* THE HONOURABLE SRI JUSTICE P.S.NARAYANA + CRIMINAL PETITION No.1935 of 2010 % Dated 08.03.2010 # Smt. N.Shanthamma W/o. N.Vijaya Bhaskar aged about 46 years, Occ:Headmistress D&R Aided Elementary School, Kallur Village, Kurnool District …Petitioner V. $ The State of A.P. through SHO, III Town Police Station, Kurnool, Rep by Public Prosecutor, High Court of A.P. …Respondent ! Counsel for the petitioner: Sri Janakirami Reddy, Advocate ^ Counsel for the Respondent: Additional Public Prosecutor < Gist : > Head Note: ? Cases Referred: 1. AIR 1988 SC 2127 2. 1990 Cri.L.J. 167 3. (2002) 6 Supreme Court Cases 663 4. 2007 (3) Supreme 379 5. 2002 Cri L.J. 395 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THE EIGHTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA CRIMINAL PETITION No.1935 of 2010 Between: Smt. N.Shanthamma …Petitioner AND The State of A.P. through The S.H.O., Kurnool III Town P.S. Rep by the P.P., High Court of A.P. …Respondent The Court made the following THE HON'BLE SRI JUSTICE P.S.NARAYANA CRIMINAL PETITION No.1935 of 2010 ORDER: This matter is coming up for admission. 2. Heard Sri Janakirami Reddy, learned counsel representing the petitioner and the learned Additional Public Prosecutor representing the respondent. 3. This Criminal Petition is ﬁled under Section 482 of Cr.P.C. (hereinafter referred to in short as ‘the Code’, for the sake of convenience), praying this Court for quashing of the docket order dated 24.02.2010 made in Crl.M.P.No.40 of 2010 in Crl.A.No.12 of 2010 on the ﬁle of the VI Additional Sessions Judge, Kurnool, (‘lower appellate Court’, for brevity) and to pass such other suitable orders. 4. Sri Janakirami Reddy, learned counsel representing the petitioners would maintain that the petitioner was convicted in Calendar Case No.19 of 2006 on the ﬁle of the Judicial Magistrate of First Class, Kurnool,(‘trial Court’, for brevity) and was sentenced to undergo Simple Imprisonment for a period of three years and to pay a ﬁne of Rs.5,000/- and in default, to undergo Simple Imprisonment for a period of one month and apart from the same, the petitioner was also directed to pay compensation of Rs.74,843/- to P.W.1 under Section 357(3) of the Code, within a period of one month and in default, to undergo Simple Imprisonment for a period of three months. The trial Court had also suspended the sentence till 27.01.2001 to enable the petitioner to prefer Criminal Appeal. Learned counsel would also maintain that the petitioner, having paid the ﬁne amount, preferred Criminal Appeal 12 of 2010 before the Principal District and Sessions Judge, Kurnool and also ﬁled Crl.M.P.No.27 of 2010 praying for suspension of sentence of imprisonment and the learned Judge of the lower appellate Court made an order and called for deposit of compensation amount of Rs.74,834/- from the trial Court. Learned counsel would further maintain that this order is illegal and unsustainable. Further, learned counsel would maintain that aggrieved by the said order, the petitioner ﬁled Criminal Petition No.941 of 2010 before this Court and this Court, while dismissing the said Criminal Petition, granted liberty to the petitioner to seek for the above relief before the lower appellate Court and in case the same is not granted, then he can approach this Court. Learned counsel would also maintain that the petitioner then ﬁled Criminal M.P. No.40 of 2010 in Crl.A.No.12 of 2010 aforesaid before the lower appellate Court praying for suspension of sentence of imprisonment and payment of compensation of Rs.74,843/- during pendency of the Criminal Appeal speciﬁed supra. But the lower appellate Court dismissed the said application by a docket order dated 24.02.2010 holding that it is not a case where suspension of sentence can be granted. Learned counsel would further maintain that the lower appellate Court had not appreciated Sections 357 and 389 of the Code in proper perspective and as such, prays this Court to make appropriate orders in this Criminal Petition. To substantiate his submissions, learned counsel had relied upon certain decisions. 5. Per contra, learned Additional Public Prosecutor representing the respondent would maintain that by virtue of Section 357(3) of the Code, when appropriate compensation had been awarded while making order under Section 389 of the Code, the lower appellate Court may exercise its discretion of directing the appellant to deposit reasonable compensation and such reasonable compensation should always be just and proper. No hard and fast law as such can be laid down in this regard, but to contend that under no circumstances such direction be issued by the lower appellate Court while granting the order of suspension of sentence under Section 389 of the Code cannot be sustained. Learned Additional Public Prosecutor had also explained the scope and ambit of Section 357 of the Code in general and Sub-Section (3) of Section 357 of the code in particular along with the object thereof, and would maintain that Section 357(3) of the Code had to be harmoniously read with Section 389(1) of the Code. Learned Additional Public Prosecutor had also relied on certain decisions to substantiate his submissions. 