Kerala High Court
Raveendran vs Soman on 10 May, 2010
Author: P.Bhavadasan
Bench: M.Sasidharan Nambiar, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934
Crl.MC.No. 2083 of 2011 ( )
---------------------------
AGAINST THE ORDER/JUDGMENT IN CRRP.1445/2001 DATED 10-05-2010
CMP.1455/2011 of J.M.F.C.-III,KOZHIKODE
PETITIONER(S):
-------------
RAVEENDRAN
HOUSE, P.O.PUNNASSERI, NANMINDA AMSOM
KUTTAMPOOR DESOM, KOZHIKODE.
BY ADVS.SRI.P.V.KUNHIKRISHNAN
SRI.HANSON.P.MATHEW
COMPLAINANT(S):
---------------
1. STATE OF KERALA AND OTHERS
REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM -30.
2. TAHSILDAR, TALUK OFFICE,
KOZHIKODE 673 020.
3. VILLAGE OFFICE, NANMANDA,
KOZHIKODE 673 022.
BY ADV. PUBLIC PROSECUTOR K K RAJEEV
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-08-
2012, ALONG WITH CRRP. 2397/2011, CRRP. 2398/2011, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
M.SASIDHARAN NAMBIAR &
P.BHAVADASAN,JJ.
---------------------------------------------
Crl.M.C.No.2083 of 2011,
Crl.R.P.No.2397 of 2011 &
Crl.R.P.No.2398 of 2011
---------------------------------------------
Dated 8th August, 2012
ORDER
Sasidharan Nambiar, J "CR"
When the sentence awarded includes payment of compensation under Section 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 Section 421 of Code of Criminal Procedure ?
2. 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 Section 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 Crmc 2083/11 & conn.cases 2 compensation under Section 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 PW3 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 Section 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 Crmc 2083/11 & conn.cases 3 Section 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.
3. When the matter was heard by the Single Judge and the decision of a learned Single Judge of this court in Saji Kumar V. Soman Pillai(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 Section 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 Section 421 of Code of Criminal Procedure will take in subsection (1) of Section 357 of Code of Criminal Procedure alone or sub-section (3) of Section 357 also.
Crmc 2083/11 & conn.cases 4
4. 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 Section 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 Crmc 2083/11 & conn.cases 5 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 Section 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 Crmc 2083/11 & conn.cases 6 revision petitions were also referred to the Division Bench.
5. Though notices were served on the respondents/complainant and the injured in the respective cases, they did not appear.
6. Learned senior counsel appearing for the revision petitioner and the learned counsel appearing for the petitioner in the Crl.M.C were heard.
7. The argument of the learned senior counsel is that though there was a difference of opinion on the question whether a default sentence could be awarded for the payment of compensation awarded under Section 357(3) of Code of Criminal Procedure, the question has been finally settled by the Honourable Supreme Court in R.Mohan V. A.K.Vijaya Kumar(2012(6) SCALE 113) and therefore there could be a sentence for payment of compensation with a Crmc 2083/11 & conn.cases 7 default sentence and when the accused has already undergone the default sentence, the compensation cannot be recovered by recourse to Section 421 of Code of Criminal Procedure. The argument is that only if a fine is available to be recovered, Section 421 of Code of Criminal Procedure applies and when for non payment of the fine, an accused has already undergone default sentence, Section 421 of Code of Criminal Procedure as such has no application and therefore when an accused has undergone the default sentence, even if there is a direction to pay compensation, the compensation cannot be recovered thereafter. The learned senior counsel pointed out that though the revision petitioner was convicted for the offences under Section 138 of Negotiable Instruments Act, the sentence does not include fine and compensation was awarded only under Section 357 Crmc 2083/11 & conn.cases 8 (3) of Code of Criminal Procedure and in view of the decision of the Supreme Court, the default sentence is legal and the revision petitioner had undergone the sentence. The argument is that if the compensation is to be recovered under Section 421 of Code of Criminal Procedure, in spite of undergoing the default sentence, it would amount to a third sentence as he has already undergone the default sentence. The argument is that payment of compensation is the sentence and the default sentence is the alternative sentence and when for non payment of the compensation he has already undergone the the default sentence and thus the sentence is undergone. If compensation is again to be realised under Section 421 of Code of Criminal Procedure, it would amount to a third sentence which is not contemplated under the Code of Criminal Procedure or the Crmc 2083/11 & conn.cases 9 Negotiable Instruments Act and therefore, the order of the learned Magistrate issuing distress warrant is not sustainable. The learned senior counsel pointed out that though in Siby V. Vilasini (1998(2) KLT 462), a learned Single Judge of