No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.406 OF 2018
(ARISING OUT OF SLP(CRL.)NO.1994 OF 2018)
SATYENDRA KUMAR MEHRA
@ SATENDERA KUMAR MEHRA … PETITIONER
VERSUS
THE STATE OF JHARKHAND … RESPONDENT
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed against an order of the High
Court of Jharkhand at Ranchi in Criminal Appeal NO.176 of 2018
by which High Court by allowing I.A.No. 892 of 2018 filed by
the appellant, has directed to grant suspension of sentence
of the appellant. The High Court further directed that the
appellant should also deposit the fine amount awarded before
the court below. The appellant is aggrieved only against that
part of the order by which the High Court directed the deposit
of fine amount.
2.The appellant was an accused in R.C. Case No.68(A) of
1996State (through CBI) vs. Lalu Prasad @ Lalu Prasad Yadav
and others. Accused were tried for the offence punishable
under Sections 120B/ read with 409, 420, 467, 468, 471 and
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477A of the IPC read with Section 13(1)(c) & (d) and 13(2) of
Prevention of Corruption Act, 1988. The trial court by order
dated 24.01.2018 convicted the accused and awarded sentence.
The appellant, who was one of the accused, was awarded the
following sentence by the trial court:
"44. Satyendra Kumar Mehra convicted for
offence punishable U/s 120B/420, 120B/467,
120B/468 and 120B/471 IPC:
U/s 120B/420 IPC R.I. of Five(05) Years with
fine of Rs.25,000/ and in default of payment
of fine S.I. for Three (03) Months.
U/s 120B/467 IPC R.I. of Five (05) Years
with fine of Rs.25,000/ and in default of
payment of fine S.I. for Three (03) Months.
U/s 120B/468 IPC R.I. of Five(05) Years with
fine of Rs.25,000/ and in default of payment
of fine S.I. for Three (03) Months.
U/s 120B/471 IPC R.I. of Five(05) Years with
fine of Rs.25,000/ and in default of payment
of fine S.I. for Three (03) Months.
All the sentences shall run concurrently and
the period undergone shall be set off.”
3.Aggrieved against the above conviction and sentence order
the appellant filed Criminal Appeal No.176 of 2018 before the
High Court. The appellant also filed application praying
suspension of sentence. After hearing, the High Court allowed
the application granting the privilege of suspension of
sentence to the appellant and directing the appellant be
released on bail on furnishing bail bond of Rs.50,000/ with
two sureties. However, while allowing the application the High
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Court passed the following direction:
"Appellant should also deposit the fine amount
awarded before court below.”
4.The appellant aggrieved by the aforesaid direction of the
High Court to deposit the fine amount awarded by the court
below has come up in this appeal.
5.We have heard Shri Sunil Kumar, learned senior counsel
appearing for the appellant and Shri Aman Lekhi, learned
Additional Solicitor General for India appearing for the
respondentState.
6.Learned counsel for the appellant relying on Section 357
subSection (2) of Criminal Procedure Code submits that since
the appellant has already filed an appeal before the High
Court, the amount of fine imposed by the trial court
automatically stands stayed till the decision of the appeal.
He submits that in the present case sentence of fine was also
imposed by the trial court which is the subject of the appeal,
hence Section 357(2) Cr.P.C. is attracted in the present case
and the High Court should not have directed the appellant to
deposit the fine amount awarded by the trial court which
direction is in the teeth of provisions of Section 357(2)
Cr.P.C. Learned counsel for the appellant in support of his
submission placed reliance on the judgment of this Court
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reported in Dilip S. Dahanukar vs. Kotak Mahindra Co.Ltd.
And another, (2007) 6 SCC 528.
7.Shri Aman Lekhi, learned Additional Solicitor General for
India refuting the submission of learned counsel for the
appellant contends that the High Court did not commit error in
directing the appellant to deposit the fine amount awarded by
the court below. He submits that provisions of Section 357(2)
Cr.P.C. is not attracted in the present case. He submits that
what is contemplated by subSection (2) of Section 357 Cr.P.C.
is “payment of the compensation as envisaged in Section 357(1)
Cr.P.C.”. He submits that stay of payment of compensation is
entirely different from the stay of fine which is a part of
sentence imposed on accused.
