Gujarat High Court
Niraj Devnarayan Shukla & 2 vs State Of ... on 12 March, 2015
Author: Anant S.Dave
Bench: Anant S. Dave, G.B.Shah
R/CR.A/1564/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1564 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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NIRAJ DEVNARAYAN SHUKLA & 2....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR KB ANANDJIWALA, ADVOCATE for the Appellant(s) No. 1 - 3
MR JK SHAH ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 12/03/2015
Page 1 of 27
R/CR.A/1564/2009 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. The appellants, original accused in Sessions Case No. 350 of 2007 have preferred this appeal challenging the judgement and order of conviction dated 4.8.2009, by which, appellant No.1 is convicted and sentenced to suffer RI for 14 year under Section 304 (B) (2) of Indian Penal Code and to suffer RI for 10 years and to pay a fine of rs.10,000/-, in default further SI for 2 years under Section 306 of Indian Penal Code. Appellant No.1 is also convicted for the offence under Section 4 of Dowry Prohibition Act and sentenced to suffer RI for one year and to pay a fine of Rs.5,000/- in default, further SI for 6 months. Appellants No. 2 and 3 were also convicted under Section 304 (B) (2) of Indian Penal Code and sentenced them to suffer RI for 10 years out of which first 3 years are RI and the remaining sentence to undergo SI and also convicted under Section 306 of Indian Penal Code and sentenced to suffer SI for 7 years and to pay a fine of Rs.5,000/- in default of payment of fine of further SI for one year. That offence under Section 4 of Dowry Prohibition Act they are ordered to undergo SI for one year and to pay a fine of Rs.1,000/- in default further SI for three months. No separate sentence is imposed by learned Judge for conviction under Sections 323 and 498A of Indian Penal Code. The learned Judge has further ordered to run all sentence of all accused concurrently and out of the fine amount learned Jude has ordered to pay Rs.25,000/- by Page 2 of 27 R/CR.A/1564/2009 CAV JUDGMENT way of compensation and rest of the amount to be paid by the Government.
2. The short facts of the case are that, Deepaben d/o the first informant chandrashekhar Sukhram got married with the appellant No.1 as per the caste customs and rites on 13.12.2006 and since then Deepaben was staying at her matrimonial home along with the accused persons. It is the prosecution case that the accused persons were taunting her by saying that her parents were beggars and they have not given anything in marriage. Regarding the house-hold matter in a petty matter they used to criticize and thereby causing mental and physical harassment. It is also alleged that by way of dowry, a demand was made of Splendor Motorcycle and the amount of Rs.2.00 lacs was demanded for purchasing a shop and house repairing. For bringing dowry, they used to pressurize her and also causing mental and physical harassment. As a result, on 3.5.2007 at abut 10 a.m. Deepaben committed suicide by setting her ablaze. The appellant No.2 removed her to the hospital after extinguishing the fire, where the treatment was given and at 12.30 p.m. she was declared dead by the Doctors.
2.1. The first informant Chandrashekhar Shukhram P.W.5 Exh.28 lodged his FIR at Bapunagar Police Station. He went to the Police Station for lodging the FIR and he was accompanied by all his sons. On the strength of the said Page 3 of 27 R/CR.A/1564/2009 CAV JUDGMENT FIR the offence was registered at 2.35 p.m. for the offences punishable under sections 306, 304(B), 498A, 323, 114 of Indian Penal Code and also under Section 3 and 7 of the Dowry Prohibition Act and under Section 31 of the Domestic Violence Act, 2005. The investigation was thereafter conducted by holding an inquest at 4.00 p.m. It is pertinent to note at this stage that in the inquest report, though the Fir was lodged at 2.35 p.m. no C.R. Number has been mentioned. In all probability it becomes clear that the offence would not have been registered by that time and subsequently at a belated stage the FIR was lodged. The report under Section 157 of Cr.P.C. was received by the Magistrate at 11:30 a.m. on the following day. The Investigating Officer thereafter drew the scene of offence Panchnama and recorded the statements of various persons including the family members who are examined in this case. The muddamal was sent to the FSL and on receipt of the report of muddamal, the investigation was concluded and the charge-sheet was submitted. As the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions which was numbered as Sessions Case No. 350 of 2007.
