Palaniappa Gounder Vs. State of Tamil
Nadu & Ors [1977] Insc 77 (4 March 1977)
CHANDRACHUD, Y.V.
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
CITATION: 1977 AIR 1323 1977 SCR (3) 132 1977
SCC (2) 634
CITATOR INFO :
R 1978 SC1525 (11)
ACT:
Compensation to persons injured out of amount
realised by sentence of fine--Propriety of imposition of heavy fine, while
sentencing-Guidelines to the Courts for imposing sentence of fine--Section 357
of the Code of Criminal Procedure (Act 11 of 1974), 1973.
HEADNOTE:
The appellant was convicted by the Sessions
Judge.
Salem for an offence under s. 302 I.P.C. and
was sentenced to death. The High Court modified the sentence of death to one of
life imprisonment. However, exercising its powers under s. 367(4) of the
Criminal Procedure Code, 1973, the High Court imposed a fine of Rs. 20,000/under
s. 357(1)(c) of the Code. Special Leave was granted, by the court, limiting it
into the question of propriety of the fine imposed by the High Court.
Allowing the appeal in part and reducing the
fine the Court,
HELD: (i) A saving provision which saves the
inherent powers of the court cannot over-ride an express provision contained in
the statute which saves that power. That did not however affect the power of
the High Court to deal with the application merely because the application was
wrongly described as having been made under a wrong section. In the instant
case, the High Court correctly passed an order of compensation not under 5. 482
but under s. 357(1)(c) of the Code and the application filed in the High Court
was maintainable at the instance of the son and daughter of the deceased. [133
H, 135 F-G] (ii) Under s. 302 LP.C. not only a sentence of imprisonment for
life but even a sentence of death can legitimately be combined with a sentence
of fine. For the offence of murder, the court do have the power to impose the
sentence of fine.
[136 B-C] (iii) Legitimacy is not to he
confused with propriety and the fact that the court possesses a certain power
does not mean that it must exercise it. Though there is power to combine a
sentence of death with a sentence of fine that power is to be sparingly
exercised because the sentence of death is an extreme penalty to impose and
adding to that grave penalty a sentence of fine is hardly calculated to serve
any social purpose. [136 C-E] (iv) The first concern of the court, after
recording an order of conviction, ought to he to determine the proper sentence
to pass. The sentence must be proportionate to the nature of the offence and
the sentence, including the sentence of fine, must not be unduly excessive. In
fact, the primary object of imposing a fine is not to ensure that the offender
will undergo the sentence in default of payment of fine but to see that the
fine is realised which can happen only when the fine is not unduly excessive,
having regard to all the circumstances of the case, including the means of the
offender. [137 D-F] (v) Since by s. 357(1)(c) of the code of 1973 and its precursor
s. 545(1)(bb) of the code of 1898 compensation can only come out of fine, it is
always necessary to consider in the first instance whether the sentence of fine
is at all called for, particularly when the offender is sentenced to death or
life imprisonment. If so, the fine must not be excessive, having regard to all
the circumstances of the case like motivation of the offence, the pecuniary
gain likely to have been made by the offender by committing the offence and his
means to pay the fine. The High Court in the instant case instead of applying
its mind to these factors, considered only what compensation the heirs ought to
receive. There is no warrant for the assumption made by the High Court as
regards the retention of "abilities in fact" or as regards the
"extent of loss to the dependants." [137 A-C, 138 A-C] 133 State v.
Pandurang Shinde, A.I.R. [1956] Born 711, 714 referred to.
Adamji Umar Dalai v. The State of Bombay,
[1952] S.C.R. 172, applied.
(vi) In view of the fact that the appellant
was under the sentence of death since its imposition by the Sessions Court and
its reduction to life imprisonment by the High Court since a sentence of life
imprisonment has been imposed on the appellant that being the only other
sentence permissible under the law, the fine of Rs. 20,000 is unduly excessive
and a sum of Rs. would meet the ends of justice. [138 C-D]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 190 of 1976.
(Appeal by Special Leave from the Judgment
and Order dated 15-7-1975 of the Madras High Court in Criminal Appeal No. 162/
75.
Vineet Kumar and M. Mudgal, for the
appellant.
A.V. Rangam and Miss A. Subhashni, for
respondent No. 1 K. Jayaram and K. Ram Kurnar, for respondents Nos. 2-4.
The Judgment of the Court was delivered by
CHANDRACHUD, J. The appellant, Palaniappa Gounder, was convicted by the learned
Principal Sessions Judge, Salem, under s. 302 of the Penal Code and was
sentenced to death on the charge that on August 23, 1974 he had committed the
murder of one Sengoda Goundar. Two appellant's son and daughter-in-law were convicted
by the learned Judge for abetting the murder and were sentenced to life
imprisonment.
The three accused filed an appeal in the High
Court of Madras which upheld the appellant's conviction under s. 392 but
reduced the sentence from death to imprisonment of life.
