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2001 DIGILAW 454 (KER)

Rajendran v. Jose

2001-08-20

T.M.HASSAN PILLAI

body2001
Judgment :- Heard. The grievance highlighted by the learned counsel for the revision petitioner against that part of the judgment impugned (judgment passed by the learned Sessions Judge, Ernakulam in Cri. A. 298/98) is that instead of directing the Court below to take steps under the provisions of Sections 431 and 421, Cr. P.C. to recover the compensation awarded the learned Sessions Judge while dismissing the appeal preferred by him directed him to undergo simple imprisonment for a period of 6 months if default is committed in payment of compensation awarded. The contention urged before me by the learned counsel for the revision petitioner very strongly is well merited. Section 357(3), Cr. P.C. is an important provision and the power to award compensation is not ancillary to other sentences but it is in addition thereto. It cannot be argued (counsel for 1st respondent rightly not argued before me) that compensation awarded is fine. It is money other than fine payable by virtue of the order passed by the learned Sessions Judge under Section 357(3) Cr. P.C. and no method of recovery of the compensation payable is otherwise expressly provided for in the Code of Criminal Procedure. Thus, it is plainly clear from Section 431 Cr. P.C. that compensation awarded is recoverable as if it were a fine. Two ways provided for the recovery of fine under Section 421, Cr. P.C. are : (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender (herein this case, the revision petitioner) and (b) issue warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. The Court is empowered to recover the compensation awarded by taking action in either or both of the above stated two ways. So, default clause imposed by the learned Sessions Judge i.e. to undergo imprisonment for six months in case of commission of default in payment of compensation awarded cannot be sustained or salvaged and the Court below (trial Magistrate) is to take steps to recover the compensation awarded as provided under Sections 421 and 431, Cr. So, default clause imposed by the learned Sessions Judge i.e. to undergo imprisonment for six months in case of commission of default in payment of compensation awarded cannot be sustained or salvaged and the Court below (trial Magistrate) is to take steps to recover the compensation awarded as provided under Sections 421 and 431, Cr. P.C.The learned Sessions Judge imposed sentence in default on the basis of the observation made by the Apex Court in Hari Kishan & State of Haryana v. Sukhbir Singh 1988 AIR(SC) 2127, 1989 (95) CRLJ 116, 1988 (4) SCC 551, 1988 (3) Crimes 541, 1988 BBCJ 161, 1989 CRLR 43, 1988 SCC(Cr) 984, 1988 (2) Scale 426, 1988 (S2) SCR 571, 1988 (3) JT 711, 1989 CrLR(SC) 43) that Court may enforce the order by imposing sentence in default. It appears that while disposing of that appeal attention of Apex Court was not drawn specially to the provisions of Section 431, Cr. P.C. providing for recovery of money (other than fine) payable by virtue of any order made under the Criminal Procedure Code. In a later decision (Balraj v. State of U.P. 1995 AIR(SC) 1935, 1995 (101) CRLJ 3217, 1994 (4) SCC 29, 1994 (2) Crimes 87, 1994 (2) CCR 390, 1994 SCC(Cr) 823, 1994 (2) Scale 518, 1994 (1) UJ 601, 1994 (3) JT 649) the Supreme Court directed that "if the appellant falls to pay this amount within three months from today, the same may be collected as provided under Section 431, Cr. P.C. and be paid to PW 2" Compensation of Rs. 10000 was awarded by the Supreme Court by way of compensation to PW 2. This Court in Siby v. Vilasini 1998 2 Ker LT 462 1999 (105) CRLJ 878) took the view that "provisions contemplated in Sections 431 and 421, Cr. P.C. are conspicuously clear that amount of compensation awarded under Section 357(3) can be recovered under the Revenue Recovery Act." The revision is allowed setting aside that part of the order passed by the learned Sessions Judge directing revision petitioner to undergo simple imprisonment for a period of six months in case of his committing default in payment of the compensation awarded (Rs. 40, 000/-). The learned counsel for the revision petitioner submitted that the revision petitioner has been undergoing imprisonment from 7-7-2001 as he committed default in making payment of the amount awarded as compensation. 40, 000/-). The learned counsel for the revision petitioner submitted that the revision petitioner has been undergoing imprisonment from 7-7-2001 as he committed default in making payment of the amount awarded as compensation. Revision petitioner is directed to be released from jail forthwith, if he is not wanted in connection with any other case. Trial Court is directed to take steps under Sections 421 and 431, Cr. P.C. to recover compensation awarded.