3. Upon framing of the charge on the accused persons for the offence mentioned as above, the prosecution examined as many as 10 witnesses and other documentary evidences and ordered conviction and Page 4 of 27 R/CR.A/1564/2009 CAV JUDGMENT sentence. This appeal under Section 374 of Indian Penal Code is admitted on 1.9.2009 and was taken up for final hearing.
4. Upon hearing Mr. K.B.Anandjiwala, learned counsel for the appellants and Mr. J.K.Shah, learned APP and order dated 16.9.2014 passed earlier it is borne out that appellant No.1 is absconding pursuant to first furlough leave granted by competent authority under Parole and Furlough Rules in view of completion of two years of imprisonment by the convicts after conviction. The accused was to report to jail authority on 3.1.2012 on completion of 14 days of furlough and failed to report the jail authority and further he has absconded and not available. However appellant No.1 is represented by his counsel. That affidavit of original Appellant No.3 namely father of appellant No.1 is filed which reads as under:
"That, I Ramakanti Devnarayan Shukla [original appellant No.3] aged about 62 years residing at 526/3222, Gujarat Housing Board, New Bapunagar, Ahmedabad; do hereby solemnly affirm and state on oath;
1. I state that along with me 2 other appellants have preferred the above captioned appeal before this Hon'ble High Court challenging the judgment and order passed by learned Sessions Page 5 of 27 R/CR.A/1564/2009 CAV JUDGMENT Judge, Ahmedabad on 4.8.2009 convicting under Section 304 (B), 306, 323, 498(A) read with 114 of Indian Penal Code and under Section 4 of Dowry Prohibition Act. While pending the present appeal, the appellants have preferred an application for suspension of sentence pending appeal. This Hon'ble High Court [Coram Justice K.S.Jhaveri & Justice Z.K.Saiyed] vide judgement and order dated 01/09/2009 released me and appellant No.2 namely Ramakanti D.Shukla and Devnarayan B.Shukla respectively and withdrawn for the appellant No.1 namely Niraj Devnarayan Shukla.
2. That in the year of 2011, the appellant No.1 was released on furlough for the period of 16 years. I further state and submit that the appellant No.1 did not surrender on given date and jumped the furlough and till today I and appellant No.2 do not have any knowledge about the whereabouts of the appellant no.1. That I further state and submit that I and appellant no.2 are originally belong to village Bharamau; post:-
Rasulabad District:- Kanpur (UP) and have agricultural land approximately about 1 ½ vigha. Just before the Diwali, I and appellant No.2 went to our native place and searched about our son (appellant No.1) but there was no fruitful result Page 6 of 27 R/CR.A/1564/2009 CAV JUDGMENT came out.
3. That I and appellant no.2 went to my sister namely Sunitaben who is residing in Vemar Ashram, Samlaya, Vadodara (Gujarat) and my brothers namely Anankumar Dixit and Saileshkumar Dixit, who is serving in bank in Anand and other is serving as teacher in Kishor English School, Kubernagar, Ahmedabad respectively but there also we did not find whereabouts of our son the appellant No.1. That I and appellant No.2 have also searched in almost all the ashrams in Haridwar and Rishikesh but we could not succeeded. That the inquiry was also made from friends of the appellant No.1 as to whether any of them have any news about the whereabouts of the appellant No.1. Therefore, it is respectfully stated and submitted that I and appellant No.2 have tried all the possible ways that we could but we did not find out the whereabouts of our son who is original appellant no.1."
5. Learned APP raised preliminary objections about hearing of this appeal finally on the ground that accused appellant No.1 and accordingly other appellants No.2 and 3 are not entitled to be heard on the ground that accused No.1 is not available and is absconding since 3.1.2012 and Page 7 of 27 R/CR.A/1564/2009 CAV JUDGMENT it submitted that a person namely, convict in this case has no regard for rule of law and right to be heard in Criminal Appeal against conviction under Section 374 of Criminal Procedure Code, 1973 and until and unless appellant No.1 reported to jail authority or surrenders before this Court, no order be passed in appeal.
