TMI Blog2018 (3) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... pensation 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 - 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. 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 compensation as directed under Section 357(3) Cr.P.C. is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntence 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 ₹ 50,000/with two sureties. However, while allowing the application the High 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. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art 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 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 senten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 suspended and, also, if he is in confinem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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].) 44. Magistrates cannot award compensation in addition to fine. When a fine is imposed, however, the priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otiable 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 ₹ 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 ₹ 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: ( 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 includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r unconscionable in imposing such a condition. Hence, there is no need to 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 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 ₹ 1,50,000/. The petitioner was sentenced to undergo rigorous imprisonment for period of one year and to pay a fine of ₹ 3,00,000/. It was also ordered that out of fine of ₹ 3,00,000/, a sum of ₹ 2,50,000/be given to the complainant as compensation. An appeal was filed where Appellate Court suspended the sentence on the condition that petitioner will deposit an amount of ₹ 1,50,000/before the trial court. The aforesaid c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected to pay a fine of ₹ 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 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. Decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
