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2011 DIGILAW 179 (GUJ)

JAYABEN JAGDISHBHAI SOLANKI v. STATE OF GUJARAT

2011-03-09

P.P.BHATT, RAVI R.TRIPATHI

body2011
JUDGMENT : RAVI R.TRIPATHI – 1. The present application is filed by Jayaben Jagdishbhai Solanki – wife of the deceased with a prayer that, 'the amount of compensation awarded by the learned Sessions Judge, Bharuch in Sessions Case No.37 of 2006 by judgment and order dated 31.12.2007 be paid to her'. 1.1 By the said judgment and order dated 31.12.2007, the learned Sessions Judge was pleased to convict the accused under Section 235(2) of the Code of Criminal Procedure (“the Code”, for short) for an offence under Sections 302 and 201 of the Indian Penal Code. The learned Sessions Judge was pleased to award life imprisonment, fine of Rs.50,000/- (Rupees Fifty Thousand Only) and in default, 3 years' R.I. for offence under Section 302 of the Indian Penal Code and 3 years' R.I., fine of Rs.10,000/- (Rupees Ten Thousand Only) and in default, 1 year's S.I. For offence under Section 201 of the Indian Penal Code. 1.2 The learned Sessions Judge then ordered that in the event, the amount is recovered form the accused, widow of deceased Jagdishbhai Dahyabhai Solanki, i.e. PW No.8 – Jayaben Jagdishbhai Solanki – the present applicant be paid Rs.50,000/- (Rupees Fifty Thousand Only) towards compensation under Section 357 of the Code. 1.3 It is unfortunate that though this order was passed on 31.12.2007 and the amount was deposited by the accused on 14.03.2008, the amount remained in the Court without earning any interest thereon. 1.4 The applicant had filed an application before the learned Sessions Judge on 29.10.2010 for withdrawal of that amount, but the same was not allowed by the l;earned Sessions Judge by order dated 29.10.2010. The present application is therefore filed praying that the amount be paid to the applicant. 2. The present application was filed on 03.12.2010. On 28.12.2010, the Court issued Rule returnable on 28.01.2011. The matter was listed on 01.02.2011 and it was adjourned to 03.02.2011. On 03.02.2011, the matter was adjourned to 17.02.2011 and on that day, Registry was directed to send intimation to the applicant (Jayaben Jagdishbhai Solanki – party-in-person), intimating the date, i.e. 07.03.2011, to make it convenient to remain present or get her case case presented through an Advocate. ON 07.03.2011, the Court being not available, the matter was kept today. 3. Heard the applicant-Jayaben Jagdishbhai Solanki, learned APP Mr.J.K.Shah for opponent No.1-State and Mr.Buch for opponent No.2-accused. 4. ON 07.03.2011, the Court being not available, the matter was kept today. 3. Heard the applicant-Jayaben Jagdishbhai Solanki, learned APP Mr.J.K.Shah for opponent No.1-State and Mr.Buch for opponent No.2-accused. 4. The applicant submitted that dead body of her husband was noticed by the complainant–PW No.29-Chandravadan Bhailalbhai Patel, serving as Police Sub Inspector at Aamod Police Station. In substance, she is without shelter and protection of her husband since 01.12.2005 and that by now, 5 years have passed without any support. She is having two children, a daughter aged 18 years and a son aged 17 years. She submitted that if this amount is not paid to her even today then every day's delay is frustrating the object /purpose behind awarding compensation. 5. Learned Advocate Mr.Buch for opponent No.2-accused-appellant in Criminal Appeal No.1204 of 2008 invited attention of the Court to the provisions of sub-section (2) of Section 357 of the Code and submitted that as the appeal is pending before this Court, no payment can be ordered of the amount which is ordered to be paid by way of compensation by the learned Sessions Judge. The learned Advocate fairly submitted that even if he is instructed to object, he cannot object gainfully to this amount being deposited and interest accruing thereon being ordered to be paid to the claimant. 6. The learned Sessions Judge, after full fledged trial, recorded conviction of the convict under Section 302 of the Indian Penal Code and awarded him life imprisonment, fine of Rs.50,000/- (Rupees Fifty Thousand Only) and in default, 3 years' R.I. and also recorded conviction under Section 201 of the Indian Penal Code and awarded him 3 years' R.I., fine of Rs.10,000/- (Rupees Ten Thousand Only) and in default, 1 year's S.I. Out of the amount of fine, the learned Sessions Judge ordered payment of Rs.50,000/- by way of compensation to the widow of the deceased. 6.1 At this juncture, if the provisions of Section 357 of the Code are perused, the heading of the Section is, 'Order to pay compensation' If sub-section (2) is read as contented by the learned Advocate for opponent No.2-appellant, this Court is of the opinion that the entire purpose of enacting Section 357 and putting it on the statute book will stand frustrated. Besides, the Legislature has inserted Section 357A in the Code with a purpose to put a scheme for providing compensation to the victim, which reinforces the object /purpose of the Legislature behind putting Section 357 on the statute book. In such a situation, when it comes to interpret sub-section (2) of Section 357, it can be interpreted only one way and that is, 'fine which is imposed in a case, which is subject to appeal, that fine if paid, that payment should not be construed to mean that the convict has admitted the guilt'. The second part of sub- section (2) of Section 357 which says that, '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', is to be construed to mean that, 'payment of compensation, if any, is ordered and if that amount of compensation is ordered to be paid to the claimant, that shall not foreclose the fate of the convict'. 