8.He submits that this Court in Stanny Felix Pinto vs.
Jangid Builders Pvt. Ltd. and another, (2001) 2 SCC 416, has
also upheld a similar order passed by the High Court where the
High Court directed payment of rupees four lakhs as a
condition to suspend the sentence which was part of the fine
imposed as part of sentence.
9.Learned counsel for the appellant submits that judgment
of this Court in Stanny Felix Pinto(supra) cannot be pressed
into service with regard to interpretation of Section 357(2)
Cr.P.C. which section is neither referred to nor adverted to
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by this Court in above case.
10. We have considered the submissions of the learned
counsel for the parties and perused the records. From the
facts brought on record, it is clear that the sentence awarded
to the appellant was a sentence of R.I. of five years with
payment of fine of Rs.25,000/ and in default S.I. of three
months. The said sentence was recorded in four cases and all
sentences were to run concurrently. Thus, the fine was part of
the sentence. The question which is to be answered in the
present case is as to whether by virtue of Section 357(2)
Cr.P.C., the said fine which was part of sentence
automatically was stayed till the decision of the appeal and
would not have been directed by the High Court to be deposited
by the appellant.
11.For answering the question we need to reflect upon the
statutory scheme as delineated by Section 357(2) Cr.P.C.
Section 357(2) Cr.P.C. is part of Chapter XXVII” THE JUDGMENT”
of the Criminal Procedure Code, 1973. Section 353 deals
about the judgment, its pronouncement, signatures, delivery
and other aspects. Section 354 deals with language and
contents of judgment. Section 355 refers to Metropolitan
Magistrate's judgment. Section 356 deals with order for
notifying address of previously convicted offender and then
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Section 357 bears heading “ Order to pay compensation ”. Order
to pay compensation, thus, is a part of judgment where Court
directs payment for compensation.
12.Section 357(1) Cr.P.C. contemplates that when a Court
imposes a sentence of fine or a sentence of which fine forms a
part, the Court may, while passing judgment, order the whole
or any part of the fine recovered to be applied. Section 357
is to the following effect:
“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 of 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, 1855 (13 of 1855),
entitled to recover damages from the person
sentenced for the loss resulting to them from
such death;
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(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 has elapsed, or, if an appeal be
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.”
13.All the circumstances in subsection (1) of Section 357
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refer to direction to pay compensation out of the fine
imposed. Thus, all the circumstances are circumstances where
fine imposed and recovered is to be applied in the above
circumstances.
14.The fine is thus contemplated to be utilised for
compensating different circumstances as enumerated in Section
357(1) Cr.P.C. SubSection (2) of Section 357 Cr.P.C. has been
engrafted in reference to what was stated in subSection (1)
of Section 357 Cr.P.C. Crucial words used in subSection (2)
of Section 357 Cr.P.C. are “ no such payment shall be made
before the period allowed for presenting the appeal has
elapsed, or if an appeal be presented, before the decision of
the appeal”. Thus, what is prohibited under Section 357(2)
Cr.P.C. is that payment of compensation utilising the fine be
not paid till the period allowed for presenting the appeal has
elapsed, or if an appeal is filed then before the decision of
the appeal. It does not involve any concept of stay of
sentence.