6. In support of his submissions reliance is placed on decisions of this Court reported in the case of (1) Mahendra Bhogilal Tadvi vs. State of Gujarat [2008 (3) GLH 622] by Division Bench of this Court (Coram:
Hon'ble Mr. Justice C.K. Buch and Justice D.N. Patel, as his lordship then was) taking a view that appeal against order of conviction and sentence preferred under Section 374 of Code of Criminal Procedure, 1973 when the appellant/convict was absconding upon grant of temporary bail and not reporting on the date of hearing of the appeal it was held that those who were expecting their criminal appeals against conviction to be heard on merits, cannot remain absconding and even convict remaining in jail for considerable length of period of conviction is no ground for absconding convict that his criminal appeal ought to be heard on merits, even if his absconding. Appeal came to be dismissed in the above case only on the ground that accused/convict was absconding. The bench also considered right of hearing of appeal in the context of constitutional provisions including Article 51- A(a). In the above decisions Division Bench relied on a Page 8 of 27 R/CR.A/1564/2009 CAV JUDGMENT decision reported in Daya Shankar Singh vs. State of Bihar [2005 CRI. L.J. 482] and finally dismissed the appeal only on the ground that the appellant/convict was absconding. (2) In the case of Mohmad Sharif Gulammahmad vs. State of Gujarat [2009 (3) Crimes (HC) 598] was a case about accused who was absconding and Criminal Appeal was filed against the conviction. In a case which was arising out of property attached by issuing proclamation in accordance with provisions of Sections 82, 83, 84, 85 of Code of Criminal Procedure, 1973 on which Division Bench relied on Mahendra Bhogilal Tadvi (supra) and also Daya Shankar Singh (supra) and directions were issued in paragraphs 5 as under:
"5. Hence, following order:
I. Non-bailable warrant shall be issued against the appellant-convict who is reported absconding, so as to bring him to the custody/jail. The Director General of Police shall assign the work of enforcement of the warrant to the concerned Police Officer not below the rank of P.I. For tracing the accused and to put him to the custody. If the appellant-convict is not found inspite of the effort by the police, his property shall be attached and the appropriate action shall be taken for attachment and disposal of the property as per the Code of Criminal Procedure.Page 9 of 27 R/CR.A/1564/2009 CAV JUDGMENT
II. The officer who may be marked by the Director General of Police will also undertake the aforesaid action for attachment and for disposal of the property in accordance with law.
III. The report shall be submitted for compliance to the aforesaid direction by the Director General of Police to this Court within a period of 6 months from today and such report shall be placed before the Registrar(Judicial) of this Court. If the Registrar(Judicial) is of the view that the proper action is not taken, he will place the matter before the Court, taking up conviction appeal where the sentence is 10 years and above, for appropriate orders.
IV. In the event, the appellant-convict surrenders to the jail or he is put to the custody by putting him in jail, it will be open to him to move this Court for restoration of the appeal, which shall be considered in accordance with law."
(3) In the case of Ganeshbhai Virji Rabari vs. State of Gujarat decided on 17.2.2009 in Criminal Appeal No. 8\918 of 2001 the Division Bench (Coram: Hon'ble Mr. Justice Jayant Patel and Mr. Justice Rajesh H. Shukla) relied on para 9 of the judgement and held as under:
"9. Hence, the following order:
I) Non-bailable warrant shall be issued against the Page 10 of 27 R/CR.A/1564/2009 CAV JUDGMENT appellant-convict who is reported absconding, so as to bring him to the custody/jail. The Director General of Police shall assign the work of enforcement of the warrant to the concerned Police Officer not below the rank of P.I. for tracing the accused and to put him to the custody. If the appellant-convict is not found inspite of the effort by the police, his property shall be attached and the appropriate action shall be taken for attachment and disposal of the property as per the Code of Criminal Procedure.
II)The officer who may be marked by the Director General of Police will also undertake the aforesaid action for attachment and for disposal of the property in accordance with law.
III)The report shall be submitted for compliance to the aforesaid direction by the Director General of Police to this Court within a period of 6 months from today and such report shall be placed before the Registrar(Judicial) of this Court. If the Registrar(Judicial) is of the view that the proper action is not taken, he will place the matter before the Court, taking up conviction appeal where the sentence is 10 years and above, for appropriate orders.Page 11 of 27 R/CR.A/1564/2009 CAV JUDGMENT
IV)In the event, the appellant-convict surrenders to the jail or he is put to the custody by putting him in jail, it will be open to him to move this Court for restoration of the appeal, which shall be considered in accordance with law."
