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TMI Blog2012 (8) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 10,000/- each to PWs 1 and 2 and ₹ 8000/- to PW 3 and ₹ 5000/- each to PWs 4 and 6 with a default sentence of imprisonment for one month each. Petitioner did undergo the substantive sentence but did not pay the compensation and had undergone the default sentence. When the learned Magistrate issued a distress warrant for realisation of the compensation, as provided under Section 421 of Code of Criminal Procedure, petitioner filed Annexure D petition before the learned Magistrate to recall the distress warrant contending that as he has already undergone the default sentence, no distress warrant could be issued. By Annexure E order, learned Magistrate dismissed the petition. It is challenging that order Crl.M.C. 2083 of 2011 was filed under Section 482 of Code of Criminal Procedure, to quash Annexure E order and to allow his prayer in Annexure D petition filed before the learned Magistrate. 3. When the matter was heard by the Single Judge and the decision of a learned Single Judge of this court in Saji Kumar V. Soman Pillai (2006 (3) KLT 679) was pointed out and submitted that the view taken therein is to be reconsidered, in view of the ambit of the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e argument of the learned senior counsel is that though there was a difference of opinion on the question whether a default sentence could be awarded for the payment of compensation awarded under Section 357(3) of Code of Criminal Procedure, the question has been finally settled by the Honourable Supreme Court in R. Mohan V. A.K. Vijaya Kumar (2012 (6) SCALE 113) and therefore there could be a sentence for payment of compensation with a default sentence and when the accused has already undergone the default sentence, the compensation cannot be recovered by recourse to Section 421 of Code of Criminal Procedure. The argument is that only if a fine is available to be recovered, Section 421 of Code of Criminal Procedure applies and when for non payment of the fine, an accused has already undergone default sentence, Section 421 of Code of Criminal Procedure as such has no application and therefore when an accused has undergone the default sentence, even if there is a direction to pay compensation, the compensation cannot be recovered thereafter. The learned senior counsel pointed out that though the revision petitioner was convicted for the offences under Section 138 of Negotiable Instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s again sought to be realised. Reliance was placed on the following decisions. Vijayan V. Sadanandan (2009 (2) KLT 618), Surendran V. Preman (2011 (1) KLT 751), Alex Mathew V. George John (2008 (2) KLT 131), Abbas V. Sabu Joseph (2010 (2) KLT 943), Ahammedkutty V. Abdullakoya (2008 (1) KLT 851) and Shantilal V. State of M.P. (2007 (11) SCC 243). 8. The learned counsel appearing for the petitioner in Crl.M.C. pointed out that though the petitioner was originally convicted and sentenced to undergo imprisonment for three months each, in the revision, the sentence was modified to imprisonment till rising of court and compensation and in such circumstances, the petitioner had to undergo imprisonment for three months if this court had not modified the sentence in the criminal revision petition and this court in the criminal revision petition, modified the sentence to imprisonment till rising of court and payment of compensation with a default sentence of simple imprisonment for one month each and for non payment of the compensation, revision petitioner had already undergone the original period of imprisonment which he would have undergone, if he had not preferred a revision petition a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure is included within the proviso, the compensation awarded under Section 357(3) of Code of Criminal Procedure cannot be realised under Section 421 of Code of Criminal Procedure, when the accused has already undergone the default sentence. 9. For a proper appreciation of the proviso to Section 421 of Code of Criminal Procedure, it is necessary to bear in mind the various provisions for payment of compensation under the Code of Criminal Procedure as well as its mode of recovery. Section 357 of Code of Criminal Procedure deals with the order to pay compensation. Sub-section (1) therein provides for payment of compensation when fine forms part of the sentence. Under sub-section (1), when the sentence includes fine, there could be a direction to pay either in full or part of the fine as compensation. Sub-section (3) of Section 357 of Code of Criminal Procedure applies when fine does not form part of the sentence. If fine does not form part of the sentence, as provided under sub-section (3) of Section 357 of Code of Criminal Procedure, the court while imposing a sentence may order the accused person to pay, by way of compensation, such amount as may be specified in the order to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untarily 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) xxxxx (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 . 10. Section 358 of Code of Criminal Procedure provides for compensation to person groundlessly arrested. Under sub-section (1) therein, whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground of causing such arrest, the Magistrate may award such compensation, not exceeding one thousand rupees to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit. Sub-section (3) fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, 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. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender . 13. Section 421 of Code of Criminal Procedure, as such is applicable only for realising the sentence of fine. Section 431 of Code of Criminal Procedure deals with recovery of money, which is not otherwise provided under the Code of Criminal Procedure. Section 431 of Code of Criminal Procedure reads. 