M. Sasidharan Nambiar, J.

When the sentence awarded includes payment of compensation under S. 357(3) of Code of Criminal Procedure, with a default sentence and the accused undergoes the default sentence, whether the compensation awarded could be recovered by issuing a distress warrant under S. 421 of Code of Criminal Procedure? Crl. M.C. No. 2083 of 2011 was filed by an accused who was convicted and sentenced to simple imprisonment for three months each for the offences under Ss. 279, 337 and 338 of Indian Penal Code. In Crl. R.P. No. 1445 of 2001 filed by the petitioner, while confirming the conviction, this court modified the sentence to imprisonment till rising of court in addition to compensation under S. 357(3) of Code of Criminal Procedure, to the injured at the rate of Rs. 10,000/- each to Pws. 1 and 2 and Rs. 8000/- to PW 3 and Rs. 5000/- each to Pws. 4 and 6 with a default sentence of imprisonment for one month each. Petitioner did undergo the substantive sentence but did not pay the compensation and had undergone the default sentence. When the learned Magistrate issued a distress warrant for realisation of the compensation, as provided under S. 421 of Code of Criminal Procedure, petitioner filed Annexure D petition before the learned Magistrate to recall the distress warrant contending that as he has already undergone the default sentence, no distress warrant could be issued. By Annexure E order, learned Magistrate dismissed the petition. It is challenging that order Crl. M.C.2083 of 2011 was filed under S. 482 of Code of Criminal Procedure, to quash Annexure E order and to allow his prayer in Annexure D petition filed before the learned Magistrate.

2. When the matter was heard by the Single Judge and the decision of a learned Single Judge of this court in Saji Kumar Vs. Soman Pillai, (2006) 3 ILR (Ker) 703 : (2006) 3 KLT 679 was pointed out and submitted that the view taken therein is to be reconsidered, in view of the ambit of the proviso to S. 421(1) of Code of Criminal Procedure, the Crl. M.C was referred to the Division Bench for an authoritative pronouncement on the question whether the proviso to S. 421 of Code of Criminal Procedure will take in sub-s.(1) of S. 357 of Code of Criminal Procedure alone or sub-s.(3) of S. 357 also.

3. Crl. R.P. No. 2397 of 2011 and Crl. R.P. No. 2398 of 2011 were filed by the same accused who was convicted and sentenced for the offence under S. 138 of Negotiable Instruments Act in C.C.200 of 2003, by Judicial First Class Magistrate, Adimaly. In that case the revision petitioner was sentenced to imprisonment for four months and was directed to pay a compensation of Rs. 2,75,000/-. In appeal, the sentence was modified, by the Sessions Court, to imprisonment till rising of court maintaining the compensation, with the default sentence of simple imprisonment for one month. Petitioner appeared before the Magistrate. As compensation awarded was not paid he had undergone the default sentence also. The complainant in that case filed C.M.P. No. 2018 of 2008 for attaching Rs. 15,000/- which was deposited by the revision petitioner earlier and also to take further steps to realise the balance of the compensation awarded. By order dated 19.7.2008, learned Magistrate allowed the application and issued distress warrant against the revision petitioner under S. 421 of Code of Criminal Procedure. The revision petitioner thereafter filed C.M.P. No. 667 of 2011, a petition to recall the distress warrant issued pursuant to the order dated 19.7.2008, contending that as he has already undergone the default sentence, the distress warrant cannot be issued. By order dated 29.3.2011, that petition was dismissed. Crl. R.P. No. 2397 of 2011 is filed challenging the said order. Crl. R.P. No. 2398 of 2011 is filed challenging the order dated 19.7.2008. When the revision petitions came before the learned Single Judge, as similar question was referred to the Division Bench in Crl. M.C. No. 2083 of 2011, the