this court held that there cannot be a default sentence for payment of compensation for an offence under Section 138 of Negotiable Instruments Act, another Single Judge in Aboobacker V.Ismail (2005(1) KLT 663 held otherwise and by the decision in R.Mohan's case (supra), it is now settled that a compensation could be awarded with a default sentence and therefore, when the revision petitioner had undergone the default sentence, the compensation cannot be realised thereafter. Learned senior counsel argued that compensation is recovered by recourse to Section 421 of Code of Criminal Procedure in view of Section Crmc 2083/11 & conn.cases 10 431 of Code of Criminal Procedure and when the compensation directed to be paid is followed by a default sentence and the default sentence was undergone, the said amount cannot be realised again under Section 421 of Code of Criminal Procedure as by undergoing the default sentence, the sentence is unexecutable. The learned senior counsel argued that the learned Magistrate did not properly appreciate the decision of learned Single Judge in Saji Kumar's case as in that case, though there was a direction to pay compensation, there was no default sentence and the said decision cannot be applied to a case where the accused has undergone the default sentence and compensation is again sought to be realised. Reliance was placed on the following decisions. Vijayan V. Sadanandan(2009(2) KLT 618), Surendran V. Preman(2011(1) KLT 751), Alex Mathew V.George Crmc 2083/11 & conn.cases 11 John (2008(2) KLT 131), Abbas V. Sabu Joseph (2010(2) KLT 943), Ahammedkutty V.Abdullakoya (2008(1) KLT 851) and Shantilal V. State of M.P (2007(11) SCC 243).
8. The learned counsel appearing for the petitioner in Crl.M.C pointed out that though the petitioner was originally convicted and sentenced to undergo imprisonment for three months each, in the revision, the sentence was modified to imprisonment till rising of court and compensation and in such circumstances, the petitioner had to undergo imprisonment for three months if this court had not modified the sentence in the criminal revision petition and this court in the criminal revision petition, modified the sentence to imprisonment till rising of court and payment of compensation with a default sentence of simple imprisonment for one month each and for non payment of the Crmc 2083/11 & conn.cases 12 compensation, revision petitioner had already undergone the original period of imprisonment which he would have undergone, if he had not preferred a revision petition and in such circumstances, when the revision petitioner had already undergone the sentence, learned Magistrate should not have issued a distress warrant and when a petition was filed to recall the distress warrant, it should have been recalled. Learned counsel argued that the proviso to Section 421 of Code of Criminal Procedure would apply only if there is a direction to pay compensation as provided under Section 357(1) of Code of Criminal Procedure and not under Section 357(3) of Code of Criminal Procedure and the petitioner was not sentenced to pay fine and when there was no direction to pay compensation under Section 357 (1) of Code of Criminal Procedure, the proviso Crmc 2083/11 & conn.cases 13 will not apply and in that case, once the petitioner had undergone the default sentence, a distress warrant cannot be issued thereafter. Learned counsel would argue that compensation could be recovered by recourse to Section 421 of Code of Criminal Procedure only by invoking Section 431 of Code of Criminal Procedure and though the proviso to Section 431 of Code of Criminal Procedure provides that Section 359 of Code of Criminal Procedure is deemed to have included in the proviso to Section 421 of Code of Criminal Procedure, compensation awarded under Section 357(3) of Code of Criminal Procedure was not included and therefore, it is clear that the legislatures have no intention to include the compensation awarded under Section 357(3) of Code of Criminal Procedure in the proviso to Section 421 of Code of Criminal Procedure and hence when the accused has Crmc 2083/11 & conn.cases 14 undergone the default sentence, for non payment of the compensation awarded under Section 357 (3) of Code of Criminal Procedure, the same cannot be realised by recourse to Section 421 of Code of Criminal Procedure and therefore the order is not sustainable. Learned counsel also argued that though the direction to pay compensation is not a sentence, it is default sentence and as the compensation could be recovered only as provided under Section 431 of Code of Criminal Procedure, and so the sentence contemplated under Section 421 of Code of Criminal Procedure is to be understood as inclusive of a sentence to pay compensation with a default sentence and therefore the proviso to Section 421 of Code of Criminal Procedure is to be applied for payment of compensation also and when only the compensation awarded under Section 357(1) of Crmc 2083/11 & conn.cases 15 Code of Criminal Procedure is included within the proviso, the compensation awarded under Section 357(3) of Code of Criminal Procedure cannot be realised under Section 421 of Code of Criminal Procedure, when the accused has already undergone the default sentence.
