VIJAYAN Vs SADANANDAN K. & ANR.
Case number: Special Leave Petition (crl.) 3220 of 2008
IN THE SUPREME COURT OF INDIA CIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (Crl.)No.3220 of 2008
Vijayan … Petitioner Vs.
Sadanandan K. & Anr. … Respondents
J U D G M E N T
ALTAMAS KABIR, J.
1. In this Special Leave Petition we are called
upon to consider whether a default sentence can be
imposed when compensation is awarded under Sub-
Section (3) of Section 357 of the Code of Criminal
Procedure.
2. In the instant case, the petitioner stood
convicted by the Judicial Magistrate, First Class,
Court-II, Pathanamthitta, of an offence under
Section 138 of the Negotiable Instruments Act,
1881, and sentenced to undergo simple imprisonment
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for one year and to pay a sum of Rs.8,25,000/- as
compensation to the complainant/Respondent No.1
herein under Section 357(3) of the Code of Criminal
Procedure, (Cr.P.C.in short) and in default to
undergo simple imprisonment for a further period of
six months. On appeal (Criminal Appeal
no.41/2006), the Additional District and Sessions
Judge by her order dated 27th March, 2007 confirmed
the judgment of conviction and sentence passed by
the learned Magistrate. In revision, being Criminal
Revision Petition No.1836 of 2007-D, the Kerala
High Court by its judgment dated 28th May, 2007,
while upholding the conviction, modified the
sentence from imprisonment for a year to
imprisonment till the rising of the Court and to
pay a compensation of Rs.8,25,000/- to the
complainant under Section 357(3) Cr.P.C. and in
default to undergo Simple Imprisonment for six
months.
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3. It is the said order of the Kerala High, which
has been impugned in the instant Special Leave
Petition.
4. Dr. K.P. Kailasanatha Pillay, learned Advocate
for the petitioner, questioned the judgment of the
High Court mainly on the ground that the High Court
had erred in law in confirming the default clause
made by the Trial Court while directing
compensation to be paid under Section 357(3)
Cr.P.C. According to Dr. Pillay, though Section
357(1) Cr.P.C., inter alia, provides for the
disbursement of fine imposed by way of
compensation, Sub-Section (3), merely empowers the
Court when it imposes a sentence of which fine does
not form a part, to 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.
Dr. Pillay submitted that in the absence of any
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specific provision with regard to default in
payment of compensation which was distinctly
different from imposition of fine by way of a
penalty, the High court had wrongly confirmed the
default sentence imposed by the learned Magistrate
and upheld by the learned Sessions Judge.
5. Dr. Pillay submitted that according to the
scheme of the Criminal Procedure Code, if any
amount is to be recovered on account of default in
payment of fine, it would have to be done in
accordance with the provisions of Section 421
Cr.P.C. which provides for issue of warrant for the
levy of the amount by attachment and sale of any
movable property belonging to the offender and in
the alternative, by issuance of warrant to the
Collector of the district, authorizing him to
realize the amount as arrears of land revenue from
the movable or immovable property or both, of the
defaulter. Dr. Pillay also urged that the
provisions of Section 431, which is another mode
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for recovery of amounts payable as fine, does not,
however, cover cases involving the recovery of
compensation payable under Section 357(3) and
therefore, the only mode available to the Court to
recover any defaulted amount by way of compensation
is to take recourse to the provisions of Section
421 Cr.P.C.
6. In support of his submissions, Dr. Pillay
referred to the decision of this Court in Dilip S.
Dahanukar v Kotak Mahindra Co. Ltd. & Anr. [(2007)
6 SCC 528], wherein, while considering the
difference between the provisions of Section
357(1)(b) and Section 357(3) Cr.P.C., i.e., the
difference between “fine” and “compensation” this
Court observed that the distinction between Sub-
Sections (1) and (3) of Section 357 is apparent as
Sub-Section (1) provides for application of an
amount of fine towards the purposes indicated while
imposing a sentence of which fine forms a part,
whereas Sub-Section (3) is applicable in a
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situation where the Court imposes a sentence of
which fine does not form a part of the sentence.