6. Heard the learned counsel on record, perused the order under challenge and the judgment made in Calendar Case 19 of 2006, which is under challenge in Criminal Appeal 12 of 2010 before the lower appellate Court. 7. The case of the prosecution, in brief, is as hereunder. The Sub-Inspector of Police, Kurnool III Town Police Station ﬁled charge sheet against the petitioner under Sections 420, 406, 409, 468 I.P.C. G.Esther Rani and the accused were appointed as teachers in D.R. School by Bala Siva Yogendra Maharaj and they have been working as teachers since the year 1986. Esther Rani and the accused were absorbed and admitted in Grant-in-Aid with eﬀect from 28.07.1999 as S.G.Assistants. The accused and Esther Rani were sanctioned amounts on Grant-in-Aid with eﬀect from 28.07.1999. Bala Siva Yogendra Maharaj designated the accused as Headmistress of the school and she was authorized to draw bills pertaining to salaries and others. Esther Rani and the accused have their Account Nos.31548 and 31662 respectively in Andhra Bank Narasingaraopeta Branch. It is also the case of the prosecution that as per the orders of Finance and Planning Department, Government of Andhra Pradesh, the accused and Esther Rani were absorbed and admitted in Grant-in- Aid with eﬀect from 28.07.1999 and sanctioned an amount of Rs.74,834/- each being pay ﬁxation arrears. Relevant dates pertaining to the pay ﬁxation and other particulars have been speciﬁed in the said charge sheet. Prior to 21.03.2003, the accused, being an authorized person, prepared bills of pay ﬁxation arrears and the said details had also been given. The petitioner, with a dishonest intention, manipulated bank annexure diverting an amount of Rs.74,834/-, being pay ﬁxation arrears of Esther Rani to her account No.31662 to cheat Esther Rani and credited an amount of Rs.1,662/- to Account No.31548 and this caused wrongful loss to Esther Rani. It is the further case of the prosecution that basing on such complaint, a crime in Crime No.58 of 2003 was registered by the Assistant Sub Inspector of Police, Kurnool III Town Police Station and charge sheet was filed. 8. The case was taken cognizance for the offences punishable under Sections 420, 406, 409, 468 I.P.C. The prosecution examined P.Ws.1 to 11 and marked Exs.P.1 to P.13. On behalf of the accused, except marking Ex.D.1, no other evidence, either oral or documentary, had been adduced. The trial Court ultimately came to the conclusion that the accused (petitioner herein) is guilty of the oﬀence punishable under Section 409 I.P.C., and held that the accused is not guilty for the oﬀences punishable under Sections 420, 468 I.P.C. The trial Court also observed that it is not a ﬁt case to apply Section 360 of the Code or the Probation of Oﬀenders Act, 1958, and the petitioner was sentenced to undergo Simple Imprisonment for a period of three years and to pay a ﬁne of Rs.5,000/- and in default, to undergo Simple Imprisonment for a period of one month. Further, the trial Court, following the view of the apex Court reported in Hari Kishan and State of Haryana Vs. Sukhbir Singh and others[1], came to the conclusion that it is a ﬁt matter where P.W.1 to be awarded compensation and accordingly, while exercising its power under Section 357(3) of the Code, granted compensation of Rs.74,843/- to P.W.1 to be paid by the accused, and the said compensation was ordered to be paid within a period of one month and in default, to undergo Simple Imprisonment for a period of three months. 9. Accordingly, the ﬁne amount was paid and the petitioner preferred Criminal Appeal 12 of 2010 before the lower appellate Court along with Crl.M.P.No.27 of 2010 praying for suspension of sentence of imprisonment. The lower appellate Court called for deposit of compensation amount of Rs.74,834/- from the trial Court. Aggrieved by the said order, the petitioner ﬁled Criminal Petition No. 941 of 2010 before this Court and this Court, while dismissing the said Criminal Petition 05.02.2010, made the following order: “The petition ﬁled before the Court below in Crl.M.P.No.27 of 2010 and the orders passed thereon would show that there was never any prayer for suspension of the compensation awarded. As such, the petitioner cannot have any grievance saying that the same was not suspended by the Court below. Accordingly, the Criminal Petition is dismissed. However, the petitioner is at liberty to seek the above relief before the lower appellate Court and in case, the same is not granted, then he can approach this Court.” 10. It is also the case of the petitioner that in accordance to the above said order of this Court, the petitioner ﬁled Crl.M.P.No.40 of 2010 in Criminal Appeal No.12 of 2010 before the lower appellate Court praying for suspension of sentence of imprisonment and payment of compensation of Rs.74,843/- during pendency of Criminal Appeal No.12 of 2010 referred to supra. However, the lower appellate Court dismissed the said application by docket order dated 24.02.2010. Aggrieved by the same, present Criminal Petition is filed. 