9. For a proper appreciation of the proviso to Section 421 of Code of Criminal Procedure, it is necessary to bear in mind the various provisions for payment of compensation under the Code of Criminal Procedure as well as its mode of recovery. Section 357 of Code of Criminal Procedure deals with the order to pay compensation. Sub-section (1) therein provides for payment of compensation when fine forms part of the sentence. Under sub-section (1), when the sentence includes fine, there could be a direction to pay either in full or part of the fine as compensation. Sub-section (3) of Crmc 2083/11 & conn.cases 16 Section 357 of Code of Criminal Procedure applies, when fine does not form part of the sentence. If fine does not form part of the sentence, as provided under sub-section (3) of Section 357 of Code of Criminal Procedure, the court while imposing a sentence may 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 person has been so sentenced. The compensation provided under sub-section (1) of Section 357 of Code of Criminal Procedure is to be applied in defraying the expenses properly incurred in the prosecution or in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is recoverable by such person in a Civil Court or when any person is convicted of any offence for Crmc 2083/11 & conn.cases 17 having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are under the Fatal Accidents Act, entitled to recover damages from the person sentenced for the loss resulting to them from such death or when any person is convicted of any offence which includes theft,criminal misappropriation, criminal breach of trust or cheating or of having dishonestly received or retained or of having voluntarily assisted in disposing of stolen property knowing or having reason to believe the same to be stolen, in compensating any bonafide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. Sub-section (1) and (3) of Section 357 of Code of Criminal Procedure read:-
" 357. Order to pay compensation
-(1) When a Court imposes a Crmc 2083/11 & conn.cases 18 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, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855(13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide Crmc 2083/11 & conn.cases 19 purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2)xxxxx (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 to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced".
10. Section 358 of Code of Criminal Procedure provides for compensation to person groundlessly arrested. Under sub-section (1) therein, whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground of causing such arrest, the Magistrate may award such compensation, not exceeding one thousand rupees Crmc 2083/11 & conn.cases 20 to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit. Sub-section (3) further provides that the compensation awarded under the Section may be recovered as if it were a fine and if it cannot be so recovered the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid. Therefore, while sub-
section (1) provides for compensation, sub- section (3) provides for the mode of recovery under Section 421 of Code of Criminal Procedure as if it is a fine and on the failure to realise it, to direct simple imprisonment for a term not exceeding 30 days.
11. Section 359 of Code of Criminal Procedure provides for payment of cost in non-
Crmc 2083/11 & conn.cases 21 cognizable cases. Under sub-section (1), whenever any complaint of a non-cognizable
offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days and such costs may include any expenses incurred in respect of process-fees, witnesses and pleader's fees which the Court may consider reasonable. Sub- section (2) provides that an order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision.
12. Section 421 of Code of Criminal Procedure deals with the realisation of fine.
Crmc 2083/11 & conn.cases 22 Section 421 of Code of Criminal Procedure reads:-
" 421.Warrant for levy of fine -
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may -
(a) issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender;
(b)issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter.
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.
(2)The State Government may make Crmc 2083/11 & conn.cases 23 rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:
Provided that no such warrant
shall be executed by the arrest
or detention in prison of the
offender".
13. Section 421 of Code of Criminal
Procedure, as such is applicable only for
realising the sentence of fine. Section 431 of Code of Criminal Procedure deals with recovery of money, which is not otherwise provided under the Code of Criminal Procedure. Section 431 of Code of Criminal Procedure reads.
"431. Money ordered to be paid Crmc 2083/11 & conn.cases 24 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:
Provided that section 421 shall, in its application to an order under section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of section 421, after the words and figures "under section 357", the words and figures "or an order for payment of costs under section 359" had been inserted".
14. In view of the proviso to Section 431 of Code of Criminal Procedure, the proviso to Section 421 of Code of Criminal Procedure is to be read as inclusive of an order for payment of cost under Section 359 of Code of Criminal Procedure, along with the compensation out of fine under Section 357 of Code of Criminal Procedure.
