Crl.Rev No.545 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Rev No.545 of 2010 (O&M) Date of Decision: 07.09.2011 Narinder Singh ...Petitioner Vs. State of Punjab & Ors. ...Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL -- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- Present: Mr.H.S.Bath, Advocate, for the petitioner. Mr.Baljinder Sra, Addl.A.G., Punjab, Mr.Kanwal Goyal, Amicus Curiae, with Mr.Vikas Gupta, Advocate, for private respondents. --- A.N.Jindal, J. The trial court, vide judgment dated 3.04.2007, convicted the accused/respondents (herein referred as the respondents) under sections 148, 323, 325 and 149 IPC and sentenced them as under:- Crl.Rev No.545 of 2010 2 Name of convicts Under Sections Sentence Fine 1. Jagir Singh 2. Mahal Singh 3.KashmirSingh 4.Babbu Sabba 148 IPC } 323/149 IPC } R.I. for one year Rs.500/-, each on each count -do- 325/149 IPC R.I. for two years Rs.1000/-, each However, vide judgment dated 22.10.2009, the first appellate court, keeping in view the peculiar circumstances of the case without mentioning the provisions under which the benefit of probation was being granted, affirmed the conviction and modified the sentence by extending the benefit of probation. Relevant extract of the judgment passed by the learned Additional Sessions Judge is reproduced as under:- “.....the appellants/accused are ordered to be released on probation on executing probation bond for a period of one year and for a sum of Rs.10,000/- with one surety of like amount in each case and it is ordered that the fine already ordered by the learned lower court is ordered to be treated as cost of prosecution. Thus, the appeal is partly accepted to the effect that the sentence stands modified and the accused/appellants are ordered to be released on probation as ordered above. It is made clear that in case accused/appellants shall be found to have committed same offence again within such period, they shall be called upon to receive the sentence in accordance with law.” Crl.Rev No.545 of 2010 3 The prime question raised by the earned counsel for the petitioner in this petition is that the court while extending the benefit of probation did not consider for granting compensation to the petitioner as provided under section 357 of the Code of Criminal Procedure (herein referred as the Code). This Court vide order dated 18.08.2010 had issued notice of motion while considering the ground that appellate court should have granted compensation to the complainant/injured under section 357 of the Code Having heard the rival contentions, it transpired that though the first appellate court had proceeded to extend the benefit of probation but it failed to mention as to if the benefit of probation was extended under section 4 or section 5 of the of the Act or under Section 360 of the Code. Faced with this situation, I feel, that since the appellate court in its judgment has mentioned that one of the accused/respondents namely Mahal Singh was more than 70 years of age at that time and other accused persons were in the age group of 20-30 years, therefore, it appears that obviously benefit of probation certainly would have been extended under section 360 of the Code. Now the question to be determined before me is as to “whether the court while extending benefit of probation under section 360 of the Code, it was competent to grant compensation to the complainant?” In this regard, it may be observed that as soon as the order for releasing the accused on probation is passed, the sentence Crl.Rev No.545 of 2010 4 of fine does not subsist. Since neither the sentence of fine nor the sentence of imprisonment subsisted any more then the question of applying the whole or part of the fine in the payment of compensation does not arise. Section 357 of the Code does not provide for any compensation when granting probation to the accused. However, compensation could be granted out of fine or in addition to the sentence and fine. Relevant part of Section 357 of the Code reads as under:- “357. Order to pay compensation:- (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied:- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c) & (d) xxx xxx xxx xxx (2) xxx xxx xxx xxx (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 Crl.Rev No.545 of 2010 5 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. (4) & (5) xxx xxx xxx xxx” Thus, on bare reading of sub-section (1) and (3) of the aforesaid section, it could be culled out that court could impose the compensation only when any sentence of fine or a sentence including the death sentence of which fine forms a part or not , is awarded by the court. While interpreting the provisions of Section 357 of the Code the Apex Court observed that the compensation to the victims of the offence could be awarded simultaneously with the judgment of sentence and fine and it is not ancillary to the power to award other sentences. While discussing this issue the Apex Court in case Mangilal Vs. State of Madhya Pradesh AIR 2004 SC 1280 has observed as under:- “6. Sub-section (1) of Section 357 deals with a situation when a Court imposes a fine or a sentence (including sentence