15.Chapter XXIX deals with the appeals. In the said Chapter
Section 389 deals with the subject “suspension of sentence
pending the appeal; release of appellant on bail”. Section
389(1) Cr.P.C. empowers the Appellate Court to order that the
execution of the sentence or order appealed against be
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suspended and, also, if he is in confinement, that he be
released on bail. Thus, the power of suspension of sentence
emanates from Section 389 Cr.P.C. where Appellate Court is
empowered to pass such an order. Sections 357 and 389 Cr.P.C.
operate in two different fields. Section 357 Cr.P.C. contains
an embargo that on passing a judgment of sentence of fine, the
fine be not utilised for payment of compensation till
contingency as mentioned therein does not occur. The sentence
awarded by the Court including sentence of fine is in no way
affected by embargo contained in Section 357(2) Cr.P.C. The
operation of Section 357(2) Cr.P.C. is restricted to payment
of compensation as contemplated by Section 357(1) and (3)
Cr.P.C. The heading of the Section 357 Cr.P.C. i.e. “Order to
pay compensation” as well as contents of the Section lead to
only one conclusion that the entire provision has been
engrafted regarding payment of compensation out of the fine
imposed or when Court imposes sentence the fine is not part of
which, the Court may by way of compensation direct payment of
such amount to a person who has suffered the injury. We, thus,
are of the view that Section 357 Cr.P.C. has nothing to do
with suspension of sentence awarded by the trial court and the
sentence of fine imposed on the accused is in no way affected
by Section 357(2) Cr.P.C. The present is not a case where
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trial court has directed payment of any compensation to anyone
out of fine imposed. There is no direction for payment of
compensation in the order of the trial court nor present case
is covered by the circumstances mentioned in subclauses (a)
to (d) of Section 357(1) Cr.P.C. Present is also not a case of
Section 357(3) Cr.P.C. Hence, there is no question of
applicability of Section 357(2) Cr.P.C. The heading of Section
357 Cr. P.C. throws considerable light in finding the object
and purpose of the Section. Section 357 Cr.P.C. is only
attracted when Court orders for payment of compensation.
Section 357 is not attracted in any other case. It is well
settled that heading of the Section plays a role when there is
any doubt in interpretation of the Section. This Court in
Bhinka and others vs. Charan Singh, AIR 1959 SC 960, while
examining the role of a heading of section while interpreting
a section noticed the following principle;
“15......Section 180 provides for the
eviction of a person who but for the eviction
would become a hereditary tenant by efflux of
the prescribed time. If there is any
ambiguity — we find none — it is dispelled by
the heading given to the section and also the
description of the nature of the suit given
in the Schedule. The heading reads thus:
“Ejectment of person occupying land
without title.”
“Maxwell On Interpretation of Statutes, 10th
11
Edn., gives the scope of the user of such a
heading in the interpretation of a section
thus, at p. 50:
“The headings prefixed to sections or sets
of sections in some modern statutes are
regarded as preambles to those sections.
They cannot control the plain words of the
statute but they may explain ambiguous
words.”
If there is any doubt in the interpretation
of the words in the section, the heading
certainly helps us to resolve that
doubt.......”
16.The similar proposition was again reiterated by
threeJudge Bench of this Court in N.C. Dhoundial vs. Union
of India and others, (2004) 2 SCC 579, where in paragraph 15
following has been held:
“15......The language employed in the
marginal heading is another indicator that
it is a jurisdictional limitation. It is a
settled rule of interpretation that the
section heading or marginal note can be
relied upon to clear any doubt or ambiguity
in the interpretation of the provision and
to discern the legislative intent (vide
Uttam Das Chela Sunder Das v. Shiromani
Gurdwara Parbandhak Committee, (1996) 5 SCC
71 and Bhinka v. Charan Singh, AIR 1959 SC
960).”
17.Now we come to the judgment which has been relied on by
the learned counsel for the appellant, i.e., Dilip S.
Dahanukar (supra). In the above case this Court had occasion
to interpret Section 357 Cr.P.C. The appellant therein was
accused No.2, who was directed to pay compensation to the
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complainant of Rs.15 lakh apart from the simple imprisonment.
The facts have been noted in paragraph 3 of the judgment which
is to the following effect:
“3. Accused 1, M/s Goodvalue Marketing
Co. Ltd., a company registered and
incorporated under the Companies Act, 1956
and Accused 2, the appellant herein were
convicted for commission of an offence
involving Section 138 of the Act by a
judgment of conviction and sentence dated
2322006 holding:
“Accused 1 company, M/s Goodvalue
Marketing Co. Ltd. stands convicted for
the offence punishable under Section 138
read with Section 141 of the Negotiable
Instruments Act.