15. It is thus clear that the compensation payable under sub-section (1) of Section 357 of Crmc 2083/11 & conn.cases 25 Code of Criminal Procedure is either full or part of the fine which is the sole or one of the sentence(punishment sixthly of Section 53 of Indian Penal Code) awarded to the accused. Necessarily as it is part of the fine, there would be a default sentence, as provided under Section 64 of Indian Penal Code. The compensation awarded under sub-section (3) of Section 357 of Code of Criminal Procedure cannot form part of the fine, as compensation under Section 357(3) of Code of Criminal Procedure could be awarded only if fine does not form part of the sentence. Sub-section (3) does not specifically provide for a default sentence or the mode of recovery of compensation. The compensation awarded under Section 358 of Code of Criminal Procedure itself provides for the mode of recovery as provided under Section 421 of Code of Criminal Crmc 2083/11 & conn.cases 26 Procedure, as if it is a fine. It also provides that if it cannot be recovered as provided under Section 421 he could be sentenced to simple imprisonment for a term not exceeding thirty days. The compensation awarded under Section 359 of Code of Criminal Procedure thus only provides for a default sentence. But the section does not provide for realisation of the compensation as if it is a fine, as provided in Section 358 of Code of Criminal Procedure.
16. Section 431 of Code of Criminal Procedure is to be appreciated in this background. Section 431 of Code of Criminal Procedure applies (i) when any money other than fine is payable by virtue of an order made under the Code and (ii) the method of its recovery is not otherwise expressly provided for. Under the Section, such money is recoverable as if it were a fine. As a Crmc 2083/11 & conn.cases 27 compensation awarded under Section 359 of Code of Criminal Procedure does not provide for the mode of its recovery, Section 359 of Code of Criminal Procedure is included in the proviso to Section 431, providing that proviso to Section 421 of Code of Criminal Procedure is to be construed as inclusive of an order for payment of costs under Section 359 of Code of Criminal Procedure. The compensation awarded under Section 358 of Code of Criminal Procedure expressly provides for the mode of its recovery and also imprisonment in case it cannot be recovered. Section 358 of Code of Criminal Procedure was not therefore included in the proviso to Section 431, as the mode of recovery is there in the section itself. Section 359 was included in the proviso to Section 421(1), by virtue of the proviso to Section 431, as mode of recovery of the compensation is not Crmc 2083/11 & conn.cases 28 expressly provided in the section as is the case in Section 358. As the compensation payable under Section 357(3) of Code of Criminal Procedure, was not provided with a default sentence, it was not included in the proviso to Section 431 of Code of Criminal Procedure and thereby it was not included in the proviso to Section 421(1) of Code of Criminal Procedure. The proviso to sub-section 1 of Section 421 takes in only sub- section (1) of Section 357.
17. The compensation payable under Section 357 of Code of Criminal Procedure, both under sub-section 1 and 3, is recoverable under Section 421 of Code of Criminal Procedure by virtue of Section 431 of Code of Criminal Procedure. The compensation awarded under Section 357(3) is money payable under the Code. No specific mode of recovery of the compensation is expressly provided under Section 357(3) of Crmc 2083/11 & conn.cases 29 Code of Criminal Procedure. Hence, recovery of that compensation can only be as provided under Section 421 of Code of Criminal Procedure.
18. If there is no proviso to Section 421 (1) of Code of Criminal Procedure, even if there is a default sentence for the fine awarded and an accused has undergone the sentence, the fine could be realised as provided under sub-section (1) of Section 421 of Code of Criminal Procedure. But in view of the proviso, if there is a sentence of fine with a default sentence, once the default sentence is undergone and the fine is sought to be reallised thereafter, the proviso is to be applied. The proviso mandates that if sentence directs that in default of payment of fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue Crmc 2083/11 & conn.cases 30 such warrant unless for special reasons to be recorded in writing, court considers it necessary to do so after recording special reasons in writing to that effect or unless it has made an order for payment of expenses or compensation out of fine under Section 357 of Code of Criminal Procedure. The proviso therefore makes it clear that if an accused, who was sentenced to pay a fine with a default sentence, had not paid the fine either wilfully or due to want of means to pay, and consequently had undergone the default sentence, the fine cannot be realised thereafter, unless there is a direction to pay compensation out of the fine as provided under sub-section (1) of Section 357 of Code of Criminal Procedure, or a direction to pay compensation under Section 359, without recording the special reasons in writing, for Crmc 2083/11 & conn.cases 31 realising the same. Such special reasons are to be recorded, only if there is no direction to pay compensation either under Section 357(1) or
359. If there is such a direction to pay compensation under Section 357(1) or 359, even without recording any special reason, the part or full of the fine to be paid as compensation (as the case may be) or the compensation awarded under Section 359 could be realised. The fact that the accused person has already undergone the default sentence does not make any difference. Special reasons as provided under the proviso to sub-section 1 of Section 421 are to be recorded only in other cases, where an accused has undergone the default sentence for the non payment of fine.
