Mangilal
Vs. State of Madhya
Pradesh [2004] Insc 3
(5 January 2004)
Doraiswamy
Raju & Arijit Pasayat. 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 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 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)" 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-
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.
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