Manish Jalan Vs.
State of Karnataka [2008] INSC 1095 (11 July 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1066 OF 2008
(Arising out of S.L.P.(Criminal) No.1080 of 2007) MANISH JALAN -- APPELLANT
VERSUS
D.K. JAIN, J.:
1.
Leave
granted.
2.
The
sole appellant stands convicted under Section 279 of the Indian Penal Code,
1860 (for short `IPC') for the offence of driving on public way so rashly or
negligently as to endanger human life and also under Section 304A, IPC for
causing death by rash or negligent act, not amounting to culpable homicide.
2 The Trial Court
sentenced him to undergo simple imprisonment for one year and to pay fine of
Rs.5000/- for both the offences and in default to undergo simple imprisonment
for two months. On appeal to the High Court, vide its judgment dated 10th
November, 2006 in Criminal Revision Petition No.159 of 2005, the High Court of
Karnataka at Bangalore has maintained the conviction but has reduced the
sentence to simple imprisonment for one year and a fine of Rs.5000/- for the
offence under Section 279, IPC and simple imprisonment for six months and fine
of Rs.5000/- for offence under Section 304A, IPC.
This judgment of the
High Court is under challenge in this appeal by special leave.
3.
Since
learned senior counsel for the appellant has not seriously questioned the
correctness of the conviction and has confined his arguments to the quantum of
sentence, we deem it unnecessary to refer to the accusations against the
appellant in greater detail. It 3 would suffice to note that the appellant was
charge- sheeted for driving a tanker in a rash and negligent manner so as to
endanger human life and in the process dashing against a Kinetic Honda scooter,
being driven by the deceased, who fell down and was run over by the left wheel
of the tanker. The deceased succumbed to the injuries on way to the hospital.
As noted above, on appraisal of the evidence, both the courts below have found
the appellant guilty of the offence under Sections 279 and 304A, IPC.
4.
Mr.
U.U. Lalit, learned senior counsel appearing for the appellant submitted that
having regard to the fact that the mother of the victim has filed an affidavit,
inter alia, stating that she does not have any grievance against the appellant
as she believes that it was an act of God and it was their destiny that their
son left them at an early age, the sentence of imprisonment awarded to the
appellant may be set aside. Learned senior counsel also pleaded that the
appellant was prepared 4 to pay reasonable amount of compensation, which may
be determined by this Court to the mother of the victim. In support, learned
senior counsel drew our attention to the affidavit filed by the mother of the
deceased, on issuance of notice to her. Para 6 of the affidavit, on which
emphasis was laid by the learned counsel, reads thus:
"I state that
being the mother and class I heir of the victim, late Shri Vasant Prabhu, I am
competent and willing to compound the offence against Shri Manish Jalan. I
state that I have no objection whatsoever if this Hon'ble Court wishes to set
aside the conviction and sentence against Shri Manish Jalan. For this purpose,
I am ready and willing to receive such additional compensation which this
Hon'ble Court may feel appropriate, just and reasonable."
5.
Having
carefully glanced through the evidence on record and the reasoning of the
courts below, we do not find any ground to interfere with the conviction of the
appellant under the afore-mentioned provisions.
Hence, we reject the
challenge of the appellant made in this appeal to his conviction.
6.
On
the question of compounding of the offences, as prayed for in the affidavit,
Section 320 of the Code of Criminal Procedure, 1973 (for short `CrPC') dealing
with "compounding of offences", provides that only such offences as
are included in the two tables, provided thereunder can be compounded. Sub-
section (9) of Section 320 CrPC imposes a specific bar on compounding of other
offences, not included in the two tables. Admittedly, offences punishable under
Sections 279 and 304A, IPC do not figure in the said tables and are, therefore,
not compoundable.
Conscious of the
legal position, learned counsel did not press for compounding of the offences.
Accordingly, we reject the prayer for compounding.
7.
The
next question for consideration is whether facts of the case, particularly the
supervening circumstance brought on record by way of the affidavit of the
mother 6 of the victim, warrant interference in the quantum of sentence
awarded to the appellant?
8.
As
noted above, pursuant to the notice issued to the heirs of the deceased, the
mother of the deceased, namely, Smt. H. Sunanda Prabhu, has filed the afore-
mentioned affidavit. Vide order dated 30th November, 2007, the District Judge,
Mangalore was directed to make necessary inquiry through his own sources
whether the said affidavit had, in fact, been sworn by Smt. H. Sunanda Prabhu
and ascertain the authenticity thereof. In his report dated 8th January, 2008,
the Principal District Judge, Mangalore, has reported that the said affidavit
has been sworn by Smt. H. Sunanda Prabhu before a Notary on 9th July, 2007 and
the same is authenticated.
9.
The
law which enables the Court to direct payment of compensation to the dependents
of the victim is found in Section 357 CrPC (1973), corresponding to Section 7
545 of the 1898 Code. The relevant portion of Section 357 reads as follows:
"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 shelf all offence, in paying in, 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. ... ... ...
(2) ... ... ...
8 (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 reason of the act for which the accused person has been so sentenced.
(4) An order under
this section may also be made by all Appellate Court or by the High Court or
Court of Session when exercising its powers of revision."
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Sub-section
(1) of Section 357 clothes the Court with the power to award compensation to a
victim of the offence out of the sentence of fine imposed on the accused.