19. Though learned senior counsel vehemently argued that question of realisation of compensation or fine by recourse to Section 421 Crmc 2083/11 & conn.cases 32 of Code of Criminal Procedure, would arise only if fine or compensation remains to be recoverable and when an accused, who was sentenced to fine or compensation has already undergone the default sentence, the fine or compensation cannot be legally recovered thereafter and therefore after undergoing the default sentence, the sentence of fine or award of compensation does not survive, we cannot agree. Though Section 68 of Indian Penal Code provides that the imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law and Section 69 provides for similar termination of imprisonment on payment of proportional part of the fine, Indian Penal Code does not provide that on undergoing the default sentence, the sentence of fine does not survive or cannot be recovered thereafter.
Crmc 2083/11 & conn.cases 33
20. Section 421 does not provide that once the default sentence is undergone by the offender, the fine cannot be realised thereafter. Sub section (1) only provides that no court shall issue such warrant as provided under the section if the offender had undergone whole of such imprisonment in default, unless for special reasons to be recorded in writing it considers it necessary so to do or it is made an order for payment of expenses or compensation out of the fine under Section 357 of Code of Criminal Procedure. Therefore, it is clear that even if there is a sentence of fine with a default sentence, and the default sentence was undergone, the fine could be realised, provided the Court for special reasons, recorded in writing, considers it necessary to realise it. Similarly, if the sentence provides for payment of compensation Crmc 2083/11 & conn.cases 34 under Section 357(1) or Section 359 of Code of Criminal Procedure, the said compensation is recoverable, even if the accused has undergone the default sentence, as is clear from the proviso to Section 431 of Code of Criminal Procedure and the proviso to sub-section (1) of Section 421 of Code of Criminal Procedure. In such a case there is no necessity to record even the special reasons. In such circumstances, we cannot agree with the argument of learned senior counsel appearing for the petitioner that as the proviso to Section 421 does not include the compensation payable under Section 357(3) of Code of Criminal Procedure, if the offender has undergone the default sentence for non payment of compensation awarded under Section 357(3) of Code of Criminal Procedure, the compensation thereafter cannot be realised by recourse to Crmc 2083/11 & conn.cases 35 Section 421 of Code of Criminal Procedure.
21. The Division Bench of Patna High Court in Brahmeshwar Prasad Sinha V.State of Bihar (1983 Crl.L.J.8) has also taken a similar view. It reads:-
"13.The other argument advanced is that in view of the circumstance that the petitioners have served out the sentences of imprisonment in default of payment of fine, no steps for realisation of fine should be taken. Though reference in the court below was made to S.386 of Code of Criminal Procedure, 1898(hereinafter called "the old Code"), it seems that the case is governed by the Code of Criminal Procedure, 1973 in which the corresponding Section is 421.
Now it is obvious that neither S.386 of the old Code nor S.421 of the new Code completely debars the Court from realising the fine, if the person convicted, has already served out the sentence imposed in default of payment of fine. What they require is that in such cases, no court shall issue such warrant, unless for special reasons to be recorded in writing, it considers t necessary to do so.
22. True, though sub-section (3) of Section Crmc 2083/11 & conn.cases 36 357 of Code of Criminal Procedure does not expressly provide for a default sentence, the competency of the Magistrate to award a default sentence for the compensation awarded under Section 357(3) of Code of Criminal Procedure is now finally settled by the Honourable Supreme Court. Though in Ahamedkutty's case (supra), it was held that there cannot be a default sentence when compensation is awarded under Section 357(3), in Vijayan V. Sadanandan (2009(7)SCC 652)(2009(2)KLT 618 (SC)),taking note the Constitution Bench decision in Hari Singh V.Sukhbir Singh (1998 (4) SCC 551) which was followed in Sugnathi Suresh Kumar V. Jagdeeshan (2002(2) SCC 420) it was held that "the provisions of Section 357(3) and 431 of Cr.PC with Section 64 of Indian Penal Code empower the court, while making an order for payment of compensation, to also include a Crmc 2083/11 & conn.cases 37 default sentence in case of non payment of the same". That view was re-iterated in R.Mohan's case (supra). It therefore settles the divergent views. When compensation is awarded under Section 357(3) of Code of Criminal Procedure, there could definitely be a default sentence.