Accused 1 company is sentenced to pay a
fine of Rs 25,000 (Rupees twentyfive
thousand only). In default of payment of
fine, Accused 2 Mr Dilip Dahanukar, the
Chairman of Accused 1 and representative
at the trial, shall suffer SI for 1
month.
Accused 2 Mr Dilip S. Dahanukar, stands
convicted for the offence punishable
under Section 138 read with Section 141
of the Negotiable Instruments Act, 1881.
Accused 2 is sentenced to suffer SI for 1
month.
Accused 2 is also directed to pay compensation
to the complainant, quantified (sic) at Rs
15,00,000 (Rupees fifteen lakhs only), under
Section 357(3) CrPC. Accused 2 is entitled to
pay the amount of compensation in two equal
monthly instalments of Rs 7,50,000 each. The
first instalment of Rs 7,50,000 shall be paid
on or before 2332006 and the second
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instalment of Rs 7,50,000 shall be paid on or
before 2442006; in default of payment of the
amount of compensation Accused 2 shall suffer
further SI for 2 months.”
18.An appeal was preferred against the conviction order. The
Appellate Court while admitting the appeal directed the
accused to deposit a sum of Rs.5 lakh each within four weeks
from the said date. Writ petition was filed questioning the
legality of the said order of the Appellate Court which was
dismissed and thereafter the matter was taken to this Court. A
submission was raised before this Court 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.
19.In the above case this Court considered subSections (1),
(2) and (3) of Section 357 of the Code and observed that
subSection (2) shall be applicable both in regard to
compensation as well as direction under subSection (3). In
paragraphs 43, 44 and 45 following has been laid down:
“43. It does not appeal to us that
although a compensation payable out of the
quantum of fine would remain stayed under
subsection (2) of Section 357 of the Code, if
a compensation is directed to be paid under
subsection (3) thereof, the same would not
attract the said provision. (See P. Suresh
Kumar v. R. Shankar, [(2007) 4 SCC 752].)
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44. Magistrates cannot award compensation
in addition to fine. When a fine is imposed,
however, the private party has no right to
insist that compensation may be awarded to
him out of the amount of fine. The power to
award compensation under Section 357(3) is
not an ancillary power. It is an additional
power. (See Balraj v. State of U.P., [(1994)
4 SCC 29].)
45. Clause (b) of subsection (1) of
Section 357 and subsection (1) of Section
357 and subsection (3) of Section 357 seek
to achieve the same purpose. What is
necessary is to find out the intention of
the lawmaker and the object sought to be
achieved. Subsection (2) of Section 357
uses the word “fine”. It does not say that
what would be stayed i.e. application of
fine. Subsection (2) of Section 357, in our
opinion, does not contemplate any other
interpretation. Even assuming that Mr Lalit
was correct in his submission, still then
subsection (3) would be squarely
attracted.”
20.Referring to Section 389 Cr. P.C., this Court noticed
that suspension of a sentence and enlarging an appellant on
bail, who is convicted and realisation of fine has been dealt
with by Parliament under different provisions of the Code. In
paragraph 51 following has been laid down:
“51. Section 389 does not deal with
exactly a similar situation. Section 389 of
the Code is to be read with Section 387
thereof. Suspension of a sentence and
enlarging an appellant on bail, who is
convicted and realisation of fine has been
dealt with by Parliament under different
provisions of the Code. The power of the
court, thus, to suspend a sentence in regard
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to realisation of compensation may be
different from that of a direction in
realisation of fine.”