6.2 This Court is conscious of the fact that even when amount of compensation is ordered to be paid to the present applicant, it will not be open to argue for the prosecution that by virtue of payment of amount of compensation, the convict has admitted guilt and that by virtue of order of payment of compensation to the present applicant, the matter has achieved the finality. If these two things are taken care of, then sub-section (2) of Section 357 can be read harmoniously with sub-section (1) of Section 357. Besides, the Court, while hearing the appeal on merits and passing order, can always pass appropriate order dealing with deposit of amount of fine and the order of payment of that amount of compensation to the victim. 6.3 In this regard, it will be appropriate to refer to the observations made by the Hon'ble the Apex Court in para-51 in the matter of New India Assurance Company Ltd. Vs. Nusli Neville Wadia & Anr., reported in (2008) 3 SCC 279 . The said para reads as under:- “51. Except in the first category of cases, as has been noticed by us hereinbefore, Sections 4 and 5 of the Act, in our opinion, may have to be construed differently in view of the decisions rendered by this Court. Nusli Neville Wadia & Anr., reported in (2008) 3 SCC 279 . The said para reads as under:- “51. Except in the first category of cases, as has been noticed by us hereinbefore, Sections 4 and 5 of the Act, in our opinion, may have to be construed differently in view of the decisions rendered by this Court. If the landlord being a State within the meaning of Article 12 of the Constitution of India is required to prove fairness and reasonableness on its part in initiating a proceeding, it is for it to show how its prayer meets the constitutional requirements of Article 14 of the Constitution of India. For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/ author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka 6.4 The Hon'ble the Apex Court also observed as under in para-52 of the same judgment, while dealing with meaning of term, 'Purposive Construction'. 52. Barak in his exhaustive work on Purposive Construction explains various meanings attributed to the term purpose. It would be in the fitness of discussion to refer to Purposive Construction in Baraks words: ‘ Hart and Sachs also appear to treat purpose as a subjective concept. 52. Barak in his exhaustive work on Purposive Construction explains various meanings attributed to the term purpose. It would be in the fitness of discussion to refer to Purposive Construction in Baraks words: ‘ Hart and Sachs also appear to treat purpose as a subjective concept. I say appear because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislators shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably'.” 7. Taking into consideration the aforesaid observations made by the Hon'ble the Apex Court and taking into consideration the purpose /object behind Section 357, sub-section (2) of Section 357 of the Code cannot be allowed to frustrate Section 357 itself. The Court therefore passes the following order:- I. At the request of learned Advocate Mr.Buch for opponent No.2-appellant, it is clarified that it will not be pleaded against the appellant that by making payment of the fine imposed, the appellant has admitted the guilt in any manner. II. The order of payment made hereunder to the applicant of the amount of compensation will not seal the fate of the appellant merely because that amount is already ordered to be paid to the applicant. III. The Court, at the time of deciding the appeal finally, will pass appropriate orders pertaining to this amount of compensation. 8. II. The order of payment made hereunder to the applicant of the amount of compensation will not seal the fate of the appellant merely because that amount is already ordered to be paid to the applicant. III. The Court, at the time of deciding the appeal finally, will pass appropriate orders pertaining to this amount of compensation. 8. Taking into consideration the fact that the amount was ordered to be paid by the learned Sessions Judge by judgment and order dated 31.12.2007 and the fact that this amount was deposited by the accused on 14.03.2008 and the fact that this amount has remained in the Court without earning any interest, the Court deems it proper to direct that, 'all the learned Judges, in the event of passing an order for compensation, shall pass an order of deposit of that amount of compensation in a Fixed Deposit initially for a suitable term and shall also pass an order that the interest accruing thereon shall be paid to the applicant /victim with immediate effect till further orders are passed. 9. Coming to the present case, the amount of compensation – Rs.50,000/- (Rupees Fifty Thousand Only) is ordered to be paid to the present applicant in the following manner:- I. Rs.20,000/-(Rupees Twenty Thousand Only) be deposited in a Fixed Deposit for a period of 1 (one) year in the name of the daughter of the applicant, details of which shall be furnished by the applicant to the Court of learned Sessions Judge, subject to further renewal, if the applicant so requests. II. Rs.20,000/-(Rupees Twenty Thousand Only) be deposited in a Fixed Deposit for a period of 3 (three) years in the name of the son of the applicant, details of which shall be furnished by the applicant to the Court of learned Sessions Judge, subject to further renewal, if the applicant so requests. The interest accruing on both these deposits be paid to the applicant. III. Rs.10,000/- (Rupees Ten Thousand Only) be paid to the applicant in cash at the earliest on receipt of this order. 10. The application is allowed. Rule is made absolute.