This Court went on to observe that when fine is not
imposed, compensation can be directed to be paid
for loss or injury caused to the complainant by
reason of commission of offence and while Sub-
Section (1) of Section 357 provides for application
of the amount of fine, Sub-Section (3) of Section
357 seeks to achieve the same purpose.
7. In this regard, Dr. Pillay also referred to and
relied upon a recent decision of this Court in
Ettappadan Ahammedkutty @ Kunhappu v E.P.
Abdullakoya @ Kunhi Bappu & Anr. in Criminal Appeal
No.1013 of 2007, where the same question as raised
in this Special Leave Petition fell for
consideration and the said appeal was disposed of
by the following order:
“Compensation can be directed to be paid both in terms of sub-section (1) of Section 357 of the Code of Criminal Procedure as also sub-section (3) thereof. However, while exercising jurisdiction
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under sub-section (3) of Section 357, no direction can be issued that in default to pay the amount of compensation, the accused shall suffer simple imprisonment. Such an order could have been passed only in terms of sub-section (1) of Section 357. If the compensation directed to be paid by the Court in exercise of its jurisdiction under sub-section (3) of Section 357 Cr.P.C. is not deposited, the same can be realised as fine in terms of Section 421 of the Code. We are, therefore, of the opinion that that part of the impugned order whereby and whereunder the appellant has been directed to undergo imprisonment for a period of one month, in the event of default to pay compensation under sub-section (3) of Section 357, is set aside. Rest of the order of the High Court is upheld.”
8. Dr. Pillay also referred to and relied on a
Single Bench decision of the Kerala High Court in
Rajendran v Jose [2002 (1) Crimes 653], where it
was held that in order to recover compensation
awarded if it remained unpaid, the Trial Magistrate
could take steps under Section 421 or under Section
431 Cr.P.C. to recover the compensation, but the
order directing the petitioner to undergo
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imprisonment in case of default in payment of
compensation was unsustainable.
9. Dr. Pillay urged that in view of the law as
laid down by this Court in the case of Ettappadan
Ahammedkutty (supra), the High Court was clearly
wrong in upholding the default sentence in case of
non-payment of the compensation amount directed to
be paid.
10. On behalf of the Respondent No.l, it was
submitted by Mr. Raghenth Basant, learned Advocate,
that the judgment of the High Court impugned in
this Petition did not warrant any interference
since the question involved had been settled by
this Court as early as in 1998 in the case of Hari
Singh v Sukhbir Singh [(1998) 4 SCC 551], wherein
it was, inter alia, held that since the imposition
of compensation under Section 357(3) Cr.P.C. was on
account of social concern, the Court could enforce
the same by imposing sentence in default,
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particularly when no mode had been prescribed in
the Code for recovery of sums awarded as
compensation in the event the same remained unpaid.
Mr. Basant also referred to the decision of this
Court in Sugnathi Suresh Kumar v Jagdeeshan [(2002)
2 SCC 420], where the aforesaid views were
reiterated and it was stated in paragraph 11 of the
said judgment as follows :-
“11. When this Court pronounced in Hari Singh v. Sukhbir Singh (supra) that a Court may enforce an order to pay compensation "by imposing a sentence in default" it is open to all Courts in India to follow the said course. The said legal position would continue to hold good until it is overruled by a larger Bench of this Court. Hence learned Single Judge of High Court of Kerala has committed an impropriety by expressing that the said legal direction of this Court should not be followed by the subordinate Courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose 2001 (3) Kerala Law Times 431. It is unfortunate that when the Sessions Judge has correctly done a course in accordance with the discipline the Single Judge of the High Court has incorrectly reversed it.”
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11. It was also urged that the decision in Dilip S.