11. Section 357 of the Code deals with order to pay compensation. Section 357(3) of the Code is a new provision, which reads as under. “357(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 by reason of the act for which, the accused person has been so sentenced.” 12. Section 389 of the Code deals with suspension of sentence pending appeal and release of the appellant on bail. Section 389 of the code reads as under. 389. Suspension of sentence pending the appeal; release of appellant on bail - (1) Pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in conﬁnement, that he be released on bail, or on his own bond. (2) The power conferred by the 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 satisﬁed 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 appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released on bail, be deemed to be suspended. 13. I n V.Sundararamireddi Vs. State [2], a Division Bench of this Court, at paras 11 and 14, observed as follows In our view, these two expressions viz., 'judgment' and 'order' have to be understood, whenever they occur in any particular Section of the Code, in the context in which they are employed. An order of conviction, as we have already noted, is a part of the 'judgment' and the same is followed by a sentence, if awarding of sentence is necessary. But even if the Court ﬁnds a person guilty of an oﬀence and releases him either under the provisions of S. 360 of the Code or under the provisions of the Boarstal Schools Act or the Children Act. nevertheless, it amounts to an order of conviction, forming part of the judgment as a whole. We must also bear in mind that the Code has nowhere deﬁned the expressions 'judgment'' or 'order'. When once it is accepted that a convicted person in his appeal challenges the judgment as such, pronounced against him by a Criminal Court, it is axiomatic that he can ask for suspension of execution of the sentence, if there is a sentence. He can as well ask for suspension of the operation of the conviction, which is a part of the judgment, if that becomes necessary in a given case. Even otherwise, there is S. 482 of the Code under which the High Court has got inherent powers. It is sought to be argued by the learned Standing Counsel for A.C.B. cases that when once there is a speciﬁc provision, viz. Section 389 in the Code, which deals with suspension of execution of sentence or order, then S. 482 of the Code cannot be resorted to. But, if the argument of the learned Counsel is to be accepted that the Appellate Court has no power under S. 389(1) of the Code to suspend the 'conviction' pending the appeal, then in some appropriate or exceptional cases only some of which we have already referred to, the convicted person may be compelled under the circumstances to invoke the inherent jurisdiction under S. 482 of the Code. It is well settled that S. 482 of the Code cannot be invoked in a matter where there is a speciﬁc provision in the Code regarding such matter. There cannot be any dispute about this proposition. But, what we are holding is that even if it is to be held that under S. 389(1) of the Code a conviction cannot be suspended, the convicted person may invoke S. 482 of the Code, and it is for the Court to consider whether any relief can be granted or not. 14. Further, strong reliance was placed on State of Punjab Vs. Gurmej Singh[3] whereunder, the Apex Court, at paras 9 and 11 observed as under. The next contention raised by the learned counsel for the appellant is that the surviving victim namely the daughter of Jagjit Singh may be awarded some compensation under Section 357(3) of the of the Code of Criminal Procedure. In support of his submission he has also referred to a decision of this Court in Rachhpal Singh and Anr. v. State of Punjab {(2002) 6 SCC 462 : 2002 SCC (Cri) 1362}. In the said case this Court allowed compensation under Sub-section (3) of Section 357 Cr.P.C. to the victims but it would not applicable in the present case since a sentence of fine has also been imposed. A reading of Sub-section(3) of Section 357 would show that question of award of compensation would arise where the Court imposes a sentence of which ﬁne does not form a part of it. The decision in Rachhpal Singh (Supra) does not take any contrary view nor hold that compensation may be awarded over and above the sentence of ﬁne. A perusal of Sub- section (3) of Section 357 Cr.P.C. would make the position clear. In the present case sentence of ﬁne has also been imposed, as indicated in the earlier part of this judgment. Out of the ﬁne, a sum of Rs.1000/- each had been ordered to be given to the three injured persons namely Dalip Singh, Amarjit Kaur and Gurmeet Kaur. The balance amount is to go to the legal heirs