Andhra HC (Pre-Telangana)
V. Prasada Rao vs The State Of A.P. And Anr. on 23 August, 2001
Equivalent citations: 2001(2)ALD(CRI)566, 2001(2)ALT(CRI)348, 2002CRILJ395
ORDER T. Ch. Surya Rao, J.
1. A short but important question that often crops up for consideration has arisen for determination in this petition. Whether the order of compensation passed by the Court can be stayed pending adjudication of the appeal is the seminal question.
2. Under the impugned order, the learned Sessions Judge suspended the sentence of imprisonment passed in the judgment against the accused on condition of payment of fine and continuance of cash security already furnished. The learned Judge further directed that the order, directing payment of compensation of Rs. 5,60,000/- to be suspended subject to the condition of furnishing third party security. The petitioner is now assailing that part of the order whereunder the Court below directed the petitioner to furnish third party security for suspending the order directing payment of compensation.
3. Compensation can be ordered to be paid by the Court under Section 357 of the Criminal Procedure Code (for short "the Code"). For brevity and better understanding of the matter, it is expedient here to extract Sectioin 357 of the Code, in so far as is relevant for the present purposes thus;
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, recoverable by such person in a Civil Court;
(c)and(d) ...
2. If the fine is imposed in a case which is a subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.
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.
4. and 5...
4. According to Sub-section (1) of Section 357 when a Court imposes a sentence of fine, or a sentence of imprisonment including sentence of death of which fine forms a part, the Court may direct that the whole or any part of the fine to be recovered to be applied, firstly, for defraying the expenses incurred in the prosecution, and secondly, for payment of compensation for the loss or injury sustained by the injured victim. Under Sub-section 3 thereof, the Court can also direct compensation to be paid which is unlimited as may be specified in the order, but such direction can be granted only when the sentence of fine is not imposed. Once the sentence of fine is imposed, the compensation can be granted only from out of the fine, but not otherwise.
5. Sub-section (2) of Section 357 says that if such an order of fine is imposed in accordance with Sub-section (1) thereof, that payment shall not be made before the period allowable under law for preferring the appeal, and if the appeal is filed before judgment in the appeal is pronounced. In other words Sub-section (2) of Section 357 operates as an automatic stay for payment of compensation. This stay operates firstly after the pronouncement of the order during the limitation period within which the appeal is to be filed and if the appeal is filed, it continues to operate till the disposal of the appeal.
6. The next question germane for consideration is whether this Stay under Sub-section (2) of Section 357 of the Code applies to the compensation granted in Sub-section (3) of the Code or not.
7. Going by ostensible meaning of Sub-section (2) of Section 357 of the Code it is obvious that if fine is imposed against the accused in a case which is subject to appeal the section operates as a stay for payment of that fine. Sub-section (2) therefore refers to Sub-section (1) of Section 357 of the Code. However Sub-section (3) is couched in a different language. It reads that if the Court does not impose a sentence of fine it may order accused person to pay such amount as may be specified in the order by way of compensation. In other words it is unlimited. Therefore, it may appear that Sub-section (2) has no application to the compensation granted under Sub-section (3). However, on a critical examination of the provisions, the object behind the same, and other cognate sections germane in the context for consideration the situation would appears to be altogether different.
8. The fine amount imposed by the Court as a sentence shall have to be recovered in the first instance so that the whole of the said amount or part of it can be applied towards expenses and towards compensation. The Code clearly envisages recovery of fine amount. The execution, suspension, remission and commutation of sentences passed by a criminal Court is envisaged under Chapter XXXII of the Code. It is in four parts. Part A deals with the death sentences, Part B deals with imprisonment, Part C with levy of fine and Part D deals with general provisions regarding execution. Coming in the realm of Part C Section 421 envisages the procedure of recovery of fine. There has been no specific provision for recovery of compensation awarded by the criminal Court. If the compensation awarded is from out of the fine amount there is no difficulty. However, under the general provisions of Part D Section 431 covers the field. It is a residuary provision, which caters to the above piquant situation. It is expedient to extract the same hereunder thus :
Section 431 : Money ordered to be paid 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.
8-A. Perusal of the said provision shows any money payable by virtue of an order of the Court other than the fine amount shall be recoverable as if it were a fine. Therefore, the compensation granted under Sub-section (3) of Section 357 is recoverable as if it were a fine. For such recovery we have to fall back only under Section 421 of the Code. It is obvious that be it compensation awarded from out of the fine either in whole or in part under Sub-section (1) or be it compensation awarded under Sub-section (3) of Section 357 of the Code recovery of such amount shall be only in accordance with the provisions of Section 421 of the Code.
9. The object of granting compensation is one and the same under these provisions. When the order of compensation granted under Sub-section (1) gets automatically stayed in the event of filing an appeal there is no reason as to why the stay shall not operate in respect of the compensation granted under Sub-section (3) of Section 357 of the Code. Merely because Sub-section (2) is coming under Sub-section (1) and speaks of fine imposed by the Court in an appealable case the benefit of the stay engrafted under the section cannot be restricted to Sub-section (1) alone nor its application be excluded to the provisions of Sub-section (3) thereof. It is manifest now even the compensation granted under Sub-section (3) of Section 357 shall have to be recovered only as if it were a fine. Consequently the stay engrafted under Sub-section (2) in my considered view equally applies to the compensation granted under Sub-section (3) of Section 357 of the Code. It is not a case of suspending the sentence of fine where it is open to the Court to impose a condition either for deposit of a part of the fine amount or for such condition as is appropriate in the context, Section 357, which enables the Court to grant compensation, inheres in itself a bar for such payment of compensation under Sub-section (2) which operates automatically. Imposing a condition in this regard has not been clearly envisaged by that Section. Oblivious of the legal position the learned Judge directed the petitioner to furnish third party security.
10. For the foregoing reasons the impugned order is modified only to that extent and the petition is allowed in the threshold.