23. The argument of the learned senior counsel is that as the Supreme Court has held that there could be a default sentence for the compensation awarded under Section 357(3) of Code of Criminal Procedure, it is a sentence and therefore the proviso to Section 421 of Code of Criminal Procedure applies and when an accused had undergone the default sentence, the fine cannot be realised again by recourse to Section 421 of Code of Criminal Procedure thereafter. We cannot agree with the proposition. If that argument is to be Crmc 2083/11 & conn.cases 38 appreciated, then the proviso to Section 421 of Code of Criminal Procedure would be redundant. If there is a sentence for payment of fine with a default sentence and the offender has undergone the default sentence and thereafter no fine could be recovered under Section 421 of Code of Criminal Procedure, there is no necessity for enacting a proviso in the section because in that case, once the default sentence is undergone, no fine is payable or recoverable thereafter. Instead the proviso mandates only that in such a case no warrant shall be issued, unless the Court for special reasons to be recorded in writing, the satisfaction that it is necessary to do, or the compensation awarded is under Section 357(1) or 359. Therefore, it is clear from Section 421 of Code of Criminal Procedure that even if an accused has undergone the default sentence for non payment of fine, Crmc 2083/11 & conn.cases 39 the fine could be recovered, provided court considers it necessary so to do and record the special reasons for realising the same or part of the fine is payable as compensation under Section 357 or compensation is awarded under Section 359. Supreme Court in Santilal V. State of M.P (2007(11) SCC 243 (2008(1) KLT 503) considered the question, whether default sentence undergone for non payment of fine is a sentence and held in the negative as follows.
"31. The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part of in whole either in appeal or in revision or in other appropriate judicial proceedings or "otherwise". A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is Crmc 2083/11 & conn.cases 40 unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount".
24. The proviso to sub-section (1) of Section 421 of Code of Criminal Procedure applies in a case where Court has to issue a warrant for recovery of fine. The proviso is to the effect that if the sentence directs that in default of payment of fine, the offender shall be imprisoned and if such offender has undergone the default sentence, in such a case, warrant can be issued only as provided in the proviso. Therefore to apply the proviso, first of all there should be a sentence. The sentence should include payment of fine with a default sentence for the non payment of fine. The offender who is so sentenced has to undergo the default sentence for the non payment of fine. If these conditions are satisfied unless Court Crmc 2083/11 & conn.cases 41 has made an order for the payment of expenses or compensation under Section 357(1) or 359, no warrant can be issued, unless court considers it necessary for special reasons to be recorded in writing. Section 53 of Indian Penal Code provides the punishment. The compensation is not a mode of punishment. As held in Santhilal (supra), compensation awarded under Section 357, 358 or 359 of Code of Criminal Procedure is not a sentence. True, the compensation awarded under sub-section (1) of Section 357 of Code of Criminal Procedure could only be part of the fine, which is a sentence and the proviso to Section 421 applies to that compensation. By virtue of the proviso, even if an accused has undergone the default sentence for non payment of fine, the said compensation can be recovered under sub-section (1) of Section 421 of Code of Criminal Procedure.
