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CASE NO.: Appeal (crl.)  667 of 2003

PETITIONER: Mangilal                                                 

RESPONDENT: State of Madhya Pradesh                                  

DATE OF JUDGMENT: 05/01/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

         An interesting question relating to the scope and ambit of Section  357 of the Code of Criminal Procedure, 1973 (for short ’the Code’) is  raised in this appeal which by order dated 15.10.2003 was limited to the  question of grant of compensation as done by the High Court. In view of  the aforesaid, and the question of law involved, it is not necessary to  go into the factual aspects in detail.  

       The appellant (hereinafter referred to as ’the accused) faced  trial along with seven others for alleged commission of offences  punishable under Section 452, 148, 323 read with Section 149, 302 read  with Section 149 of the Indian Penal Code, 1860 (for short ’the IPC’)  for allegedly causing death of one Rajinder Kumar (hereinafter referred  to as ’the deceased’). All the accused persons including the appellant  were found guilty for offences relatable to Section 448.  They were also  found guilty of offence relatable to Section 323 read with Section 149  IPC for having caused injuries to Amar Singh, the informant (PW-8). They  were acquitted of the charges relatable to Section 148 IPC and were  convicted in relation to Section 147 IPC.  Appellant was acquitted of  charges relatable to Section 323 read with Section 149 but was convicted  under Section 302 IPC.  The rest of the accused persons were not found  guilty in relation to Section 302 read with Section 149 IPC.  All the  accused persons except accused Babu Lal were acquitted of the charges  under Section 323 read with Section 149 IPC.  Accused-appellant was  sentenced to undergo life imprisonment for the offence punishable under  Section 302 IPC and for the rest of offence he was sentenced to RI for  six months each.  Other accused persons were sentenced to undergo RI for  six months each for two offences for which they were found guilty.   Accused Babu Lal in addition was sentenced to undergo for all the three  offences for six months RI. Four appeals were filed by the accused  persons including the appellant before the High Court. By the impugned  judgment, a Division Bench of Madhya Pradesh High Court maintained  convictions of the appellant.  It was noticed that the appellants before  the High Court (except the present accused-appellant) have been in  custody for about two months.  It was noted that the trial Court had not  awarded any compensation to the heirs of the deceased and to the injured  (PW-8).  As the High Court did not feel it appropriate to send the rest  of the accused persons to jail, direction was given that each of them  shall pay compensation @ Rs.30,000/- in terms of Sections 357 (3) and  (4) of the Code. The accused-appellant was also directed to pay similar  compensation. Fixing a proportion by apportionment it was directed that  out of the compensation, 2/3rd was to be paid to the heirs of the  deceased while rest 1/3rd was to be paid to the injured (PW-8).  Sentence  of all the appellants in respect of Sections 147 and 148, and in case of  accused-Babulal additionally for Section 323 was reduced to the period

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of imprisonment already undergone.  Only accused-appellant Mangilal has  preferred this appeal which as noted at the outset was restricted to the  question of grant of compensation.   

       Dr. T.N. Singh, learned senior counsel appearing for the appellant  submitted that the High Court has not kept in view the object underlying  the grant of compensation under Section 357 of the Code.  This is a case  where no fine was imposed by the trial Court, but the High Court  directed payment of compensation. While fixing the quantum the accused  persons were not heard thereby violating principles of natural justice.   An additional liability was fastened on the accused-appellant, and  therefore, the principles of natural justice mandated grant of an  opportunity.   

       Per contra, learned counsel for the State submitted that the  compensation is in addition to the fine and when for allocating fine no  hearing is necessary, except while hearing on the question of sentence,  there is no requirement for hearing the accused before awarding  compensation.  In any event, Section 357 nowhere postulates grant of an  opportunity to be heard.

       For appreciating rival submissions, it is appropriate to quote  Section 357 of the Code along with the amendments in the State of Madhya  Pradesh, which reads as follows:

"Section 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)     when any person is convicted to 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  (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 purchaser of such  property for the loss of the same if such  property is restored to the possession of the  person entitled thereto.

(2)     If the fine is imposed in a case which is  subject to appeal, no such payment shall be made  before the period allowed for presenting the appeal

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has elapsed, or, if an appeal is 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)     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 powers of revision.

(5)     At the time of awarding compensation in any  subsequent civil suit relating to the same matter,  the Court shall take into account any sum paid or  recovered as compensation under this section."        

       The Madhya Pradesh State Amendment reads as follows:      "(a) In sub-section (1), for-

       (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; substitute-

       (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, and where a  person against whom an offence is committed belongs  to Scheduled Castes or Scheduled Tribes as defined in  clauses (24) and (25) of Article 366 of the  Constitution of India, 1950 (in short the  ’Constitution’) except when both the accused person  and the person against whom an offence is committed  belong either to such castes or tribes, the Court  shall, when passing judgment, order the whole or any  part of the fine recovered to be applied; and

       (b)     substitute sub-section (3) as under:

       (3)     When a Court imposes a sentence, of which  fine does not form a part, the Court may, and where a  person against whom an offence is committed belongs  to Scheduled Castes or Scheduled Tribes as defined in  clauses (24) and (25) of Article 366 of the  Constitution, the Court shall, 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.  

