The court clarified the interpretation of the default clause in the payment of compensation under Section 357(3) and the relevance of the victim's consent in attracting Section 312, I.P.C.

This Crl. Revision Petition is directed challenging the confirmed judgment of the Sessions Judge, Thalassery delivered in Crl. A. No. 112 of 1996. The first revision petitioner was found guilty under section 417 read with 34, I.P.C. and was sentenced to undergo rigorous imprisonment for two months and also found guilty under section 312 read with 109, I.P.C. and thereby sentenced to undergo rigorous imprisonment for four months. In addition to the above sentences, he was directed to pay a sum of Rs. 50,000/- as compensation to the victim lady, Vilasini, first respondent herein, under the provisions of Section 357(3), Cr.P.C. and in case of default in payment of the compensation, he shall undergo rigorous imprisonment for a period of one year. The second accused-second petitioner who is the sister of the first petitioner-first accused was released under section 4 of the Probation of Offenders Act. In the appeal, the Sessions Judge confirmed the conviction and sentence and also affirmed the payment of compensation of Rs. 50,000/- in toto.

2. While taking this revision on file, this Court suspended the sentence of the Sessions Judge and also stayed his finding as to the payment of the compensation for one month. Thereafter, the stay was not extended.

3. Learned counsel Mr. Shaji, appearing for the revision petitioners submitted that already the first revision petitioner had undergone the substantial sentence of imprisonment awarded under section 417 read with 34, I.P.C. and 312 read with 109, I.P.C. Even after the expiry of the terms of imprisonment he has not yet been released by the jail authorities on the ground that he has to still undergo imprisonment for a period of one year as per the default clause in the payment of compensation. Such a retention by the jail authority after the expiry of the substantial sentence of imprisonment is erroeous. For, the compensation was awarded under section 357(3), Cr.P.C. where there is no rider for imprisonment in case of default in the payment of compensation. Section 357(3), Cr.P.C. reads as follows :

"357(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 of the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced."

Hence the finding of the learned Magistrate to the effect that in default in the payment of compensation the first petitioner shall undergo imprisonment for a period of one year which was confirmed by the Sessions Judge in the criminal appeal, will have to be annulled. However, Section 431, Cr.P.C. stretches its hand for help at this situation. It reads as follows :

"431. Money ordered to be said recoverable as a fine. - Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine."

Section 421, Cr.P.C. is explicitly clear that in the case of default in the payment of fine Revenue Recovery Act can be resorted to for the recovery of the same. The provisions contemplated in Sections 431 and 421, Cr.P.C. are conspicuously clear that the amount of compensation awarded under section 357(3), Cr.P.C. can be recovered under the Revenue Recovery Act. When that be the position of law, the finding of the learned Magistrate which was confirmed by the Sessions Judge in relation to the default clause in the payment of compensation of Rs. 50,000/- is erroneous and both the findings are liable to be set aside. Accordingly, those portions of the judgments relating to the default clause in the payment of compensation, of both the learned Magistrate and the Sessions Judge are set aside.

4. Coming to the substantial sentence of imprisonment imposed under sections 417 and 312, I.P.C., the first petitioner has already undergon