21.This Court in the aforesaid case has noted the
distinction between fine of Rs.25,000/ which was imposed on
the Company and compensation of Rs.15 lakh which was directed
to be paid by the Chairman of the Company. In paragraph 71 the
aforesaid was mentioned to the following effect:
“71. We are prima facie of the opinion
(without going into the merit of the appeal)
that the direction of the learned trial Judge
appears to be somewhat unreasonable. The
appellant herein has been sentenced to
imprisonment. Only fine has been imposed on
the Company. Thus, for all intent and
purpose, the learned trial Judge has invoked
both subsections (1) and (3) of Section 357
of the Code. The liability of the appellant
herein was a vicarious one in terms of
Section 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.”
22.This Court ultimately directed the appellant to deposit
rupees one lakh towards the compensation and recorded its
conclusion in paragraph 72 which is to the following effect:
“72. We, therefore, are of the opinion:
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(i) in a case of this nature, subsection (2)
of Section 357 of the Code of Criminal
Procedure would be attracted even when the
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 subsection
(5) of Section 357 of the Code of Criminal
Procedure;
(v) no unreasonable amount of compensation can
be directed to be paid.”
23.This Court, in the above case, was dealing with the
question of payment of compensation which was awarded by the
Court under subSection (3) of Section 357 Cr.P.C. The Court
was not dealing with fine which was part of the sentence. The
Court, thus, had no occasion to consider the issue which has
arisen in the present case. We, in the present case, are not
concerned with payment of any compensation or applicability of
Section 357(2) Cr.P.C. with regard to payment of any such
compensation.
24.We also need to notice the judgment of this Court in
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Stanny Felix Pinto (supra). In the above case along with
sentence of imprisonment, fine was also imposed under Section
138 of the Negotiable Instruments Act. The High Court while
entertaining the revision granted suspension of the sentence
by imposing a condition that part of the fine shall be
remitted in court within a specified time which direction was
challenged in this Court. This Court upheld the said
direction. Following was held in paragraph 2:
“2. When a person was convicted under
Section 138 of the Negotiable Instruments Act
and sentenced to imprisonment and fine he
moved the superior court for suspension of
the sentence. The High Court while
entertaining his revision granted suspension
of the sentence by imposing a condition that
part of the fine shall be remitted in court
within a specified time. It is against the
said direction that this petition has been
filed. In our view the High Court has done it
correctly and in the interest of justice. We
feel that while suspending the sentence for
the offence under Section 138 of the
Negotiable Instruments Act it is advisable
that the court imposes a condition that the
fine part is remitted within a certain
period. If the fine amount is heavy, the
court can direct at least a portion thereof
to be remitted as the convicted person wants
the sentence to be suspended during the
pendency of the appeal. In this case the
grievance of the appellant is that he is
required by the High Court to remit a huge
amount of rupees four lakhs as a condition to
suspend the sentence. When considering the
total amount of fine imposed by the trial
court (twenty lakhs of rupees) there is
nothing unjust or unconscionable in imposing
such a condition. Hence, there is no need to
18
interfere with the impugned order. As such no
notice need be issued to the respondent.
Appeal is accordingly dismissed.”
25.It is true that this Court while deciding the said case
did not consider Section 357(2) Cr.P.C. Learned counsel for
the appellant is right in his submission that the above
judgment cannot be held to be laying down any ratio on
applicability of Section 357(2) Cr.P.C.
26.We may also refer to a judgment of Karnataka High Court
in Irrigation Engineering Company (India) Private Limited and
Anr. vs. The SmallScale Industrial Development Bank of India
(SIDBI), 2003 (6) KarLJ 387, where while interpreting Section
357(2) Cr.P.C., Karnataka High Court had observed that word
“payment” found in Section 357(2) Cr.P.C. does not refer to
the 'deposit' of compensation or fine amount by the accused.
In the case before the High Court appellant was convicted with
sentence of fine. In appeal the High Court directed suspension
of sentence on the condition that the appellant shall deposit
20% of the total fine which was challenged before the High
Court on the ground that in view of Section 357(2) Cr.P.C.,
Appellate Court was not right in asking them to deposit 20% of
the total fine. In paragraphs 8,9 and 10 following was stated:
“8. What Section 357(2) of the Cr. P.C. says
is as under:
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"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 has elapsed, or, if an appeal
be presented, before the decision of
the appeal".
