Bellary Sreenivasulu vs State of Karnataka and Another

This revision petition is directed against the judgment and order dt. 14-9-77 passed in the Crl.App.21 of 1977 by the learned Sessions Judge, Bellary, confirming the order of conviction and sentence passed against the present petitioner by the learned Addl Munsiff and JMFC Hospet in CC. 475 of 1974 on his file.

K. Halamma instituted a complaint against the present petitioner for an offence punishable under Sec. 500 IPC. She averred that in the plaint of OS. 154 of 1973 he described her as a ''Basivi'' and further in the cross-examination, the accused instructed his lawyer to put a question whether she was in the keeping of DW. 7. The learned Magistrate on hearing the case, found the accused guilty for the offence under Sec. 500, IPC and convicted and sentenced him to undergo simple imprisonment for one month. Aggrieved by the said order of conviction and sentence the accused went up in appeal before the learned Sessions Judge, Bellary and the learned Sessions Judge, after hearing, was pleased to dismiss the appeal. Aggrieved by the said order, the revision petitioner has approached this Court.

The learned Advocate appearing for the revision petitioner submitted that the Courts below were not justified in sending the young petitioner to jail. He submitted that having regard to the facts of the case and the subsequent conduct of the petitioner that he applied to the Court for expunging the word ''Basivi from the plaint a small amount of fine should have met the ends of justice instead of sending the petitioner to jail. On going through the facts, I am persuaded to agree with the submissions made by the learned Counsel for the petitioner.

The present trend in penology has been to deprecate short term imprisonment. It is observed time and again that a short term sentence of imprisonment would not serve its purpose of deterring the offender from committing similar offences. It would not also serve as; an example and a warning to other like-minded people to prevent them from committing such or similar offences.

In recent times, the jail administration is improving in consonance with the trends in modern criminology and penology and custody in jail of the criminals is utilised to reform them by training them to some avocation for which they are suited and by otherwise educating them to Become good citizens. But a short term sentence would not enable the jail authorities to do anything worthwhile with such prisoners On the other hand, the obvious adverse result would be to remove from the mind of the convict the fear of jail. Besides, there would be every chance of the prisoner meeting the hardened criminals in jail which may have deleterious effects on the short term prisoner.

In a recent Seminar held in New Delhi on ''Present Trends in Criminology'' which was well attended by several experts in the line from all over the country it was recommended that the Courts should refrain from passing short term sentences which would fail to serve any useful purpose but insted resort to either fine or any measure of reformation which is legitimate under the circumstances.

The Criminal Procedure Code of 1973 reflects the present trend in criminology and penology by incorporating a specific provision in Section 354(4) which makes it obligatory on the Court to apply its mind and to record reasons when imposing a sentence of imprisonment for a term of less than three months where the offence is punishable with imprisonment for a term of one year or more.

The Courts below appear to have entirely missed the salutary provision contained in Sec. 354(4) of the CrlPC. The offence under consideration viz, Sec. 500 IPC is punishable for more than one year. As such it attracts the provision of Sec. 354(4) CrlPC. It was incumbent on the Court to record its reasons for awarding sentence for less than 3 months. Neither the learned Magistrate nor the learned Sessions Judge has recorded any reasons in this behalf. They have entirely missed the aspect that the Court should refrain normally from passing a short term sentence instead of imposing fine on the accused. It is generally noticed that the salutary provision contained in Sec. 354(4) CrlPC is observed more in its breach by the Magistracy. It is necessary that they should properly understand and apply the useful provision incorporated in Sec. 354(4) of the CrlPC in the light of the observations made above.

In the circumstances, therefore, I am persuaded to set aside the short term sentence imposed on the accused for one month and instead impose a fine on him.

The learned Counsel appearing for the accused submitted that having regard to the capacity and status of the accused fine of Rs. l00 would meet the ends of justice. As against that the learned Counsel appearing for the complainant submitted that minimum fine of Rs. 200 should be imposed. I accept his submission and impose a fine of Rs. 200 on the accused instead of imprisonment for one month imposed by the learned Magistrate and confirmed by the learned Sessions Judge.

