(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)

A peculiar situation has arisen. In a sessions trial five persons were found guilty under section 307/149 of the Indian Penal Code and other sections thereof including section 27 of the Arms Act. They were convicted and taken into custody. They were then sentenced on 28.8.2007, inter alia, for life imprisonment and they were further directed to pay a fine of Rs.20,000/- each for offences under Sections 307/149 of the Indian Penal Code and further Rs.2,000/- each for the offence under section 27 of the Arms Act.

2. Two appeals were filed. Criminal Appeal(DB) No.1159 of 2007 was filed by Basudeo Mandal and Dinesh Mandal. In the said appeal initially prayer for bail was rejected. Thereafter, it appears that the present appeal, i.e., Criminal Appeal(DB) No.1340 of 2007 was filed on behalf of Bharat Mandal, Kishori Mandal and Upendra Mandal. In this appeal by order dated 4.1.2008 these three appellants were granted bail but no order was passed in regard to the fine as imposed. These three appellants having got bail, in the earlier appeal, an application was filed for grant of bail. That was considered by order dated 22.5.2008 in Criminal Appeal(DB) no.1159 of 2007. Considering those three persons in the connected case have been granted bail, these two persons were also granted bail but when the question of stay of realization of fine came, Court noted that accused persons had assaulted the informant in such a manner that he had lost vision in both the eyes and keeping in view the aforesaid heavy fine was imposed. In those special circumstances, Court declined to stay the payment of fine as imposed by the trial court.

3. As noted earlier in this appeal there was no order with regard to the fine though the three appellants were granted bail. It appears that interlocutory application was filed for stay of fine. By order dated 18.1.2011 passed in the present case, i.e., Criminal Appeal (DB) No.1340 of 2007 a Division Bench of this Court noticing that earlier though bail was granted but no order regarding fine was noted directed stay of realization of fine till disposal of the appeal. It appears that the order refusing to stay of fine as passed in the analogous appeal was not brought to the notice of the Court. Thus, in relation to the same matter arising from the same judgment we have two orders in respect of two sets of appeals. In one appeal stay of realization of fine has been specifically refused and in the present analogous appeal realization of fine has been stayed till disposal of the appeal.

4. Now on behalf of the victim a prayer is made that the order for stay of realization of fine be recalled to be made consistent with the earlier order passed in the analogous appeal. It is said that this fine is by way of compensation for loss of vision and should be paid immediately. On the other hand, Sri Yogesh Chandra Verma, learned senior counsel for the appellants submits that in terms of Section 357(2) of the Code of Criminal Procedure the moment an appeal is filed against the order of conviction and sentence which includes fine then automatically the fine gets stayed and there is no necessity even for a prayer of stay of fine. The legislature which empowered the Court to impose the fine has provided for an automatic stay of fine till disposal of the appeal. His submission is that once statutory stay of fine imposed was provided, then neither any prayer has to be made nor any order contrary to the statute can be passed. This has caused a peculiar situation. We therefore proposed to decide this issue so that there is clarity and unanimity in approach.

5. There is no dispute that a criminal court under the provision of the Code of Criminal Procedure has the jurisdiction to impose fine and compensation. There are pecuniary limits to the imposition of fine, depending upon the Court ( Section 29 of the Code of Criminal Procedure in relation to Magistrate ) but so far as compensati