Nowhere it says that the Court of Appeal,
while suspending sentence imposed on an
accused, cannot impose a condition of
depositing a part of fine amount. It is true
that as per the decision relied on for the
petitioners, stay engrafted under the said
provision of law equally applies to the
compensation granted under Subsection (3) of
Section 357 of the Code, but it cannot be
taken to hold or read that the Appellate
Court cannot pass a conditional order for
suspending a sentence.
9. According to me, the word "payment" found
in Section 357(2) of the Cr. P.C., does not
refer to the 'deposit' of compensation or
fine amount by an accused in pursuance of an
order passed by Appellate Court while
suspending sentence imposed on an accused
since, to my mind, the word "payment" refers
to payment to be made to the person, who is
ordered to be paid compensation and not the
fine amount, inclusive of compensation amount
to be 'deposited' by accused. The stay
engrafted into the said provision of law is
with reference to the 'payment' of such
amount earlier to the expiry of the appeal
period or, where appeal has been preferred,
during the pendency of such appeal. So,
Section 357 need not and cannot be read with
Section 389 of the Cr. P.C. In fact, neither
the petitioners/appellants applied for, nor
the Appellate Court ordered suspension of the
sentence relating to compensation of Rs. 16
lakhs only. On the other hand, when the
suspension of impugned sentence passed
against them is seen with the power given to
the Appellate Court under Section 389 of the
20
Cr. P.C., besides the ambit or scope of
Section 357 of the Cr. P.C., there will not
be any difficulty in holding that there is no
error of record or infirmity or irregularity
or illegality in the impugned order passed by
the Court of Sessions suspending the sentence
on condition of depositing 20% of the total
fine amount imposed on them (petitioners).
10. In this view of the matter, neither
Section 357(2) of the Cr. P.C. nor the
decision relied on for the petitioners is of
any help to the petitioners.“
27.Learned Counsel for the appellant has relied on three
judgments of High Courts, one of Punjab and Haryana High Court
and two judgments of Patna High Court in support of his
submissions. We need to refer to above judgments relied by the
learned counsel for the appellant. The first judgment is
judgment of Punjab and Haryana High Court reported in 2006
(3) PLR 194, Kedar Nath versus State of Haryana. In the above
case, the petitioner was convicted for offence under Section
138 of the Negotiable Instruments Act, 1881 for dishonour of
several cheques amounting to Rs.1,50,000/. The petitioner was
sentenced to undergo rigorous imprisonment for period of one
year and to pay a fine of Rs.3,00,000/. It was also ordered
that out of fine of Rs.3,00,000/, a sum of Rs.2,50,000/be
given to the complainant as compensation. An appeal was filed
where Appellate Court suspended the sentence on the condition
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that petitioner will deposit an amount of Rs.1,50,000/ before
the trial court. The aforesaid condition was challenged by the
petitioner in the High Court. It was submitted that in
accordance with Section 357 subsection (2) Cr.P.C. petitioner
was not liable to pay any amount of fine. The High Court
accepted the submission relying on Section 357 subsection (2)
Cr.P.C.. In paragraph 8 of the judgment, following was held:
“8. Against the judgment of conviction and order to
sentence, an appeal was preferred by the petitioner,
which was admitted for hearing. While suspending the
sentence, the Appellate Court imposed a condition
for depositing an amount of Rs.1,50,000/ out of the
amount of fine of Rs.3 lacs imposed by the trial
Court. In my opinion, by imposing the said
condition, the petitioner was compelled to pay the
amount of fine, which according to subsection (2)
of Section 357 Cr.P.C., the accused is not liable to
pay till the final adjudication of the appeal.