Crmc 2083/11 & conn.cases 42 For non-inclsion of sub-section (3) of Section 357 of Code of Criminal Procedure in the proviso to Section 421 of Code of Criminal Procedure, if it is to be held that the compensation awarded under sub-section (3) of Section 357 of Code of Criminal Procedure cannot be realised if he has already undergone the default sentence, it would result in serious anomaly. It is possible that the same accused faced trial in two cases for the offence under Section 138 of Negotiable Instruments Act. Even the complainant could be the same. In one case, there could be a sentence of imprisonment and fine with a direction to pay part of the fine as compensation, to the complainant. By virtue of the proviso to sub-section (1) of Section 421 of Code of Criminal Procedure even if he has undergone the default sentence for non payment Crmc 2083/11 & conn.cases 43 of fine, the compensation awarded could be realised. If that very same accused is convicted for the same offence in the other case and is sentenced to imprisonment and compensation, with a default sentence for non payment of compensation, and if he has undergone the default sentence for non-payment of compensation, and for the reason that compensation payable under sub-section (3) of Section 357 of Code of Criminal Procedure was not included in the proviso to sub-section (1) of Section 421 of Code of Criminal Procedure, the compensation cannot be recovered, it would lead to a precarious position. In the first case, though sentence was imprisonment and fine with a direction to pay the fine realised as compensation to the complainant, in spite of undergoing the substantive sentence and the default sentence, the compensation payable is Crmc 2083/11 & conn.cases 44 recoverable under proviso to Section 421(1). In the second case, even if the substantive sentence is imprisonment till the rising of court and compensation with a default sentence, if the compensation cannot be realised for the reason that default sentence has already been undergone, it would result in an entirely different consequence. It cannot be accepted as it was never visualised. As stated earlier, the legislature did not think it necessary to include sub-section (3) of Section 357 of Code of Criminal Procedure in the proviso to sub- section (1) of Section 421 of Code of Criminal Procedure or the proviso to Section 431, as Section 357(3) of Code of Criminal Procedure does not provide for a default sentence. Compensation awarded under Sub section 1 of Section 357 is included in the proviso, as that compensation is out of the fine awarded.
Crmc 2083/11 & conn.cases 45 Learned senior counsel appearing for the
petitioner pointed out the object and reasons shown for including Section 357 of Code of Criminal Procedure, in Section 421 of Code of Criminal Procedure and submitted that the object and reasons show that payment of compensation under sub-section (3) of Section 357 of Code of Criminal Procedure was not intended to be included in the proviso.
25. The relevant portions of the object and reasons shown in Section 421 of Code of Criminal Procedure for enacting Section 421 of the 1973 Code read as follows.
"The Law Commission in its 41st Report recommending amendments to S.386 observed thus :-
28.7. xxxxxxxx 28.8.xxxxxxxxxx 28.9. Under the proviso to S.386 (1), if the offender has undergone the whole of the imprisonment in default of payment of fine, no Crmc 2083/11 & conn.cases 46 Court shall issue a warrant for levy of the fine unless, for special reasons to be recorded in writing, it considers it necessary to do so. The object of the proviso and the special reasons that can possibly arise were dealt with at length in a Bombay case (AIR 1935 Bom 160(161, 162).
28.10. We notice that in the above judgment the fact that the complainant has been allotted part of the fine was not considered a relevant special reason for purposes of the proviso as it stands. A contumacious offender should not in our opinion, be permitted to deprive the aggrieved party of the small compensation awarded to it by the device of undergoing the sentence of imprisonment in default of payment of the fine. When an order under S.545 has been passed for the payment of expenses or compensation out of the fine, recovery of the fine should be pursued, and in such cases, the fact that the sentence of imprisonment in default has been fully undergone should not be a bar to the issue of a warrant for levy of the fine. We recommend that the proviso to S.386(1) should make this clear".