Another aspect which is emphasised in the new Criminal Proeedure Code and which is followed mostly in its breach by the Magistracy, in general, is the prevision made for awarding compensation to the injured. Section 357(1) states:

"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 less or injury caused by the offence, when compensation is, in the opinion of the Court, reeovereable by such person in a Civil Court;"

It may be noticed that the word ''substantial compensation'' in Cl(b) which was found in the old Code is advisably dropped in the present Code. Giving an explanation for this omission the Law Commission of India in its 41st report commenting on the advisability of dropping the Word ''substantial compensation'' from the old Secs. 5451(1)(b) CrlPC has Observed thus:

"Under Cl(b) of sub-sec(1) of Sec. 545, the Court may direct payment to any person compensation for any loss or injury caused by the offence when substantial compensation in the opinion of the Court is recoverable by such person in a Civil Court. The significance of the requirement that compensation should be recoverable in, a Civil Court is that the act which constitutes the offence in question should also be a tort. The word ''substantial'' appears to have been used to exclude cases where only nominal damages would be recoverable. We think it is hardly necessary to emphasize this aspect, since in any event it is purely within the discretion of the Criminal Court to order or not to order payment of compensation, and in practice they are not particularly liberal in utilising the provision. We propose to omit the word ''substantial'' from the clause."

Justice Krishna Iyer, as he then was of the Kerala High Court, in the case Re. Drugs Inspector, 1968 Ker.LT. 844, speaking on, the aspect has observed thus;

"Sec. 545(1)(a) CrlPC, is seldom taken not of by the Magistracy. This section has a social purpose to serve and has to be applied, in appropriate cases. Indeed, the primary purpose of criminal justice may be, not the adjustment of economic relations, but the adminis-ration of sanctions against individual offenders, ranging from monetary fines to long prison-terms and in extreme cases, capital punishment. But it cannot be said that the adjustment of financial losses is not the concern of criminal law at all."

The Law Commission of India in their 42nd Report in Chap.III, para 17 have observed, inter alia, thus:

"We have a fairly comprehensive provision for payment of compensation to the injured party under Sec. 545 of the CrlPC. It is regrettable that our Courts do not exercise their salutary powers under this section as freely and liberally as could be desired......The Public Proscutor ignores the plight of the victim of the offence and does not press for compensation on his behalf....."

Reparation to the victim of an offence has been receiving increasing attention in recent times. In part, this is due to the realisation that mere punishment of the offender, though it may exhaust the primary function of a criminal law, is not total fulfilment of the Rule of law. It has been observed that the injured party is not always adequately served by Civil Courts, and in the Criminal Court he often takes a back seat. Having given his evidence, he stands aside and watches the offended majesty of public justice being satisfied by conviction and sentence. He himself is fortunate if he gets compensation, or even his expenses. Often, he must have recourse to the Civil Courts to reclaim his property, and not infrequently may have suffered a loss or injury for which he cannot be compensated. Hence, it is that the Law Commission has emphasised that the Court should be liberal in utilising the powers vested in them in granting compensation to the injured in a criminal case and a specific provision has been incorporated in the CrlPC in Sec. 357. The attention of the Magistracy istherefore drawn to this provision with the hope that they may make liberal use of it when the occasion arises.

Adverting to the facts of the present case, the reputation of the complainant is injured. She has cause of action to recover damages in a Civil Court. In the circumstances, I direct that out of the total amount of fine of Rs. 200, when recovered, Rs. 100 shall be paid over to the complainant as part of compensation amount.

In the result, the appeal is partly allowed. I set aside the order of imprisonment and instead direct that the accused shall pay a fine of Rs. 200, in default to suffer simple imprisonment for one month. As directed above, when the fine amount is recovered, amount of Rs. 100 shall be paid over to the complainant as compensation.