However, while reducing the substantive
sentence the High Court imposed a fine of Rs. 20,000/on the appellant and
directed that out of the fine, if realised, a sum of Rs, 15,000/should be paid
to the son and daughters of the deceased under s. 357(1) (c) of the Criminal
Procedure Code, 2 of 1974. The other two accused were acquitted by the High
Court. We are not concerned in this appeal with the legality of the appellant's
conviction or with the acquittal of his daughter and son-in-law. The special
leave granted by this Court is limited to the question of the propriety of the
fine imposed by the High Court.
The reason and occasion for imposing the
sentence of fine was that an application was filed before the High Court under
s. 482 of the Criminal Procedure Code by a son and two daughters of the decased
praying that the appellant, his son and daughter-in-law be asked to pay to
them, as heirs of the deceased, compensation in the stun of Rs.
40,000/for the death of their father.
Section 482 of the Code under which the heirs
of the deceased filed the application for compensation corresponds to s. 561-A
of the Criminal Procedure Code of 1898. It saves the inherent powers of the
High Court to make such orders as may be necessary to give effect to any order
under the Code or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice. A provision 134 which saves the inherent powers of
a Court cannot over-ride any express provision contained in the statute which
saves that .power. This is put in another form by saying that if there is an
express provision in a statute governing a particular subject matter there is
no scope for invoking or exercising the inherent powers of the Court because
the Court ought to apply the provisions of the statute which arc made advisedly
to govern the particular subject matter.
From this it will be clear that the
application made by the heirs of the deceased for compensation could not have
been made under s. 482 since s. 357 expressly confers power on the court to
pass an order for payment of compensation in the circumstances mentioned
therein. That did not, however, affect the power of the High Court to deal with
the application because though the application was wrongly described as having
been made under s. 482 the High Court could deal with it as if it were made
under s. 357 of the Code. That in fact is what the High Court proceeded to do,
for it passed the order of compensation not under s. 482 but under s. 357(1)(c)
of the Code.
Section 357 of the Code of Criminal
Procedure, 2 of 1974, reads thus:
"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 derraying 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;
(d) when any person is convicted of any
offence which ill dudes 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 reasons
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.
135 (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 of 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 Sessions 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." Clauses (a), (b) and (d) of s. 357(1) need not be considered
firstly because the High Court has passed the order of compensation trader cl.
(c) and secondly because those clauses have no application. No order having
been passed by the High Court for derraying the expenses incurred in the
prosecution cl. (a) does not come for consideration. Clause (b) has no
application to cases in which the heirs of a person whose death has been caused
apply for compensation because that clause deals with the payment of
compensation to the very person to whom. any loss or injury has been caused as
a result of the offence committed against him or his property and when
compensation is recoverable by such person in a Civil Court. Clause (d) deals
with a different Class of cases altogether and need not detain us.
Clause (c) of s. 357(1) under which the High
Court has passed the order for compensation enables the Court to direct that
the whole or any part of the fine recovered may be applied in paying
compensation to the persons who are under the Fatal Accidents Act, 1855
entitled to recover damages from the person sentenced for the loss resulting to
them from the death of the person whose heirs, as described in the Act of 1855,
they claim to be. Since under the Act of 1855, persons who may be compensated
are the wife, husband, parent (including grand-parents) and child (including
grand-children and step-children), the application filed in the High Court was
maintainable at the instance of the son and daughters of the deceased.
It cannot however be overlooked that the
order for compensation can be passed under s. 357(1)(c) only when "a Court
imposes a sentence of fine or a sentence (including a sentence of death) of
which fine forms a part". We are concerned in this appeal to examine
primarily the legality and propriety of. the sentence of fine imposed by the
High Court because upon that would depend the efficacy and indeed the very
existence of the order for payment of compensation to the heirs of the
deceased. The compensation, as 10--240SC1/77 136 provided in the section, has
to come out of the fine.
Therefore, if on a proper application of the
principles of sentencing, the fine imposed by the High Court is found to be
excessive and has therefore to be reduced, the order regarding the payment of
compensation must suffer a corresponding variation.
There can be no doubt that for the offence of
murder Courts have the power to impose a sentence of fine under s.
302 of the Penal Code.. That section provides
that whoever commits murder shah be punished with death, or imprisonment for
life, and "shall also be liable to fine". That is why section. 357(1)
of the Code speaks of "a sentence (including a sentence of death) of which
fine forms a part." That is only an instance of the practical application
of s. 302 under which not only a sentence of imprisonment for life but even a
sentence of death can legitimately be combined with a sentence of fine.
But legitimacy is not to be confused with
propriety and the fact that the Court possesses a certain power does not mean
that it must always exercise it. Though, therefore, the High Court had, the
power to impose on the appellant a sentence of fine along with the sentence of
life imprisonment the question still arises whether a sentence of fine of Rs.
20,000/is justified in the circumstances of
the case.
