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TMI Blog2007 (4) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... e been directed to be paid by the Chairman of the Company. We feel that it is not. Therefore, in a case of this nature, Sub-Section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation, the Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right, the amount of compensation must be a reasonable sum, the Court, while fixing such amount, must have regard to all relevant factors including the one referred to in Sub-Section (5) of 357 of the Code of Criminal Procedure and no unreasonable amount of compensation can be directed to be paid. In the facts and circumstances of the case, we, however, think it reasonable to direct the appellant to deposit a sum of Rs. 1 lakh within a period of four weeks, from date. The Respondent - Company, however, would be entitled to withdraw the said amount. The deposit of such amount by the appellant shall be without prejudice to the rights and contentions of the parties in the appeal.These appeals are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed. Submissions of Mr. Subash Jha, learned Counsel appearing on behalf of the appellant are : i) That having regard to the provisions of Section 357(2) of the Code, the impugned judgment is wholly unsustainable inasmuch as in terms thereof the amount of fine imposed would automatically be suspended. ii) Right to prefer an appeal being a constitutional right in terms of Article 21 of the Constitution of India, no condition could have been imposed in respect therefor or for suspension of sentence. Mr. Uday Umesh Lalit, learned Senior Counsel appearing on behalf of the respondents, on the other hand, would submit that a distinction must be made between imposition of fine and application thereof, as contemplated under Clauses (a) to (d) of Sub-Section (1) of Section 357 and an amount of compensation directed to be paid under Section (3) thereof. We have noticed hereinbefore the sentence imposed upon the accused. It was submitted that a conjoint reading of Section 357 read with Sections 421 and 424 of the Code would clearly go to show that it is permissible for a Court to direct recovery of fine forthwith and if it is to be held that recovery of fine is automatica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357. 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: 439. Special powers of High Court or Court of Session regarding bail. (1) A High Court or Court of Session may direct- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (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. This Court, in Babu Rajirao Shinde vs. The State of Maharashtra [(1971) 3 SCC 337], observed that a convicted person must be held to be at least entitled to one appeal as a substantial right. Yet again in Siddanna Apparao Patil vs. The State of Maharashtra [(1970) 1 SCC 547], this Court held : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against an order granting bail. The appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to them. Existence of an order of the Special Court is, therefore, a sine qua non for approaching the High Court. In regard to the principles of natural justice, it was stated in Madhav Hayawadanrao Hoskot vs. State of Maharashtra reported in (1978) 3 SCC 552 : 11. One component of fair procedure is natural justice. Generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on a collegiate basis. In short, a first appeal from the Sessions Court to the High Court, as provided in the Criminal Procedure Code, manifests this value upheld in Article 21. The legal position was declared as under : Where the prisoner seeks to file an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrased with superb amplitude. Although it has been contended that direction to impose a fine of Rs.5 lacs had been issued as a condition precedent for admitting the appeal; from the order of the Appellate Court, the same does not appear to be correct. In its order dated 23.4.2006, the learned Appellate Court directed:- Appeal admitted. Substantive sentence @ compensation payable in default is suspended till the disposal of the appeal, on payment of Rs.5 lacs within four weeks. Call R P. Appellant be released on same bail. Appellant to furnish fresh bail bond. We may also notice that appellant sought time for depositing the amount of compensation and also asked for the indulgence of the Court for reduction of the said amount as also for extension of time. In the Memorandum of Appeal, it was prayed:- (d) That the order of depositing of the compensation imposed by the trial court be suitably modified, to enable the appellant No. 2 time and come up with reduced amount of funds to comply with the same. Although the right of appeal being a vested right cannot be taken away, we must also notice that right of the Court cannot be taken away to suspend th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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, realization of fine, at least in respect of the factor(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). In Rachhpal Singh vs. State of Punjab [(2002) 6 SCC 462], this Court held:- ...A perusal of the operative part of the judgment of the High Court clearly shows that so far as the punishment under Section 302 is concerned, it has disagreed with the Sessions Court and altered the sentence to one of life imprisonment from death. It has nowhere stated that it is also awarding a fine or that it was confirming the fine awarded by the Sessions Court for the offence under Section 302 IPC. In the absence of any such specific recording in our opinion, it should be deemed that the High Court has awarded only a sentence of life impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Sukhbir Singh Ors. [(1988) 4 SCC 551], this Court held: Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub- Section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge. If a fine is to be imposed under the Act, the amount of which in the opinion of the Parliament would be more than sufficient to compensate the complainant; can it be said, that an unreasonable amount should be directed to be paid by the Court while exercising its power under sub-Section (3) of Section 357? The answer thereto must be rendered in the negative. Sub- Section (5) of Section 357 also provides for some guidelines. Ordinarily, it should be lesser than the amount which can be granted by a C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, still then sub-Section (3) would be squarely attracted. The amount of compensation, in view of the legal fiction, may be recovered under Section 421 of the Code. But the amount of compensation, having regard to Sub-Section (2) of Section 357 of the Code cannot be recovered forthwith unless the period of appeal expires. Legal fiction, it is well- settled, must be construed having regard to the purport of the statute. {See Sadashiv Dada Patil vs. Purushottam Onkar Patil (D) By Lrs. [2006 (10) SCALE 21]; M.P. State Electricity Board vs. Union of India Ors. [2006 (9) SCALE 194]; Maruti Udyog Ltd. vs. Ram Lal Ors. [(2005) 2 SCC 638]; Bharat Petroleum Corpn. Ltd. vs. P. Kesavan Anr. [(2004) 9 SCC 772].} Section 421 only provides for a mode of recovery of fine. Section 424 provides for an enabling clause so as to enable the Court to take recourse to either of the situations provided for therein. The said provision, however, would be subject to sub-Section (2) of Section 357 of the Code. Section 431 of the Code provides for a legal fiction in terms whereof any money other than a fine shall be recoverable as if it were a fine. Even according to Mr. Lalit, sub-Section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the enactment where the meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction).' xxx xxx 44. The passage from Bennion continues: '...I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. [Kammins Ballroom Co. Ltd. v. Zenith Investments (Torquay) Ltd. (1970) 2 All ER 871, [1971] AC 850, [1970] 3 WLR 287] provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to remain in jail as an under trial prisoner. So would a person upon conviction. A person may also have to remain in jail, in the event he defaults in payment of fine, if he is so directed. But when a direction is issued for payment of compensation, having regard to Sub-Section (2) of Section 357 of the Code, the application thereof should ordinarily be directed to be stayed. It will, therefore, be for the Court to stay the operation of that part of the judgment whereby and whereunder compensation has been directed to be paid, which would necessarily mean that some conditions therefor may also be imposed. A fortiori a part of the amount of compensation may be directed to be deposited, but the same must be a reasonable amount. An order may not be passed which the appellant cannot comply with resulting him being sent to prison. Appellate Court, in such cases, must make an endeavour to strike a balance. Section 421 of the Code of the Criminal Procedure may take recourse to, but therefor he cannot be remanded to custody. The Parliament has dealt with the imposition of substantive sentence and a sentence of fine vis-`-vis payment of compensation differently. A penal statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In K. Bhaskaran vs. Sankaran Vaidhyan Balan Anr. [(1999) 7 SCC 510], this Court held : However, the Magistrate in such cases can alleviate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e., the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. (See District Mining Officer and Ors. v. Tata Iron Steel Co. and Anr.JT 2001 (6) SC 183). It is also well settled that to arrive at the intention of the legislation depending on the objects for which the enactment is made, the Court can resort to historical, contextual and purposive interpretation leaving textual interpretation aside. It was also opined: More often than not, literal interpretation of a statute or a provision of a statute results in absu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the Proviso to Section 51 C.P.C. and the lethal blow of Article 21 cannot strike down the provision, as now interpreted. The words which hurt are or has had since the date of the decree, the means to pay the amount of the decree . This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11(of the Covenant) and Article 21(of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 141 of the Negotiable Instruments Act. The question may also have to be considered from the angle that the learned Trial Judge thought it fit to impose a fine of Rs. 25,000/- only upon the Company. If that be so, a question would arise as to whether an amount of compensation for a sum of Rs. 15 lakhs should have been directed to be paid by the Chairman of the Company. We feel that it is not. We, therefore, are of the opinion : i) In a case of this nature, Sub-Section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation; ii) The Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right; iii) The amount of compensation must be a reasonable sum; iv) The Court, while fixing such amount, must have regard to all relevant factors including the one referred to in Sub-Section (5) of 357 of the Code of Criminal Procedure; v) No unreasonable amount of compensation can be directed to be paid. In the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X
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