6.1. Learned APP has also pressed into service decision in the case of Bani Singh & Ors. vs. State of U.P. [AIR 1996 SC 2339 (1)] whereby it is held in paragraphs 14, 15, 16 and 17 as under:
"14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo's case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non- prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the Page 12 of 27 R/CR.A/1564/2009 CAV JUDGMENT appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfyiny itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav's case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.
15. Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and Page 13 of 27 R/CR.A/1564/2009 CAV JUDGMENT place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion Page 14 of 27 R/CR.A/1564/2009 CAV JUDGMENT and we say so with respect, that the Division Bench which decided Ram Naresh Yadav's case did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent.
16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the Court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation is there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted."Page 15 of 27 R/CR.A/1564/2009 CAV JUDGMENT
6.2. Learned APP relied on the decision of High Court of Delhi at New Delhi in Criminal Appeal No. 250 of 1997 Mahavir vs. State dated 15.3.2010 (Coram: Hon'ble Mr. Justice A.K.Sikri and Hon'ble Mr. Justice Ajit Bharihoke) in which the appellant failed to surrender, who was released on temporary bail for a period of 60 days even after expiry of period during pendency of appeal, where the Court found that such a conduct on the part of a convict to abscond by committing breach of conditions of interim bail as outrageous in utter defiance of rule of law and abuse of the process by convict to defeat criminal justice system was deprecated and a course of action was taken by dismissing the appeal of absconding accused.
"We are faced with a similar situation and follow the same course of action and exercise the inherent powers of the High Court which are conferred by Section 482 of the Cr.P.C. and dismiss the appeal as it is manifestly an abuse of the process of the Court. Far from securing the ends of justice their pendency or disposal on merits will indubitably defeat the ends of justice."
6.3. Learned APP has also drawn our attention to two decision of Division Bench (1) in the case of Rajubhai Jangubhai Rathwa vs. State of Gujarat, CAV Judgement dated 6.9.2012 in Criminal Appeal No. 369 of Page 16 of 27 R/CR.A/1564/2009 CAV JUDGMENT 2006 (Coram: Hon'ble the Chief Justice and Hon'ble Mr. Justice J.B. Pardiwala) and (2) in the case of Bhimsingbhai Varjubhai Rathwa & Anr. vs. State of Gujarat, CAV Judgement dated 25.7.2012 in Criminal Appeal No. 1066 of 2006 (Coram: Hon'ble the Chief Justice and Hon'ble Mr. Justice J.B. Pardiwala), noticed that decision in the case of Mahendra Bhogilal Tadvi (supra) and other such decisions were per incurrium in view of law laid down by the Apex Court in the case of Dilip S Dahanukar vs. Kotak Mahindra Co. Ltd. & Anr. [AIR 2007 SC (Supp) 1345] whereby it was held that appeal being indisputably a statutory right and an offender who has been convicted is entitled to avail the right of appeal which is provided under Section 374 of the Code of Criminal Procedure and accordingly right of appeal from a judgement of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a fundamental right. Thus, according to said decision right of appeal, can neither be interfered with or impaired, nor can it be subjected to any condition.
7. In the above decision the Apex Court relied on earlier decisions in the case of Garikapati Veeraya vs. N. Subbiah Choudhry and Ors. [AIR 1957 SC 540] and Division Bench of our High Court in para 10.5 reproduced observations of the Supreme Court relevant for the purpose of deciding the aforesaid preliminary objection Page 17 of 27 R/CR.A/1564/2009 CAV JUDGMENT raised by respondent-State, which reads as under:
"10.5 The following observations of the Supreme Court are relevant for the purpose of deciding the aforesaid preliminary objection raised by Mr. Raval:
"12. An appeal is indisputably a statutory right and an offender who has been convicted is entitled to avail the right of appeal which is provided for under Section 374 of the Code. Right of Appeal from a judgment of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a Fundamental Right. Right of Appeal, thus, can neither be interfered with or impaired, nor it can be subjected to any condition.
13. We may take notice of some of the decisions operating in the field in this behalf.
14. In Garikapati Veeraya vs. N. Subbiah Choudhry and Ors. [AIR 1957 SC 540], this Court opined: "(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.Page 18 of 27 R/CR.A/1564/2009 CAV JUDGMENT
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
(Emphasis supplied by us)."
