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 Singh & others [AIR 1988 SC 2127] reiterated unambiguously in Suganthi Suresh Kumar v. Jagdeeshan [AIR 2002 SC 681], in any way altered by the subsequent decision of the Supreme Court in Ettappadan Ahammedkutty @ Kunhappu v. E.P.Abdullakoya @ Kunhi Bappu and Another 2008(1)KLT 851 SC? Will it now be lawful for the Magistrates to impose such a default sentence?

2. Thequestion 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 law with clarity. Such confusion cannot be permitted 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 of 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 fine 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 vs. Balan 1999 (3) KLT 440 (SC). The supreme Court observes so in paragraph 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.

1.31. However, the magistrate in such cases can alleviate the grievance of the complainant by making resort to S.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. Sukhbir Singh and Ors. JT 1988(3) sc 11]. No limit is mentioned in the sub-section and therefore, a magistrate 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. Thenext 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 sentenc