       Provided that the Court may not order the  accused person to pay by way of compensation any  amount, if both the accused person and the person  against whom an offence is committed belong either to  the Scheduled Caste or the Scheduled Tribe. (M.P. Act  20 of 1978 w.e.f. 5.10.1978)"

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       Sub-section (1) of Section 357 deals with a situation when a Court  imposes a fine or a sentence (including sentence of death) of which fine  also forms a part.  It confers a discretion on the Court to order as to  how the whole or any part of fine recovered is to be applied.  For  bringing in application of sub-section (1) of Section 357 it is a  statutory requirement that fine is imposed and thereupon make further  orders as to the disbursement of the said fine in the manner envisaged  therein.  If no fine is imposed, sub-section (1) of Section 357 has no  application.  In the case at hand no fine was imposed by the trial Court  or the High Court. Sub-section (3) on the other hand deals with the  situation where fine does not form part of the sentence imposed by a  Court.  In such a case, the Court when passing a judgment can order the  accused persons to pay by way of compensation such amount as may be  specified in the order to the person who has suffered a loss or injury  by reason of the act of which the accused person has been so convicted  and sentenced.  The basic difference between sub-section (1) and (3) is  that in the former case, the imposition of fine is the basic and  essential requirement, while in the latter even in the absence thereof  empowers the Court to direct payment of compensation. Such power is  available to be exercised by an Appellate Court or by the High Court or  Court of Sessions when exercising revisional powers. Sub-section (5)  deals with a situation when the Court fixes the compensation in any  subsequent civil suit relating to the same matter. While awarding  compensation the Court is required to take into account any sum paid or  recovered as compensation under Section 357 of the Code.          The power of the Court to award compensation to victims under  Section 357 is not ancillary to other sentences but is in addition  thereto. In                  Hari Singh v. Sukhbir Singh and Ors. (1988  (4) SCC 551) it was observed that the power under Section 357 is a  measure of responding appropriately to crime as well as reconciling the  victim with the offender. It is, to some extent, a re-compensatory  measure to rehabilitate to an extent the beleaguered victims of the  crime, a modern constructive approach to crimes, a step forward in our  criminal justice system. In Sarwan Singh and Ors. etc. v. the State of  Punjab (AIR 1978 SC 1525) it was held that in awarding compensation, the  Court has to decide whether the case is fit one in which compensation  has to be awarded.  If it is found that the compensation should be  ordered to be paid, then while arriving at the quantum to be paid,  Courts are obliged to keep into account the capacity of the accused to  pay the compensation besides taking into consideration also the nature  of the crime in each case, the justness of the claim for compensation  and the need for it in the context of the victim or members of the  family of the victim and other relevant circumstances, if any, in so  fixing or apportioning the amount of compensation. As noted above, the  mode of application of the fine is indicated in sub-section (1) of  Section 357. Sub-section (3) contains an independent and distinct power  to award compensation.  

That brings us to the most crucial question, that is, whether the  Court was required to hear accused before fixing the quantum of  compensation.  It is urged by the learned counsel for the State that  unlike a sentence of fine before imposition of which a Court is required  to hear the accused while considering the question of quantum of  sentence, it is but natural that the trial Court after hearing on the  question of sentence does not impose a fine, but in terms of sub-section  (3) of Section 357 proceed to award compensation, at that juncture or  even during the course of hearing as to the quantum of sentence by  sufficient indication made by the Court concerned, the accused gets  opportunity to present his version as to the relevant criteria or norms  to be applied in the context of the case before the Court on the quantum  of compensation. The position cannot be said to be, in any way different  while the Appellate or Revisional Court also does it in terms of sub-

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section (4), as long as it requires to be done in the light of the  criteria indicated as above, unless it is by any agreement or consent of  the parties such compensation has been fixed.

Even if a statute is silent and there are no positive words in the  Act or Rules made thereunder there could be nothing wrong in spelling  out the need to hear the parties whose rights and interest are likely to  be affected, by the orders that may be passed, and making it a  requirement to follow a fair procedure before taking a decision, unless  the statute provides otherwise. The principles of natural justice must  be read into unoccupied interstices of the statute, unless there is  clear mandate to the contrary.  No form or procedure should ever be  permitted to exclude the presentation of a litigant’s defence or stand.   Even in the absence of a provision in procedural laws, power inheres in  every Tribunal/Court of a judicial or quasi-judicial character, to adopt  modalities necessary to achieve requirements of natural justice and fair  play to ensure better and proper discharge of their duties. Procedure is  mainly grounded on principles of natural justice irrespective of the  extent of its application by express provision in that regard in given  situation.  It has always been a cherished principle. Where the statute  is silent about the observance of the principles of natural justice,  such statutory silence is taken to imply compliance with the principles  of natural justice where substantial rights of parties are considerably  affected. The application of natural justice becomes presumptive, unless  found excluded by express words of statute or necessary intendment. (See  Swadesi Cotton Mills etc. etc. v. Union of India etc. etc., AIR 1961 SC  818).  Its aim is to secure justice or to prevent miscarriage of  justice.  Principles of natural justice do not supplant the law, but  supplement it. These rules operate only in areas not covered by any law  validly made.  They are means to an end and not an end in themselves.  The principles of natural justice have many facets.  Two of them are:  notice of the case to be met, and opportunity to explain.  

In the aforesaid premises, the irresistible conclusion is that  opportunity has to be granted before directing payment of compensation  under Section 357 (4) of the Code.   

       The use of the expression "may" throws light on the legislative  intent in the context it is used.  It has been used in the permissible  sense and does not make it obligatory. In the aforesaid background, the  inevitable conclusion is that if the Appellate Court intends to award  compensation an opportunity of hearing has to be granted so that the  relevant aspects like the need to award compensation, capacity of the  accused to pay and several other relevant factors can be taken note of.

       Accordingly, we set aside that part of the High Court judgment  which relates to direction for payment of compensation by the accused- appellant and remit the matter back to the High Court, which shall grant  an opportunity to the accused-appellant, and the adjudication shall be  limited to that question particularly relating to the liability of the  appellant only since others are said to have already paid the respective  amount.  It is made clear that we have not expressed any opinion on the  merits of the issue to be decided under Section 357 (4) of the Code. The  appeal is allowed to the extent indicated.