of death) of which fine also forms a part. It confers a discretion on the Court to order as to how the whole or any part of fine recovered is to be applied. For bringing in application of sub-section (1) of Section 357 it is a statutory requirement that fine is imposed and thereupon make further orders as to the disbursement of Crl.Rev No.545 of 2010 6 the said fine in the manner envisaged therein. If no fine is imposed, sub-section (1) of Section 357 has no application. In the case at hand no fine was imposed by the trial Court or the High Court. Sub-section (3) on the other hand deals with the situation where fine does not form part of the sentence imposed by a Court. In such a case, the Court when passing a judgment can order the accused persons to pay by way of compensation such amount as may be specified in the order to the person who has suffered a loss or injury by reason of the act of which the accused person has been so convicted and sentenced. The basic difference between sub-section (1) and (3) is that in the former case, the imposition of fine is the basic and essential requirement, while in the latter even in the absence thereof empowers the Court to direct payment of compensation. Such power is available to be exercised by an Appellate Court or by the High Court or Court of Sessions when exercising revisional powers. Sub-section (5) deals with a situation when the Court fixes the compensation in any subsequent civil suit relating to the same matter. While awarding compensation the Court is required to take into account any sum paid or recovered as compensation under Section 357 of the Code.” The court in the aforesaid judgment, distinguished the provisions with regard of award of compensation and disclosed the Crl.Rev No.545 of 2010 7 circumstances when these two provisions Section 357 (1) and Section 357 (3) of the Code could be invoked. Again in a recent judgment delivered in the case of Manish Jain Vs. State of Karnataka 2008 (3) RCR (Criminal) 666, the Apex Court observed as under:- “10. Sub-section (1) of Section 357 clothes the Court with the power to award compensation to a victim of the offence out of the sentence of fine imposed on the accused. Sub-section (3) of the Section contemplates that when a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused 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. In other words, sub- section (1) provides for application of an amount of fine as compensation when it forms part of the sentence whereas under sub-section (3) the Court can direct the convicted person to pay compensation even in cases where fine does not form part of the sentence. The power vested in the Appellate Court or the High Court or the Court of Sessions (in revision) to award compensation under sub-section (3) of Section 357 CrPC is wide and is in addition to any other sentence which may be awarded on conviction of a person. Needless to add that it is no Crl.Rev No.545 of 2010 8 substitute for sentence on conviction. 11. Though a comprehensive provision enabling the Court to direct payment of compensation has been in existence all through but the experience has shown that the provision has rarely attracted the attention of the Courts. Time and again the Courts have been reminded that the provision is aimed at serving the social purpose and should be exercised liberally yet results are not very heartening. On this aspect, Law Commission in its 42nd Report at para 3.17, inter alia, observed: "We have a fairly comprehensive for payment of compensation to injured party under Section 545 of Procedure Code. It is that our courts do not exercise their salutary powers under this as freely and liberally as could be desired. The Section has, no doubt, its limitations. Its application depends, in the first instance, on whether the Court considers fine proper punishment for the offence. In the more serious cases, the Court may think that a heavy fine in addition to imprisonment for a long term is not justifiable, especially when the public prosecutor ignores the plight of the victim of the offence and does not press for compensation on his behalf." Crl.Rev No.545 of 2010 9 12. In Hari Kishan & State of Haryana Vs. Sukhbir Singh, 1988 (2) RCR (Criminal) 394: (1988) 4 SCC 551, while emphasising the need for making liberal use of the provisions contained in Section 357 CrPC, this Court has observed thus: “ 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 intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system." But in the case in hand, no sentence of fine or imprisonment has been awarded by the court, therefore, no order under Section 357 of the Code could be passed in favour of the petitioner. Similar observations were made by the Hon'ble Apex Court in case Prabhu Ram Vs. State of Haryana 1999 Crl. L.J. 1972, wherein it was observed as under:- “8. A plain reading of the above provision shows that compensation may be ordered to be paid where a Court imposes a sentence of fine. The whole or part of the fine recovered from the accused may be applied in the Crl.Rev No.545 of 2010 10 payment of compensation to any person for any loss or injury caused to him by the offence. The amount of fine may also be applied in defraying the expenses incurred in the prosecution. Thus, it is the amount of fine which is applied either for defraying the expenses incurred in the prosecution or compensating any person for any loss or injury caused to him by the offence. 