26. True, the object and reasons show that Crmc 2083/11 & conn.cases 47 payment of compensation, being part of the fine amount provided under sub-section (1) of Section 357(1) of Code of Criminal Procedure alone was contemplated. Sub-section (1) of Section 357 corresponds to Section 545(1) of Code of Criminal Procedure of 1898. Sub-section (2) of Section 357 is verbatim reproduction of sub-section (2) of Section 545. Sub-section (3) and (4) of Section 357 are new provisions. While Code of Criminal Procedure 1973 was enacted, sub-section (3) was enacted for the first time, empowering the court to award compensation, when fine does not form part of the sentence. That provision was not there originally. If fine forms part of the sentence, the compensation could be awarded under the 1898 Code only as provided under sub-section (1), viz either full or part of the fine. If fine forms part of the sentence, there cannot Crmc 2083/11 & conn.cases 48 be an award of compensation under sub-section (3) of Section 357. Compensation under sub- section (3) of Section 357 could be awarded only if fine does not form part of the sentence. Therefore, as corresponding provision to sub-section (3) of Section 357 of the 1973 Code was not there in the 1898 Code of Criminal Procedure, the object and reasons does not make mention of compensation awarded under sub-section (3) of Section 357 of 1973 Code in clause 28.9 and 28.10 quoted earlier. Therefore, the argument of the learned counsel appearing for the petitioner that as the objects and reasons does not show the intention to include sub-section (3) of Section 357 of Code of Criminal Procedure, in the proviso to Section 421 of Code of Criminal Procedure, when compensation is awarded under Section 357 (3) of Code of Criminal Procedure and when Crmc 2083/11 & conn.cases 49 default sentence is also provided and the offender has undergone the default sentence, compensation cannot be recovered thereafter under Section 421 of the Code, cannot be accepted. As stated earlier, compensation awarded under Section 357(3) of Code of Criminal Procedure could be recovered, as money payable under Section 421, as mode of recovery is not otherwise provided, by virtue of Section 431 of the Code. If there is no proviso to Section 421 of Code of Criminal Procedure, the compensation could definitely be recovered even if the offender has undergone the default sentence. Therefore, if the award of compensation under Section 357(3) is not a sentence at all, proviso itself has no application. If so, even if the default sentence is undergone, the compensation payable under sub-section (3) of Section 357 of Code Crmc 2083/11 & conn.cases 50 of Criminal Procedure is recoverable as provided under Section 421, in view of Section 431 of Code of Criminal Procedure.
27. In view of the said findings, we agree with the view taken by learned Single Judge in Saji Kumar's case (supra). If compensation is awarded either under sub-section (1) or sub- section (3) of Section 357 of Code of Criminal Procedure, even if the offender has undergone the default sentence, no special reasons are necessary to be recorded to realise the compensation. It is recoverable under Section 421 of Code of Criminal Procedure. Special reasons are necessary, only in other cases, if the offender has already undergone the default sentence for non payment of fine and the court considers it necessary to realise the fine. In such cases, necessarily while issuing the distress warrant, Magistrate has to record Crmc 2083/11 & conn.cases 51 special reasons, before issuing the warrant. If what is sought to be realised is either part of the fine payable as compensation as provided under sub-section (1) or compensation as provided under sub-section (3) of Section 357 of Code of Criminal Procedure, no special reasons need be recorded to issue the warrant under Section 421. The fact that the offender has undergone the default sentence in such cases does not make any difference.
28. The fact that an offender has undergone the default sentence for non payment of compensation awarded under Section 357(3) of Code of Criminal Procedure will not wipe out the compensation awarded. The complainant or the injured to whom the compensation is awarded is entitled to realise the same, in spite of the default sentence undergone. By virtue of the provisions of Section 431, the compensation Crmc 2083/11 & conn.cases 52 so awarded is to be recovered as provided under Section 421 of Code of Criminal Procedure. In spite of the defaut sentence undergone, the court is competent to issue warrant for recovery of the compensation. No special reasons are to be recorded for issuing the warrant. The question referred is answered accordingly.
29. That exactly is the case in Crl.R.P.No.2397 of 2011 and Crl.R.P.No.2398 of 2011. Though the accused has undergone the default sentence, for non payment of the compensation either wilfully or due to the absence of means, the compensation could be realised by recourse to Section 421 read with Section 431 of Code of Criminal Procedure. We find no reason to interfere with the orders of the learned Magistrate. Crl.R.P.No.2397 of 2011 and Crl.R.P.No.2398 of 2011 are dismissed.
Crmc 2083/11 & conn.cases 53
30. Though learned counsel appearing for the petitioner in the Crl.M.C vehemently argued that as the petitioner had already undergone the total period of sentence, which he would have suffered, if he has not preferred a revision or in the revision, the sentence was not modified, that does not make any difference while considering the question whether the compensation awarded under Section 357(3) of Code of Criminal Procedure could be realised after the accused has undergone the default sentence. In view of the earlier findings, even though petitioner has undergone the default sentence, as the compensation is payable under Section 357(3) of Code of Criminal Procedure, a warrant could be issued for its recovery. Crl.M.C.2083 of 2011 is also dismissed. The learned counsel submitted that the injured have not sought realisation of the compensation Crmc 2083/11 & conn.cases 54 awarded. It is clarified that if the injured reports to the court that he/they do not intend to realise the compensation, pursuant to the distress warrant, Magistrate is competent to withdraw the warrant issued.
M.SASIDHARAN NAMBIAR, JUDGE.
P.BHAVADASAN, JUDGE.
lgk