Sub-section (3) of the Section contemplates that when a Court imposes a
sentence, of which fine does not form a part, the Court may, when passing
judgment, order the accused 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. In other
words, sub- 9 section (1) provides for application of an amount of fine as
compensation when it forms part of the sentence whereas under sub-section (3)
the Court can direct the convicted person to pay compensation even in cases where
fine does not form part of the sentence.
The power vested in
the Appellate Court or the High Court or the Court of Sessions (in revision) to
award compensation under sub-section (3) of Section 357 CrPC is wide and is in
addition to any other sentence which may be awarded on conviction of a person.
Needless to add that it is no substitute for sentence on conviction.
11.
Though
a comprehensive provision enabling the Court to direct payment of compensation
has been in existence all through but the experience has shown that the
provision has rarely attracted the attention of the Courts. Time and again the
Courts have been reminded that the provision is aimed at serving the social
purpose and should be exercised liberally yet 10 the results are not very heartening.
On this aspect, Law Commission in its 42nd Report at para 3.17, inter alia,
observed:
"We have a
fairly comprehensive provision for payment of compensation to the injured party
under Section 545 of the Criminal Procedure Code. It is regrettable that our
courts do not exercise their salutary powers under this Section as freely and
liberally as could be desired. The Section has, no doubt, its limitations. Its
application depends, in the first instance, on whether the Court considers a
substantial fine proper punishment for the offence. In the more serious cases,
the Court may think that a heavy fine in addition to imprisonment for a long
term is not justifiable, especially when the public prosecutor ignores the
plight of the victim of the offence and does not press for compensation on his
behalf." emphasising the need for making liberal use of the provisions
contained in Section 357 CrPC, this Court has observed thus:
12.
1
(1988) 4 SCC 551 11 "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."
13.
However,
in awarding compensation, it is necessary for the Court to decide if the case
is a fit one in which compensation deserves to be awarded. If the Court is
convinced that compensation should be paid, then quantum of compensation is to
be determined by taking into consideration the nature of the crime, the injury
suffered and the capacity of the convict to pay compensation etc. It goes
without saying that the amount of compensation has to be reasonable, which the
person concerned is able to pay. If the accused is not in a position to pay the
compensation to the injured or his dependents to which they are held to be 12
entitled to, there could be no reason for the Court to direct such
compensation. (See: Sarwan Singh & Mahindra Co. Ltd. & Anr.3 explaining
the scope and the purpose of imposition of fine and/or grant of compensation,
this Court observed as follows:
14.
"The
purpose of imposition of fine and/or grant of compensation to a great extent
must be considered having the relevant factors there for in mind. It may be
compensating the person in one way or the other. The amount of compensation
sought to be imposed, thus, must be reasonable and not arbitrary. Before
issuing a direction to pay compensation, the capacity of accused to pay the
same must be judged. A fortiori, an enquiry in this behalf even in a summary
way may be necessary. Some reasons, which may not be very elaborate, may also
have to be assigned; the purpose being that whereas the power to impose fine is
limited and direction to pay compensation can be made for one or the other
factors enumerated out of the same; but sub- Section (3) of Section 357 does
not impose any such limitation and thus, power thereunder should be 2 (1978) 4
SCC 111 3 (2007) 6 SCC 528 13 exercised only in appropriate cases. Such a
jurisdiction cannot be exercised at the whims and caprice of a judge."
15.
15.True
that in the instant case the appellant has been found to be guilty of offences
punishable under Sections 279 and 304A, IPC for driving rashly and negligently
on a public street and his act unfortunately resulted in the loss of a precious
human life. But it is pertinent to note that there was no allegation against
the appellant that at the time of accident, he was under the influence of
liquor or any other substance impairing his driving skills. It was a rash and
negligent act simplicitor and not a case of driving in an inebriated condition
which is, undoubtedly despicable aggravated offence warranting stricter and
harsher punishment.
16.
Having
regard to all these facts and bearing in mind the fact that the mother of the
victim has no grievance against the appellant and has prayed for some
compensation, we are of the view that a lenient view 14 can be taken in the
matter and the sentence of imprisonment can be reduced. We are of the opinion
that the ends of justice would be met if the sentence of imprisonment is
reduced to the period already undergone but in addition thereto, the appellant
should be directed to pay an amount of Rs.1,00,000/- to the mother of the
deceased by way of compensation.
Learned counsel for
the appellant, in fact, indicated that his client was willing to pay that much
amount.
We order accordingly.
1.
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10.
11.
12.
13.
14.
15.
16.
17.
Accordingly,
the conviction of the appellant under Sections 279 and 304A, IPC is maintained.
However, the substantive sentence of imprisonment is reduced to the period already
undergone. Imposition of fine is also affirmed. Besides, the appellant shall
pay an amount of Rs.1,00,000/- to the mother of the victim, namely, Smt. H.
Sunanda Prabhu, by way of compensation within three months from today. If the
appellant fails to pay the said amount within the 15 stipulated time, the same
shall be recovered as per the procedure prescribed under Section 431 CrPC and
be paid to Smt. H. Sunanda Prabhu.
18.
The
appeal is partly allowed and the order of the High Court is modified to the
extent indicated above.
...........................................J.
( C.K. THAKKER )
...........................................J.
( D.K. JAIN )
NEW
DELHI;
JULY
11, 2008.
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