In para 10.6, 10.7 and 10.8 it further held as under:
"10.6 In view of the aforesaid decision of the Supreme Court, we are unable to accept the view taken by the Division Bench of this Court that an appeal can be dismissed if the appellant is absconding.Page 19 of 27 R/CR.A/1564/2009 CAV JUDGMENT
10.7 We are conscious of the position of law that a Division Bench, if it wants to disagree with the view earlier taken by another Division Bench, should refer the matter to a larger Bench. However, the law is equally settled that if the earlier Division Bench, in ignorance of a valid, binding precedent passes any order, the later Division Bench, by relying upon the binding precedent of the superior Court, can take a different view and in such a case, there is no necessity of referring the matter to a larger Bench. The position, however, would have been different if the earlier Division Bench took note of the superior Court's decision and interpreted the same in a different way. In such a situation, the later Division Bench should refer the matter to a larger Bench if it is unable to agree with the view of the earlier Division Bench interpreting the judgment of the superior Court.
10.8 In the case before us, the earlier Division Bench not having even taken note of the decision of the Apex Court, there is no question of referring the matter to a larger Bench."
7.1. In the case of Rajubhai Jangubhai Rathwa (supra) similar view is taken by same Division Bench and relied on the decision of Dilip S Dahanukar (supra).
Page 20 of 27 R/CR.A/1564/2009 CAV JUDGMENT8. In view of submissions made by learned APP about law laid down by Division Bench taking a view about applicability of ratio decidendi in the case of Dilip S Dahanukar (supra) by the Apex Court holding an appeal under Section 374 of Cr.P.C. is indisputably a statutory right and affecting the liberty of the person and, therefore, also a fundamental right and such right of appeal can neither be interfered with nor impaired, nor it can be subjected to any condition rendered in the context of provisions of Sections 138 and 141 of Negotiable Instrument Act, 1881 about conviction for dishonoured cheque and order of compensation vis-a-vis Section 357 of Cr.P.C. can be made applicable ipso facto having shown utter disregard to rule of law and justice delivered system by abusing process of law as held by two decision in the case of Mahendra Bhogilal Tadvi (supra) and Daya Shankar Singh (supra). Learned APP would also contend that in the case of Dilip S Dahanukar (supra), the Apex Court was confronted with interpretation of sub section (1) and (3) of Section 357 of Cr.P.C. Sub Section (1) provides for application of an amount of fine while imposing a sentence of which fine forms a part; whereas sub Section (3) calls for a situation where a Court imposes a sentence of which fine does not form a part of the sentence. Compensation is awarded towards sufferance of any loss or injury by reason fo an act for which an accused person is sentenced. Although it provides for a Page 21 of 27 R/CR.A/1564/2009 CAV JUDGMENT criminal liability, the amount which has been awarded as compensation is considered to be recourse of the victim in the same manner which may be granted in a civil suit.
"The fine can be imposed only in terms of the provisions of the Act. Fine which can be imposed under the Act, however, shall be double of the amount of the cheque which stood dishonoured.
When, however, fine is not imposed, compensation can be directed to be paid for loss or injury caused to the complainant by reason of commission of the offence. Clause (b) of sub- section (1) of Section 357 only provides for application of amount of fine which may be in respect of the entire amount or in respect of apart thereof. Sub-section (3) of Section 357 seeks to achieve the same purpose.
We must, however, observe that there exists a distinction between fine and compensation, although, in a way it seeks to achieve the same purpose. An amount of compensation can be directed to be recovered as a 'fine' but the legal fiction raised in relation to recovery of fine only, it is in that sense 'fine' stands on a higher footing than compensation awarded by the Court.
If, therefore, under sub-Section (2) of Section 357, Page 22 of 27 R/CR.A/1564/2009 CAV JUDGMENT realization of fine, at least in respect of the facto(s) enumerated in clause (1) of sub-section to be stayed automatically, we see no reason as to why the legislative intent cannot be held to apply in relation to amount of compensation directed to be paid in terms of sub-section (3).
It does not appeal to us that although a compensation payable out of the quantum of fine would remain stayed under sub-section (2) of Section 357 of the Code, if a compensation is directed to be paid under sub-Section (3) thereof the same would not attract the said provision....
Clause (b) of sub-section (1) of Section 357 and sub-Section (1) of Section 357 and sub-Section (3) of Section 357 seek to achieve the same purpose. What is necessary is to find out the intention of the law maker and the object sought to be achieved. Sub-section (2) of Section 357 uses the word 'fine'. It does not say that what would be stayed i.e. application of fine. Sub-section (2) of Section 357, in our opinion, does not contemplate any other interpretation....