9. The appellate Court upheld the conviction in the present case and thereafter proceeded to grant the benefit of probation to the accused persons. Since neither the sentence of imprisonment nor the sentence of fine subsisted any more, the question of applying the whole or part of the fine in the payment of compensation does not arise.” It may also be observed that in view of sub-section (3) of the Code when order of sentence has been passed, though fine was not imposed even then compensation could be ordered to be paid to the complainant. However, in view of passing of the order of probation, neither the sentence of imprisonment nor of fine, subsisted, therefore, provisions of Section 357 of the Code are not attracted. Assuming for the sake of arguments, if order of probation was passed by the appellate court under section 4 of the Probation of Offenders Act, 1958 (hereinafter referred as the Act) whether in that situation compensation could be awarded to the complainant. Section 5 of the Act envisages that the court directing the release of Crl.Rev No.545 of 2010 11 an offender under section 3 or section 4 of the Act, if it thinks fit, may direct the accused to pay such compensation for compensating the injured for the loss suffered by him on account of injuries caused at the hands of the accused. But court has not preferred to award compensation while releasing the accused on probation. Section 5 of the Act provides for granting compensation only while releasing the accused on probation. The provisions of Section 11 (1) of the Act deal with the powers of the appellate or revisional court to grant compensation. Section 11(1) of the Act reads as under:- “11. Courts competent to make order under the Act, appeal and revision and powers of Courts in appeal and revision:- (1) Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any Court empowered to “try and sentence the offender” to imprisonment and also by the High Court or any other Court when the case comes before it “on appeal or in revision.” On bare reading of the section it transpires that the legislation gave stress on two words viz. 'empowered to try and sentence the offender ' and “when the case comes before it on appeal or revision” While making the fare scrutiny of the aforesaid words, it transpires that when the court who is trying and sentencing the offender or if any appeal or revision of such offender comes before a higher court, then such order could be passed. Here the Crl.Rev No.545 of 2010 12 accused is not before me in any such appeal revision but it is the revision preferred by the complainant. In such revision neither any enhancement of sentence could be made nor the acuittal could be converted into sentence. Therefore, in the given circumstances no compensation could be awarded in this revision petition preferred by the complainant. The next question which needs to be determined is whether the order of probation could be passed without seeking the report of the Probation Officer. In this regard, it may be observed that the court at the time of extending the benefit of probation to the petitioner could call for the report of Probation Officer with regard to his previous conduct. But to my mind this objection cannot be raised at this stage, particularly, when benefit of probation was granted for one year on 22.10.2009. The period of probation has already been completed and the respondents are not reported to have committed any violation of the terms of the bond. Even otherwise, when the respondents have already completed the period of probation, no further punishment could be awarded to them. The Apex Court has taken similar view in case Kanwar Pal Sing Gill Vs. State (Admn U.T. Chandigarh) Thro. Secy, and Anr. 2005 Crl.L.J.3443, wherein it was observed as under:- “6. The incident happened in 1988. Despite the accused holding a high position in the State police, the various Courts found him guilty of the offence punishable under Section 354 and 509 IPC and would enhance the faith in the judicial system. The accused had completed Crl.Rev No.545 of 2010 13 the period of probation. There was no occasion for any complaint or violation of any of the terms of the bond. At this juncture, we do not think that it just and proper to resort to any other punishment. In our view, the criminal appeal No.430 of 1999 preferred by the complainant against the judgment of the High Court is without any substance and the same is dismissed accordingly.” In view of this matter, since the respondents have already completed the period of probation without violation of terms of the bond, I do not find any ground to put the clock back and direct the trial court to call for the report of the Probation Officer and then to extend the benefit of probation. For the foregoing reasons, this revision petition being devoid of any merit is dismissed. (A.N.Jindal) 07.09.2011 Judge rp