Economic offences are generally visited with
heavy fines because an offender who has enriched himself unconscionably or
unjustifiably by violating economic laws can be assumed legitimately to possess
the means to pay that fine. He must disgorge his iII-gotten wealth. But quite
different considerations would, in the generality of cases, apply to matters of
the present kind. Thought there is power to combine a sentence of death with a
sentence of fine that power in sparingly exercised because the sentence of
death is an extreme penalty to impose and adding to that grave penalty a sentence
of fine is hardly calculated to serve any social purpose. In fact the common
trend of sentencing is that even a sentence of life imprisonment is seldom
combined with a heavy sentence of fine. We cannot, of course, go so far as to
express approval of the unqualified view taken in some of the cases that a
sentence of fine for an offence of murder is wholly "inapposite"
(See, for example, State v.
Pandurang Shinde(1), but before imposing the
sentence of fine, particularly a heavy fine, along with the sentence of death
or life imprisonment, one must pause to consider whether the sentence of fine
is at all called for and if so, what is a proper or adequate fine to impose in
the circumstances of the case. As observed by this Court in Adam Ii Umar Dalal
v. The State of Bombay, (2) determination of the right measure of punishment is
often a point of great difficulty and no hard and fast rule can' be laid down,
it being a matter of discretion which is to be guided by a variety of
considerations but the court must always bear in mind the necessity of
maintaining a proportion between the offence and the penalty proposed for it.
Speaking for the Court Mahajan J. observed in that case that: "in imposing
a fine it is necessary to have as much regard to the pecuniary circumstances of
the accused persons as to the (1) A.I.R. [1956] Bom. 711,714.
(2) [1952] S.C.R. 172.
137 character and magnitude of the offence,
and where a substantial term of imprisonment is inflicted, an excessive fine
should not accompany it except in exceptional cases" (p. 177). Though that
case related to an economic offence, this Court reduced the sentence of fine
from Rs. 42,300/to Rs 4,000/on the ground that due regard was not paid by the
lower Court to the principles governing the imposition of a sentence of fine.
The High Court imposed in the instant case a
fine of Rs.
20,000/on the ground that "the deceased
was aged about 48 years and was actively supervising the cultivation of the
family lands and would have lived for another 15 to 20 years with his abilities
in tact, and the loss to the dependents, viz., the son and daughters would be
about Rs. 20,000/-".
Except for the bald and bare statements
contained in the petition for compensation filed by the heirs of the deceased,
there is no warrant for the assumption made by the High Court as regards the
retention of "abilities in tact" or as regards the extent of
"loss to the dependents".
It appears to us that the High Court first
considered what compensation ought to be awarded to the heirs of the deceased
and then imposed by way of fine an amount which was higher than the
compensation because the compensation has to come out of the amount of fine.
Apart from the fact that even the compensation was not fixed on any reliable
data, the High Court, with respect, put the cart before the horse in leaving
the propriety of fine to depend upon the amount of compensation. The first
concern of the Court, after recording an order of conviction, ought to be to
determine the proper sentence to pass. The sentence must be proportionate to
the nature of the offence and the sentence, including the sentence of fine,
must not be unduly excessive. In fact, the primary object of imposing a fine is
not to ensure that the offender will undergo the sentence in default of payment
of fine but to see that the fine is realized, which can happen only when the
fine is not unduly excessive having regard to all the circumstances of the
case, including the means of the offender.
Section 357(1) (c) of the new Code corresponds
to s.545(1) (bb) of the Code of 1898 which was introduced by s.
110 of Amending Act 26 of 1955. The statement
of objects and reasons of that Act shows that the Joint Committee took the view
that, in suitable cases, the person who causes death should compensate the
heirs and dependents of the deceased for the loss resulting from the death. The
Joint Committee was in full agreement with the view that in a case where death
has resulted from homicide, the Court should award compensation to the heirs of
the deceased because that would result "in settling the claim once for all
by doing away with the need for a further claim in a civil Court, needless
worry and expense to both sides of the party".
The views of the Joint Committee incorporated
in the Statement of Objects and Reasons to the Amending Act of 1955 arc
undoubtedly entitled to consideration but those views only reflect that there
should reside in the criminal Court the power in appropriate cases to pass an
order of compensation in favour of the heirs of the 138 deceased. It cannot,
however, be overlooked that since by s. 35:7 (1) (c) of the new Code and its
precursor, s. 545(1)(bb) of the old Code, compensation can only come out of
fine, it is always necessary to consider in the first instance whether the
sentence of line is at all called for, particularly when the offender is
sentenced to death or life imprisonment. If so, the fine must not be excessive,
having regard to all the circumstances of the case like motivation of the
offence, the pecuniary gain likely to have been made by the offender by
committing the offence and his means to pay the fine.
The High Court, instead of applying its mind
to these factors, considered only what compensation the heirs of the deceased
ought to receive. And that question it decided on inadequate data. in view Of
the fact that the appellant was under the sentence of death since its
imposition by the Sessions Court and its reduction to life imprisonment by the
High Court and since a sentence of life imprisonment has been imposed on the
appellant, that being the only other sentence permissible under the law, the
fine of Rs. 20,000 imposed by the High Court seems to us unduly excessive. In
the circumstances we reduce it to a sum of Rs. 3,000/and direct that the fine
or so much of it as is recovered shall be paid to the son and daughters of the
deceased who had flied the petition in that behalf in the High Court.
S.R. Appeal allowed in part.
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