The main legal point established in the judgment is that compensation under Section 357 of the Code of Criminal Procedure could only be awarded when a sentence of fine was imposed, and it does not apply when the sentence of fine or imprisonment does not subsist.

A.N. Jindal, J

The trial court, vide judgment dated 3.04.2007, convicted the accused/respondents (herein referred as the respondents) under sections 148, 323, 325 and 149 IPC and sentenced them as under:-

Name of convicts Under Sections Sentence Fine

1. Jagir Singh 148 IPC } R.I. for one year Rs.500/-, each on

2. Mahal Singh 323/149 IPC } each count

3. KashmirSingh

4. Babbu Sabba

-do- 325/149 IPC R.I. for two years Rs.1000/-, each

However, vide judgment dated 22.10.2009, the first appellate court, keeping in view the peculiar circumstances of the case without mentioning the provisions under which the benefit of probation was being granted, affirmed the conviction and modified the sentence by extending the benefit of probation. Relevant extract of the judgment passed by the learned Additional Sessions Judge is reproduced as under:-

“.....the appellants/accused are ordered to be released on probation on executing probation bond for a period of one year and for a sum of Rs.10,000/- with one surety of like amount in each case and it is ordered that the fine already ordered by the learned lower court is ordered to be treated as cost of prosecution. Thus, the appeal is partly accepted to the effect that the sentence stands modified and the accused/appellants are ordered to be released on probation as ordered above. It is made clear that in case accused/appellants shall be found to have committed same offence again within such period, they shall be called upon to receive the sentence in accordance with law.”

The prime question raised by the earned counsel for the petitioner in this petition is that the court while extending the benefit of probation did not consider for granting compensation to the petitioner as provided under section 357 of the Code of Criminal Procedure (herein referred as the Code).

This Court vide order dated 18.08.2010 had issued notice of motion while considering the ground that appellate court should have granted compensation to the complainant/injured under section 357 of the Code.

Having heard the rival contentions, it transpired that though the first appellate court had proceeded to extend the benefit of probation but it failed to mention as to if the benefit of probation was extended under section 4 or section 5 of the of the Act or under Section 360 of the Code.

Faced with this situation, I feel, that since the appellate court in its judgment has mentioned that one of the accused/respondents namely Mahal Singh was more than 70 years of age at that time and other accused persons were in the age group of 20-30 years, therefore, it appears that obviously benefit of probation certainly would have been extended under section 360 of the Code.

Now the question to be determined before me is as to “whether the court while extending benefit of probation under section 360 of the Code, it was competent to grant compensation to the complainant?” In this regard, it may be observed that as soon as the order for releasing the accused on probation is passed, the sentence of fine does not subsist. Since neither the sentence of fine nor the sentence of imprisonment subsisted any more then the question of applying the whole or part of the fine in the payment of compensation does not arise.

Section 357 of the Code does not provide for any compensation when granting probation to the accused. However, compensation could be granted out of fine or in addition to the sentence and fine. Relevant part of Section 357 of the Code reads as under:-

“357. Order to pay compensation:-

(1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied:-

(a) in defraying the expenses properly incurred in the prosecution;

(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recov