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2019 (12) TMI 101

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..... d with a view to provide interim relief to the complainant, who is unnecessarily compelled to approach the Court of law for realization of his/her own money. Similarly, the appeal is statutory right of a person and such right cannot be allowed to be defeated merely on account of nondeposit of compensation amount, if any, awarded by the learned trial Court. Hon’ble Apex Court in case titled DILIP S DAHANUKAR VERSUS KOTAK MAHINDRA CO LTD & ANR [2007 (4) TMI 667 - SUPREME COURT] has categorically held that power of Court to suspend the sentence with regard to realization of compensation is totally different from its power to issue direction for realization of fine. Though, in the aforesaid judgment Hon’ble Apex Court has categorically held that Appellate Court while suspending the sentence, is entitled to put appellant on terms, but an order may not be passed which the appellant cannot comply with, resulting him being sent to the prison. Careful perusal of aforesaid exposition of law laid down by the Hon’ble Apex Court, suggests that Appellate Court while suspending the sentence, if any, imposed by the trial Court though is not totally barred or estopped from dir .....

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..... efore releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the pubic prosecutor to file an application for the cancellation of the bail] (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellat .....

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..... . It would be relevant to reproduce following paras of the judgment herein: 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 realization of fine has been dealt with by the Parliament under different provisions of the Code. The power of the Court, thus, to suspend a sentence in regard to realization of compensation may be different from that of a direction in realization of fine. 52.If realization of an amount of compensation payable to a victim as envisaged under Clause (d) of Sub-Section (1) of Section 357 is to be stayed under Sub-Section (2) thereof, there is no reason why the amount of compensation payable in terms of Sub-Section (3) shall not receive the same treatment. 53. Doctrine of Purposive Interpretation in a situation of this nature, in our opinion, shall be applied. 54. In R (Haw) vs. Secretary of State for the Home Department & Anr. [(2006) 3 All ER pp.43839, paras 42 & 4445) "42...a passage from Bennion Statutory Interpretation (4th edn, 2002) 810 (section 304) entitled, Nature of purposive const .....

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..... endorsed by the House of Lords.Lord Nicholls of Birkenhead said that the court must be sure of "the substance of the provision Parliament would have used" [See Inco Europe Ltd. v. First Choice Distribution (a firm) [2000] 2 All ER 109, [2000] 2 All ER 109, [2000] 1 WLR 586].'" {See also K.L. Gupta vs. Bombay Municipal Corpn. [(1968) 1 SCR 274 : AIR 1968 SC 303]; Maruti Udyog Ltd. vs. Ram Lal [(2005) 2 SCC 638 : 2005 SCC (L&S) 308]; Reserve Bank of India vs. Peerless General Finance & Investment Co. Ltd. [(1987) 1 SCC 424]; Punjab Land Development and Reclamation Corpn. Ltd. vs. Presiding Officer, Labour Court [(1990) 3 SCC 682]; Balram Kumawat vs. Union of India [(2003) 7 SCC 628] and Pratap Singh vs. State of Jharkhand [(2005) 3 SCC 682].} 55. Unfortunately, the Legislature has not made any express provision in this behalf. In absence of any express provision, the question must be considered having regard to the overall object of a statute. We have noticed hereinbefore that Article 21 of the Constitution of India read with Section 374 of Crl.P.C. confers a right of appeal. Such a right is an absolute one. In a case where a judgment of conviction has been .....

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..... amount or part of it can be applied towards expenses and towards compensation. The Code clearly envisages recovery of fine amount. The execution, suspension, remission and commutation of sentences passed by a criminal Court is envisaged under Chapter XXXII of the Code. It is in four parts. Part A deals with the death sentences, Part B deals with imprisonment, Part C with levy of fine and Part D deals with general provisions regarding execution. Coming in the realm of Part C.Section 421 envisages the procedure of recovery of fine. There has been no specific provision for recovery of compensation awarded by the criminal Court. If the compensation awarded is from out of the fine amount there is no difficulty. However, under the general provisions of Part D, Section 431 covers the field. It is a residuary provision, which caters to the above piquant situation. The learned Judge referred to Section 431 of the Code and observed :(Cri. L.J. p 398, para 9) "9.The object of granting compensation is one and the same under these provisions. When the order of compensation granted under Sub-Section (1) gets automatically stayed in the event of filing an appeal there is no reason as to why .....

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..... the following terms:(SCC pp 71718, paras 3233) "32. A statute is an edict of the Legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of those who make it and the duty of the court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative Legislature to foresee all situations exhaustively and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated with .....

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..... another angle. An accused for commission of an offence under Section 138 of the Negotiable Instruments Act would ordinarily be granted bail; in view of the fact that the offence is a bailable one. 66. The right to appeal from a judgment of conviction vis vis the provisions of Section 357 of the Code of Criminal Procedure and other provisions thereof, as mentioned hereinbefore, must be considered having regard to the fundamental right of an accused enshrined under Article 21 of the Constitution of India as also the international covenants operating in the field. 67. It is of some significance to notice that in Jolly George Varghese and Another vs. The Bank of Cochin[(1980) 2 SCC 360], this Court opined: "10. Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for nonpayment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Arts. 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi's case [1978] 1 S.C.R. 248 as developed further in Sunil Batra v. Delhi Administration, Sita Ram and .....

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..... for award of a compensation. But the same would be subject to other provisions of the Code of Criminal Procedure which mandates that the amount of fine imposed on an accused cannot be more than ₹ 5000/. The very fact that the Parliament did not think it fit to put a ceiling limit in regard to the amount of compensation leviable upon an accused, the discretionary jurisdiction thereto must be exercised judiciously. Ordinarily, an accused shall not be taken in custody during trial. Thus, while exercising the appellate power, ordinarily, a person should not suffer imprisonment only because the conditions imposed for suspending the sentence are harsh. 69. We are of the opinion that having regard to the aforementioned factors the amount of compensation not only must be reasonable one, the conditions for suspending the sentence should also be reasonable. It is only with that intent in view, the doctrine of purposive construction should be applied. 70. We would, however, like to put a note of caution that the right of an accused unnecessarily need not be enlarged but it is the court's duty to duly protect his right. 71. We are prima facie of the opinion (without going into the m .....

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