431. Money ordered to be paid recoverable as a fine - Any money (oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its recovery is not otherwise expressly provided for. Under the Section, such money is recoverable as if it were a fine. As a compensation awarded under Section 359 of Code of Criminal Procedure does not provide for the method of its recovery, Section 359 of Code of Criminal Procedure is included in the proviso to Section 431, providing that proviso to Section 421 of Code of Criminal Procedure is to be construed as inclusive of an order for payment of cost under Section 359 of Code of Criminal Procedure. The compensation awarded under Section 358 of Code of Criminal Procedure expressly provides for the mode of its recovery and also default sentence. Section 358 of Code of Criminal Procedure was not included in the proviso to Section 431, as the mode of recovery is there in the section. Section 359 was included in the proviso to Section 421(1), by virtue of the proviso to Section 431, as mode of recovery of the compensation is not expressly provided in the section as is the case in Section 358. As the compensation payable under Section 357 of Code of Criminal Procedure, was not provided with a default sentence, it was not included in the proviso to Section 431 of Code of Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 could be realised. The fact that the accused person has already undergone the default sentence does not make any difference. Special reasons are to be recorded only in other cases, where an accused has undergone the default sentence for the non payment of fine. 19. Though learned senior counsel vehemently argued that question of realisation of compensation or fine by recourse to Section 421 of Code of Criminal Procedure, would arise only if fine or compensation remains to be recoverable and when an accused, who was sentenced to fine or compensation has already undergone the default sentence, the fine or compensation cannot be legally recovered thereafter and therefore after undergoing the default sentence, the sentence of fine or award of compensation does not survive, we cannot agree. Though Section 68 of Indian Penal Code provide that the imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law and Section 69 provides for similar termination of imprisonment on payment of proportional part of the fine, Indian Penal Code does not provide that on undergoing the default sentence, the sentence of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king note the Constitution Bench decision in Hari Singh V. Sukhbir Singh (1984 (4) SCC 551) which was followed in Suganthi Suresh Kumar V. Jagadeeshan (2992 (sic 2002) (2) SCC 420) it was held that the provisions of Section 357(3) and 431 of Cr.P.C. with Section 64 of Indian Penal Code 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 . That view was reiterated in R. Mohan's case (supra) in Abbas's case (supra) where the earlier decision in Vijayan's case (supra) was reiterated. It therefore settles the divergent views. When compensation is awarded under Section 357(3) of Code of Criminal Procedure, there could definitely be a default sentence. 23. The argument of the learned senior counsel is that as the Supreme Court has held that there could be a default sentence for the compensation awarded under Section 357(3) of Code of Criminal Procedure, it is a sentence and therefore the proviso to Section 421 of Code of Criminal Procedure applies and when an accused had undergone the default sentence, the fine cannot be realised again by recourse to Section 421 of Code of Criminal Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. The compensation is not a mode of punishment. As held in Santhilal (supra), compensation awarded under Section 357, 358 or 359 of Code of Criminal Procedure is not a sentence. True, the compensation awarded under sub-section (1) of Section 357 of Code of Criminal Procedure could only be part of the fine, which is a sentence and the proviso to Section 421 applies to that compensation. By virtue of the proviso, even if an accused has undergone the default sentence for non payment of fine, the compensation can be recovered under sub-section (1) of Section 421 of Code of Criminal Procedure. For non-inclusion of sub-section (3) of Section 357 of Code of Criminal Procedure in the proviso to Section 421 of Code of Criminal Procedure, if it is to be held that the compensation awarded under sub-section (3) of Section 357 of Code of Criminal Procedure cannot be realised if he has already undergone the default sentence, it would result in serious anomaly. It is possible that the same accused faced trial in two cases for the offence under Section 138 of Negotiable Instruments Act. Even the complainant could be the same. In one case, there would be a sentence of imprisonment and fine with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 Code read as follows. The Law Commission in its 41st Report recommending amendments to S. 386 observed thus:- 28.7. xxxxxxxx 28.8. xxxxxxxxxx 28.9. Under the proviso to S. 386, if the offender has undergone the whole of the imprisonment in default of payment of fine, no Court shall issue a warrant for levy of the fine unless, for special reasons to be recorded in writing, it considers it necessary to do so. The object of the proviso and the special reasons that can possibly arise were dealt with at length in a Bombay case (AIR 1935 Bom 160 (161, 162). 28.10. We notice that in the above judgment the fact that the complainant has been allotted part of the fine was not considered a relevant special reason for purposes of the proviso as it stands. A contumacious offender should not in our opinion, be permitted to deprive the aggrieved party of the small compensation awarded to it by the device of undergoing the sentence of imprisonment in default of payment of the fine. When an order under S. 545 has been passed for the payment of expenses or compensation out of the fine, recovery of the fine should be pursued, and in such cases, the fact that the sentence of impriso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated earlier, compensation awarded under Section 357(3) of Code of Criminal Procedure could be recovered, as a money payable under Section 421, as recovery is not otherwise provided, by virtue of Section 431 of the Code. If there is no proviso to Section 421 of Code of Criminal Procedure, the compensation could definitely be recovered even if the offender has undergone the default sentence. Therefore, if the award of compensation under Section 357(3) is not a sentence at all, proviso has no application. If so, even if the default sentence is undergone, the compensation payable under sub-section (3) of Section 357 of Code of Criminal Procedure is recoverable as provided under Section 421 in view of Section 431 of Code of Criminal Procedure. 27. In view of the said findings, we agree with the view taken by learned Single Judge in Saji Kumar's case (supra). If compensation is awarded either under sub-section (1) or sub-section (3) of Section 357 of Code of Criminal Procedure, even if the offender has undergone the default sentence, no special reasons are necessary to be recorded to realise the compensation. It is recoverable under Section 421 of Code of Criminal Procedure. Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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