 (3) JT (SC) 111 : 1989 Cri.L.J. 116. No limit is mentioned in the sub-section and therefore, a Magistr2te can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of Magistrate of first class in respect of a cheque which covers an amount exceeding Rs. 5,000/- the Court has power to award compensation to be paid to the complainant."
4. The next question is whether a default sentence can be imposed for failure to comply with the direction under Section 357 (3), Cr.P. C. I shall first try to analyse the provisions of Code to ascertain whether such a power is available to the Court. I shall proceed to consider precedents on the point later.
5. I must readily confess that I have not been able to place my finger on any provisions of the Code which specifically declares that such a default sentence can be imposed. Section 357(3), Cr.P.C. only directs that 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 persons have been so sentenced. Significantly, Section 357(3), Cr.P.C. does not speak of the manner