Dahanukar’s case (supra), referred to on behalf of
the petitioner, had no application to the issues
involved in the present case since in the said case
the issue was whether Sub-Section (2) of Section
357 could be applied in cases where compensation is
awarded under Sub-Section (3) thereof and it was
urged that the provisions of Sub-Section (2) would
be applicable even in cases where compensation is
awarded under Section 357(3). It was submitted
that the said decision was not an authority for the
proposition that default sentence could be imposed
where compensation is awarded under Section 357(3)
Cr.P.C.
12. As far as two other decisions in Ettappadan
Ahamedkutty’s case (supra) and Balraj’s case
(supra), relied on by learned counsel for the
Petitioner, the same did not also deal with the
question as to whether a default sentence can be
imposed when compensation is awarded under Section
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357(3) Cr.P.C., which is the focal question as far
as this case is concerned.
13. Mr. Basant submitted that Section 431 Cr.P.C.
provides that any money (other than a fine) payable
by virtue of any order made under the Code and the
method of recovery of which is not otherwise
expressly provided for, shall be recoverable as if
it were a fine. Mr. Basant submitted that in that
view of the matter, compensation awarded under
Section 357(3) Cr.P.C. could also be recovered
under Section 431 Cr.P.C. read with Section 421
Cr.P.C., which provides the methods for recovery of
fine imposed by the Court from the accused. In
this connection, reference was also made to
Sections 64 to 70 of the Indian Penal Code (IPC),
which empower the Court to impose a default
sentence in case of non-payment of fine. It was
submitted that default sentence is not a
substantive sentence under the IPC and it comes to
an end the moment fine is paid by the accused. It
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was submitted that Section 53 IPC deals with
various punishments that can be imposed on the
accused, but default sentence is not one of the
sentences mentioned in Section 53. Mr. Basant added
that Section 30 Cr.P.C. also recognizes the power
of the Court to impose a default sentence on non-
payment of fine. Referring to the decision of this
Court in Shantilal v State of Madhya Pradesh
[(2007) 11 SCC 243], Mr. Basant submitted that it
had been held in the said case that a default
sentence is not a sentence as such, but a penalty
which a person incurs on non-payment of fine.
Special reference was made to paragraph 31 of the
judgment which reads 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 or in whole either in appeal or in revision or in other appropriate judicial proceedings or ‘otherwise’. A terms of imprisonment
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ordered in default of payment of fine stands on a different footing.”
The same view was expressed earlier by this
Court in Kuldip Kaur v Surinder Singh [(1989) 1 SCC
405], where it was held that a default sentence is
a mode of enforcing recovery of amount imposed by
way of compensation.
14. It was submitted that if default sentence is
taken to be a mode of recovery, then Sections 64 to
70 IPC would be applicable even in cases where
compensation is awarded to the victim under Section
357(3) Cr.P.C. It was further submitted that while
Section 431 states that an amount other than a fine
is recoverable as if it were a fine, a fine could
also be recoverable either under Section 421
Cr.P.C. by attachment of movable and immovable
property or under Sections 64 to 70 IPC and Section
30 Cr.P.C. It was submitted that the said modes of
enforcement were also available in respect of
compensation directed to be paid under Section
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357(3) Cr.P.C. in the light of the provisions of
Section 431 thereof.
15. Mr. Basant concluded on the note that since the
powers of the Magistrate were restricted to
awarding a maximum fine of Rs.5,000/-, which was
subsequently enhanced to Rs.10,000/- in 2005, the
maximum fine that can be imposed by a Magistrate is
only Rs.10,000/-. However, in view of the
provisions for awarding compensation under Section
357(3) Cr.P.C., where the power to award
compensation is unlimited, the Magistrate can take
recourse to the provisions of Section 357(3)
Cr.P.C. to meet a particular situation to ensure
that justice is done to the parties.
16. It was submitted that in view of what has been
stated hereinbefore, in appropriate cases the
Courts are competent to impose a default sentence
where compensation is awarded under Section 357(3)
Cr.P.C.