of Jagjit Singh. We had heard the learned counsels for both parties on this aspect. Learned counsel for the appellant submitted that Gurmeet Kaur lost both her parents as well as her brother in the incident and now she is alone and would have become of marriageable age or may have to start some work of her own. She would need some money. In case she cannot be compensated the amount of ﬁne may enhance to some extent. Learned counsel for the respondent has, however, submitted that out of seven acres of land belonging to his father, the same has been divided into three equal shares and some of it is also under mortgage and he has got two daughters and a son and his wife. He has also submitted that whenever respondent was released on parole he met Gurmeet Kaur and his wife also keeps on going to meet her. Their relations are normal and cordial. If that is so, nothing better can be thought of in the prevailing circumstances. However, we are not considering for awarding any compensation to Gurmeet Kaur under Section 357(3) Cr.P.C. but the amount of ﬁne imposed, can in any case be reasonably enhanced. 15. In Dilip S Dahanukar Vs. Kotak Mahindra Co. Ltd.,[4], the apex Court, at paras 10, 24, 35, 66, 67, 69 and 70 observed as follows. It is, therefore, apparent that if a Court imposes a sentence of ﬁne or a sentence or where it forms a part thereof, the Court is entitled to direct that whole or any part of the ﬁne recovered, to be applied to in respect of the factors enumerated in Clauses (a), (b), (c) or (d). Section 421 of the Code deals with the mode and manner in which the ﬁne levied is to be recovered. Section 424 deals with the steps required to be taken by the Court where the amount of ﬁne has not been paid forthwith. Section 357 deals with two types of cases, namely, (i) where only a sentence has been imposed; and (ii) where ﬁne also forms part of the sentence. When a ﬁne is imposed simplicitor Section 421 read with Section 424 would be applicable but where ﬁne forms part of the sentence, it would not have any application. Compensation is awarded towards suﬀerance of any loss or injury by reason of an act for which an accused person is sentenced. Although it provides for a criminal liability, the amount which has been awarded as compensation is considered to be recourse of the victim in the same manner which may be granted in a civil suit. So far as Appellant No. 2 is concerned, no ﬁne has been imposed on him. He was directed to pay compensation. The purpose of imposition of ﬁne and/or grant of compensation to a great extent must be considered having the relevant factors therefore 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 exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge. It is also of some signiﬁcance to note that whereas under Section 357(1) of the Code of Criminal Procedure a ﬁne of Rs. 5000/- can be imposed; ﬁne in terms of Section 357(2) thereof can be twice the amount of cheque whereas there is no upper limit 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 Rs. 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. 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. We are prima facie of the opinion (without going into the merit of the appeal) that the direction of the learned Trial Judge appears to be somewhat unreasonable. Appellant herein has been sentenced to imprisonment. Only ﬁne has been imposed on the Company. Thus, for all intent and purpose, the learned Trial Judge has invoked both Sub- sections (1) and (3) of Section 357 of the Code. The liability of the appellant herein was a vicarious one in terms of Section 141 of the Negotiable 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 Rs. 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 Rs. 15 lakhs should have been directed to be paid by the Chairman of the Company. We feel that it is not. We, therefore, are of the opinion: i ) In a case of this nature, Sub- section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation; i i ) 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; i i i ) The amount of compensation must be a reasonable sum; i v ) The Court, while ﬁxing such amount, must have regard to all relevant factors including the one referred to in Sub- section (5) of 357 of the Code of Criminal Procedure; v ) No unreasonable amount of compensation can be directed to be paid. 16. Reliance was also placed on Prasada Rao Vs. State of A.P. [5], wherein a learned Judge of this Court observed as under. Perusal of the said provision shows any money payable by virtue of an order of the Court other than the ﬁne amount shall be recoverable as if it were a ﬁne. Therefore, the compensation granted under Sub- section (3) of Section 357 is recoverable as if it were a ﬁne. For such recovery we have to fall back only under Section 421 of the Code. It is obvious that be it compensation awarded from out of the ﬁne either in whole or in part under Sub- section (1) or be it compensation awarded under Sub-section (3) of Section 357 of