Merely because out of the amount of fine of Rs.3
lacs, Rs.2,50,000/ was ordered to be paid to the
complainant as compensation, in my opinion, does not
change the nature of fine. The judgment of the trial
court is very clear that a fine of Rs.3 lacs was
imposed along with the sentence of one year. The
facts of this case are squarely covered by the
decision of the this Court in Sabita Behl’s
case(supra). Thus, in my opinion, the Appellate
Court was not justified while imposing the impugned
condition directing the petitioner to deposit an
amount of Rs.1,50,000/ before the trial Court at
the time of furnishing the bail bonds in view of the
order of suspension of sentence passed by the
Appellate Court.”
28.The above case is clearly distinguishable from the
present case. In the above case, there was direction within
22
the meaning of Section 357 subsection (1) (b) Cr.P.C. for
payment of compensation. Hence Section 357 subsection (2)
Cr.P.C. was relied by the Court. Present is not a case of
payment of any compensation out of fine imposed on appellant.
Thus, the above case in no manner helps the appellant.
29.Now we come to the second case relied by the appellant
i.e. Division Bench Judgment of Patna High court in Bharat
Mandal son of Sitaram Mandal & Ors. Vs. The State of Bihar,
2012 (2) PLJR 855. In the above case accused were convicted
under Section 307/149 IPC and Section 27 of the Arms Act.
They were sentenced for life imprisonment and further
directed to pay a fine of Rs.20,000/ each. The appeal was
filed in which the Appellate Court declined to stay the
payment of fine. The appellant pressed for stay of payment of
fine which was considered by the High Court. High Court
relied on Section 357 subsection (2) Cr.P.C. and accepted
the submission of the appellant that the fine was not to be
paid. Following was held in paragraph 7:
“7. The argument of Mr. Yogesh Chandra Verma,
learned counsel for the appellant is based squarely
upon the literal interpretation from the Section.
In our view, the submission as made by Sri Verma
has to be accepted. On the plain reading of
subsection (2) of Section 357 of the Code of
Criminal Procedure we find that there is absolutely
no ambiguity in the provision as engrafted by the
23
legislature, it clearly stipulates firstly, that no
such payment shall be made before the period
allowed for presenting the appeal has elapsed.
Thus, this stops any court from enforcing payment,
for the period in which appeal could be filed. It
then secondly provides that the stay of action of
realization or payment would continue if an appeal
is presented till the decision of the appeal.
“Decision of the Appeal” would only mean the final
judgment in the appeal and not any order at any
interlocutory stage because that would not be the
decision of the appeal. Thus, on the plain reading
of Section 357(2) of the Code of Criminal Procedure
a fine imposed, would automatically get stayed
firstly for the period which is available to file
appeal and once the appeal is filed then till the
decision of the appeal. That is the mandate of the
legislature itself, clear and unambiguous. The
situation would be different, if instead of
awarding fine, in terms of Section 357(3) of the
Code of Criminal Procedure compensation only is
awarded. In such a case, the appellate court has
judicial discretion to stay or, not to stay the
compensation so awarded depending upon the facts of
the case under consideration.”
30.From the facts noticed by the High Court it is not clear
as to whether the amount of fine Rs.20,000/ was directed to
be paid to the victim. No such facts have been noticed in the
judgment. If there was no direction to pay any compensation
out of the fine imposed the facts of the said case are
similar to the case in hand. We have taken the view that if
there is no direction to pay any compensation out of fine
imposed, Section 357(2) Cr.P.C. is not attracted. We are of
the view that the High Court's observation that in view of
Section 357 subsection (2) of Cr.P.C. the realisation of
24
fine would automatically get stayed does not take into
consideration the distinction in a case where fine is part of
sentence and there is direction to pay compensation and in a
case where there is no direction to pay any compensation.