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17. We have carefully considered the submissions
made on behalf of the respective parties. Since a
decision on the question raised in this petition is
still in a nebulous state, there appear to be two
views as to whether a default sentence on
imprisonment can be imposed in cases where
compensation is awarded to the complainant under
Section 357(3) Cr.P.C. As pointed out by Mr.
Basant in Dilip S. Dahanukar’s case (supra), the
distinction between a fine and compensation as
understood under Section 357(1)(b) and Section
357(3) Cr.P.C. had been explained, but the question
as to whether a default sentence clause could be
made in respect of compensation payable under
Section 357(3) Cr.P.C, which is central to the
decision in this case, had not been considered.
18. In the decision in Rajendran’s case (supra),
the learned Single Judge of the Kerala High Court
had held that in order to recover compensation
which remains unpaid, the Trial Magistrate could
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take steps under Section 421 or Section 431 Cr.P.C.
to recover the same, though ultimately it was held
that imprisonment in case of default of such
payment was not sustainable.
19. In our view, the provision for grant of
compensation under Section 357(3) Cr.P.C. and the
recovery thereof makes it necessary for the
imposition of a default sentence as was held by
this Court firstly in Hari Singh’s case (supra) and
thereafter in Sugnathi Suresh Kumar’s case (supra).
In our view, the law has been correctly stated in
the said two decisions. As we have mentioned
hereinbefore, when the decision of this Court in
Hari Singh’s case (supra) was holding the field,
the learned Single Judge of the High Court had
wrongly relied on the decision of the Kerala High
Court in Rajendran’s case (supra). The power to
impose a default sentence in case of non-payment of
compensation under Section 357(3) Cr.P.C. has been
duly recognized by this Court and the arguments
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advanced to the contrary on behalf of the
Petitioner must, therefore, be rejected.
20. Section 357 Cr.P.C. bears the heading “Order To
Pay Compensation”. It includes in sub-Section (1)
the power of the Court to utilize a portion of the
fine imposed for the purpose of compensating any
person for any loss or injury caused by the
offence. In addition, Sub-Section (3) provides that
when a sentence is imposed by the Court, of which
fine does not form a part, the Court may, while
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 suffers
any loss or injury by reason of the act for which
the accused person has been so sentenced. It is
true that the said provision does not include the
power to impose a default sentence, but read with
Section 431 Cr.P.C. the said difficulty can be
overcome by the Magistrate imposing the sentence.
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To appreciate the said legal position, the
provisions of Section 431 are set out hereinbelow:-
“431. Money ordered to be paid recoverable as 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.”
Section 431 makes it clear that any money other
than a fine payable on account of an order passed
under the Code shall be recoverable as if it were
a fine which takes us to Section 64 I.P.C.
21. Section 64 IPC makes it clear that while
imposing a sentence of fine, the Court would be
competent to include a default sentence to ensure
payment of the same. For the sake of reference,
Section 64 IPC is set out hereinbelow:-
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“64. Sentence of imprisonment for non- payment of fine.--In every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.”
22. The provisions of Sections 357(3) and 431
Cr.P.C., when read with Section 64 IPC, empower the
Court, while making an order for payment of
compensation, to also include a default sentence in
case of non-payment of the same. The observations
made by this Court in Hari Singh’s case (supra) are
as important today as they were when they were made
and if, as submitted by Dr. Pillay, recourse can
only be had to Section 421 Cr.P.C. for enforcing
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the same, the very object of Sub-Section (3) of
Section 357 would be frustrated and the relief
contemplated therein would be rendered somewhat
illusory.
23. Having regard to the views expressed
hereinabove, we hold that while awarding
compensation under Section 357(3) Cr.P.C., the
Court is within its jurisdiction to add a default
sentence of imprisonment as was held in Hari
Singh’s case (supra).
24. The Special Leave Petition is accordingly
dismissed.
25.The time for making the deposit is extended by
three months from today.
________________J. (ALTAMAS KABIR)
________________J. (CYRIAC JOSEPH)
New Delhi Dated: 05.05.2009
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