If realization of an amount of compensation payable to a victim as envisaged under Clause (d) of sub-Section (1) of Section 357 is to be stayed Page 23 of 27 R/CR.A/1564/2009 CAV JUDGMENT under sub-Section (2) thereof, there is no reason why the amount of compensation payable in terms of sub-section (3) shall not receive the same treatment."
9. The Apex Court also examined purpose of factors to be considered for imposition of fine and compensation which has to be reasonably and nor arbitrary and capacity of the accused to pay such compensation must also be judged and jurisdiction to impose compensation cannot be exercise at the whims and caprice of a judge and a criminal case is not a substitution for a civil suit etc. and order to pay compensation in addition to fine it was held that power of Magistrate do not prevail for awarding compensation in addition to fine and for a penal statue it must be construed liberally.
10. The reliance on the decision in the case of Union of India vs. Chajju Ram [AIR 2003 (5) SCC 568] it is submitted that before considering applicability of decisions to the facts of each case it is necessary to note the caveat sounded by the Apex Court in the above decision and held is para 23 as under:
"23. It is now well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is equally well settled that a little difference in Page 24 of 27 R/CR.A/1564/2009 CAV JUDGMENT facts or additional facts may lead to a different conclusion."
In Haryana Financial Corporation vs. Jagdamba Oil Mills, (2002) 3 SCC 496 (para 19) also, the Apex Court has made the following pertinent observations :-
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. The observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes."
11. Thus, it is submitted that even fundamental right guaranteed to citizen and a person under Part-III of the Constitution of India including Article 21 are subject to reasonable restriction and that protection to the appellant/convict who has defied rule of law, namely jumped and/or committed breach or violation of conditions or oder of suspending sentence or grant of bail may be temporary or even executive order granting the accused convicting on furlough, parole or otherwise under furlough and parole rules or under provisions of the Prison Act can be extended to such a convict without surrendering before the Court or reporting to jail authority and till then no Page 25 of 27 R/CR.A/1564/2009 CAV JUDGMENT appeal is to be heard or alternatively appeal of such absconding convict to be dismissed on such ground alone can be said to be a condition impairing or infringing statutory right of appeal and fundamental right to life and liberty under Article 21 of the Constitution of India. It is submitted that what was held in the context of factual scenario arising out of provisions of section 138, 141 of Negotiable Instrument Act, 1881 vis-a-vis Sections 357 about compensation to victim and 374 of Cr.P.C about statutory right of appeal by a convict can simply be made applicable in the facts of present case whereby case of the prosecution is accepted by learned Sessions Judge beyond reasonable doubt where appellants are convicted for Section 304 (B)(2) of Indian Penal Code.
12. Considering overall considerations of facts and law, we find submissions of learned APP appearing for the State of Gujarat and which persuade us to refer the issue being following question of law to be answered by the larger bench namely:-
(1) Whether law laid down by the Division Bench of this Court in case of Rajubhai Jangubhai Rathwa (supra) and Bhimsingbhai Varjubhai Rathwa & Anr. (supra) is correct law holding that Criminal Appeal under Section 374 of Cr.P.C. filed by a convict who is absconding at the time of final hearing to be heard on merit by applying law laid down in the case of Dilip S Dahanukar (supra) in Page 26 of 27 R/CR.A/1564/2009 CAV JUDGMENT the context of interpretation of Section 357 of Cr.P.C.
about payment of compensation to victim in a case arising out of Sections 138 and 139 of Negotiable Instrument Act holding that Criminal Appeal under Section 374 of Cr.P.C. is a statutory as well as fundamental right affecting liberty of a person guaranteed under Article 21 of the Constitution of India and that it cannot be impaired with or curtailed in any manner or subjected to any condition and further holding that above decision was not considered in the case of Mahendra Bhogilal Tadvi (supra) by earlier Division Bench and law laid down in the case of Mahendra Bhogilal Tadvi (supra) is therefore, per incurrium.
13. Accordingly, we direct the Registry to place this appeal before Hon'ble the Acting Chief Justice, so as to place it before the Larger Bench, as deemed fit and proper by His Lordship.
(ANANT S.DAVE, J.) (G.B.SHAH, J.) SMITA Page 27 of 27