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3. The respondent herein filed an application u/s 421/431 CrPC seeking attachment and sale of movable and immovable properties of the revisionist herein in order to realize the amount of compensation and together with the application a list of properties was also annexed. Now comes the impugned order dated 29.07.2012, whereby the warrant of attachment of the property of the petitioner was issued, to be executed by the concerned SDM as per law. It is this order, which has been assailed by the revisionist on various counts, first and foremost of which is whether the Ld. Trial Court was empowered to issue warrant of attachment in terms of Section 421 CrPC. It is submitted that the procedure adopted is wrong as what ought to have been done was a certificate was to be issued calling upon the Collector to recover the amount of compensation as arrears of land revenue. Thus, the crux of the grievances is the issuance of warrant of attachment of the movable and immovable properties of the revisionist through SDM, which was beyond the powers of the Ld. Magistrate.

7. The issues emerging for consideration are ____ what is compensation ? Whether it can be recovered even and if so how. In case the accused fails to pay then what would be the mode of realization ?

Secondly, in case the accused has undergone sentence of imprisonment in default of payment of compensation whether still the compensation can be recoverable ?

8. The facts bring in Section 357 CrPC particularly sub Section 3 of Section 357 together with 431, 421 CrPC into the picture. The word 'compensation' is capable to incorporate in itself the inherent idea of providing some solace or indemnification to the victim and not to really penalize the accused. It may be the case that the compensation, as it has to come from the accused, thus, it may appear to him as one or the other kind of penalty. Nevertheless, fundamental idea in awarding the compensation remains intact. There is no dispute about the fact that the Ld. Trial Court had awarded compensation of Rs. 11 lakhs to the complainant/respondent. Under going sentence in default can whether wipe it out or not is to be seen. Albeit, it appears that the revisionist has also undergone the period of Simple Imprisonment, which was ordered by the court in default of payment of compensation, thus, the respondent on the face of it cannot realize the compensation. But then the inherent idea of compensating the victim remains unsatisfied. As such, the proposition does not seems to be correct that compensation is not to be paid. Although, the Ld. counsel for the revisionist has argued that fine and compensation is one and the same thing and as a person undergoes the period of punishment in default of payment of fine. Similarly, the period undergone in default of payment of compensation should free him from the liability in respect of compensation, as is the case with the payment of fine. In such circumstances, the compensation also cannot be recovered. However, the preposition seems otherwise as compensation is entirely on a different footing, thus, notwithstanding the fact that the person concerned has undergone imprisonment in default, still compensation can be realized as that only would have been the idea of the legislature qua the welfare measure towards the victim.

9. It is further contended by the counsel for the revisionist that no show cause notice was given to the revisionist as in that case he would have opted to pay the compensation instead of remaining in jail. The show cause notice contemplated in Section 421 CrPC was very much served upon the revisionist, albeit, not during the period of sentence or before it started. Therefore, this contention has no legs to stand upon. The other side of the coin is that the revisionist was fully aware, being uneducated man, therefore, he could have gone for the payment of the compensation in order to avoid the sentence in default. The judgments relied upon by the Ld. counsel for the revisionist deal with the aspect of fine and to the effect that where the period of sentence in default of payment of fine has been undergone, the accused in such circumstances cannot be compelled to pay the amount of fine. Ld. counsel for the revisionist could not show that the fine and compensation are to be treated at par on the same footing except for the purpose of realization of the amount of compensation. It only provides a mode and does not in any manner diminishes the true import of compensation.

" 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".

11. Thus, it is evident that fine and compensation are two different things although the method of recovery may be same. As the Ld. Magistrate has not followed the mandate of Section 421 CrPC, therefore, the impugned order, whereby he himself has assumed the responsibility of having the compensation realized through attachment of property through SDM is not in consonance with the provision. The collector and the SDM may substitute each other but it is for the collector as per Section 421 CrPC to have especially in view of the proviso to sub section 1 of Section 421 CrPC, where a clear distinction have been made qua the compensation and court has been called upon to issue a certificate.