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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.