31.The third case relied by the learned Counsel for the
appellant is again a Division Bench Judgment of Patna High
Court in Criminal Appeal (DB) No.529 of 2012, Naresh Yadav@
Naresh Mahto & Ors. Vs. The State of Bihar, decided on
26.06.2012. The Judgment of Patna High Court has been placed
on record along with the short submissions of learned counsel
for the appellant. A perusal of the judgment indicate that
Patna High Court has not noticed the facts of the case and
the nature of Order passed by the trial Court regarding
imposition of fine. The applicant prayed for modification of
Order of the High Court by which the direction was issued for
depositing the fine. Section 357 subsection (2) Cr.P.C. was
relied and the Division Bench relying on earlier judgment of
Patna High Court in Bharat Mandal & Ors. (Supra) modified the
last paragraph of the Order dated 04.06.2012 providing that
the fine imposed shall remain stayed till the decision of the
case. The above judgment relies only on Bharat Mandal & Ors.
which has already been noted above by us hence this judgment
also does not help the appellant.
25
32.The object and purpose of Section 357 Cr.P.C. was
considered by this Court in Hari Singh vs. Sukhbir Singh and
others, (1988) 4 SCC 551. This Court held that the power
given to the Court to direct for payment of compensation is
intended to do something for the victim. The provision was
held to be a step forward in our criminal justice system.
Following were the observations made in paragraph 10:
"10...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 this power liberally
so as to meet the ends of justice in a better
way.”
33.What is the purpose and object of subSection (2) of
section 357 Cr.P.C.? Section 357(1) Cr.P.C. contemplated
utilisation of fine imposed in certain circumstances as
compensation to be paid to victim. Subsection (2) engrafted
26
an embargo that such payment shall not be made till the period
allowed for appeal has elapsed or if the appeal is filed, till
the same is decided. Legislature was conscious that
compensation paid if utilised, there may not be appropriate
measures to recover the said amount utilised from victim to
whom the compensation is paid hence embargo in payment has
been engrafted in subsection (2). Thus at best subsection
(2) of Section 357 Cr.P.C. is a provision which differs or
withholds the utilisation of the amount of compensation
awarded till the limitation of appeal elapses or if filed till
it is decided. The provision in no manner stays the sentence
of fine during the pendency of the appeal. The purpose for
which subsection (2) of Section 357 Cr.P.C. has been enacted
is different as noted above and it never contemplates as stay
of sentence of fine imposed on accused.
34.We, however, make it clear that Appellate Court while
exercising power under Section 389 Cr.P.C. can suspend the
sentence of imprisonment as well as of fine without any
condition or with conditions. There are no fetters on the
power of the Appellate Court while exercising jurisdiction
under Section 389 Cr.P.C.. The Appellate Court could have
suspended the sentence and fine both or could have directed
for deposit of fine or part of fine.
27
35.Learned counsel for the appellant has also relied on the
judgment of this Court in K.C. Sareen vs. C.B.I. Chandigarh,
(2001) 6 SCC 584, where this Court has made the following
observation:
"No doubt when the appellate court admits
the appeal filed in challenge of the
conviction and sentence for the offence under
the PC Act, the superior court should
normally suspend the sentence of imprisonment
until disposal of the appeal, because refusal
thereof would render the very appeal otiose
unless such appeal could be heard soon after
the filing of the appeal.”
36.The above observation was made by this Court in the
context of suspension of sentence of imprisonment. The present
is not a case where question of suspension of sentence of
imprisonment is involved rather Appellate Court has already
suspended the sentence of imprisonment. The above case also
thus does not help the appellant in the facts of the present
case.
37.In view of the foregoing discussion, we are of the view
that Section 357(2) Cr.P.C. was not attracted in the present
case since there was no direction of payment of any
compensation out of the fine imposed by the trial court as
part of sentence. Section 357 Cr.P.C.(2) comes into play only
where any order of payment of compensation utilising the fine
imposed as sentence under Section 357(1) Cr.P.C. or
28
compensation as directed under Section 357(3) Cr.P.C. is made.
Present being neither a case of Section 357(1) Cr.P.C. nor
Section 357(3), subsection(2) of Section 357 Cr.P.C. is
clearly not applicable and the submissions raised by the
learned counsel for the appellant are without any substance.
We, thus, do not find any infirmity in the impugned order of
the High Court where the High Court has directed the appellant
to deposit the fine awarded by the trial court. In the result,
the appeal is dismissed.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
MARCH 23, 2018.
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