S. Kannan vs D.V. Padmaja and Another

Whether the order passed by the learned Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad in Crl. M.P. No. 559 of 1996 in C.C. No. 251 of 1993 is legal and tenable is the question raised in this petition u/s 482 of the Criminal Procedure Code (for short ''the Cr.P.C.'') ?

The petitioner is the sole accused in C.C. No. 251 of 1993 which is pending on the file of the learned Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad. One D. V. Padmaja, who is respondent No. 1 here, is the defacto-complainant. The petitioner is charged for the offence u/s 493 of the Indian Penal Code (for short ''the I.P.C.''). After framing of the charges, the petitioner was facing trial. Several witnesses on behalf of the prosecution were examined and when the case was fixed for arguments, the defacto-complainant filed an application for grant of interim compensation u/s 357, Cr.P.C. The learned Additional Metropolitan Sessions Judge, before the delivery of judgment, considered the said application and granted interim compensation to respondent No. 1 at the rate of Rs. 1,000/- p.m. by an order dated 16-5-1996.

The learned Counsel for the petitioner contends that Section 357 of Cr.P.C. does not empower the trial Court to award compensation before the delivery of judgment and before holding the accused guilty of the charges. The learned Public Prosecutor was unable to justify the order passed by the learned Additional Metropolitan Sessions Judge.

Before the point involved is considered it is necessary to reproduce the provisions of Section 357 of Cr.P.C. The section is as follows :-

"Section 357(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 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) When any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

(d) When any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled to.

(2) If the fine is imposed in a case which is subject to appeal, 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.

(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 fact for which the accused person has been so sentenced.

(4) An order under this section may also be made by an appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section."

It requires not much exercise to understand that these provisions come into play at the time of passing of the judgment in the case and when the accused person is convicted of an offence. It is only when the Court imposes sentence of fine or any sentence of which fine forms a part that the provisions of Section 357 of Cr.P.C. can be made applicable. Naturally on plain reading of the section it is impermissible for the Court to order payment of compensation before judgment is delivered and accused is found guilty. If the payment of compensation cannot be ordered before delivery of judgment, it is manifest that the interim payment of compensation before the delivery of judgment and before finding the accused guilty, cannot be ordered by the Court. This being quite evident from the reading of the section, it is necessary now to find out as to what reasons were supplied by the learned Additional Metropolitan Sessions Judge for awarding interim compensation in the instant case. The learned Additional Metropolitan Sessions Judge in her order has contended that the trial of the case was prolonged for four years. She further observed that by virtue of the acts of respondent (petitioner/accused) he degraded the life of the defacto-complainant and her right to liberty and freedom and her human dignity was violated. The learned Additional Metropolitan Sessions Judge apparently thought that the decision in Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty, , was a complete answer to the objections raised by the petitioner for granting of the interim compensation u/s 357 of Cr.P.C. In particular the learned Additional Metropolitan Sessions Judge has relied upon para 17 of the aforesaid case. Para-17 is as follows (Para 18 at p. 928 of AIR) :-

"17. This decision recognises the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalisation of Scheme by the Central Government. If the Court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation which should also be provided in the Scheme. On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women''s Forum Vs. Union of India (UOI) and Others, , the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the Courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life."

The learned Additional Metropolitan Sessions Judge has misunderstood the said judgment. The careful reading of the said judgment will suggest that the Apex Court has referred to earlier decision rendered by it in Delhi Domestic Working Women''s Forum Vs. Union of India (UOI) and Others, . Para 17 which is extracted by the learned Metropolitan Sessions Judge was with reference to the observations made in the Delhi Domestic Working Women''s case. In the Delhi Domestic Working Women''s case, the Court pointed out what are the difficulties in the present Criminal Justice System wherein the victims of rape and like offences have to suffer for a long time and are humiliated by police. It was in this background that the Court thought that it was necessary to lay down certain guidelines for assisting the victims of rape. The Court further observed that it would be necessary for the Government to evolve a scheme to wipe out the tears of such unfortunate victims. The parametres of such scheme were given by the Court. The Court pointed out that the compensation to the victim shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earning due to the pregnancy and the expenses of the child but if that occurred as a result of the rape. In para-17 the Court has observed that there is no reason to deny the Court the right to award interim compensation which should also be provided in the scheme. It will thus be clear that what was pointed out by the Apex Court was a formulation of a scheme and to provide in the scheme a clause empowering the Court to award interim compensation. Thus the Apex Court has nowhere construed the existing provision of Section 357 of Cr.P.C. as empowering the trial Court to award interim compensation. Indeed as the section stands at present it would be impermissible for the trial Court to award any interim compensation.

The learned Additional Metropolitan Sessions Judge appears to have totally misunderstood the judgment though the Apex Court has granted interim compensation to the victim in that case. The basis for granting such interim compensation in Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty, is to be found in para 18 of the judgment. The Court observed (Para 19 at p. 928 of AIR) :

"Apart from the above, this Court has the inherent jurisdiction to pass any order it considers fit and proper in the interest of justice or to do complete justice between the parties."

Thus the Apex Court was simply reiterating that it has inherent jurisdiction to pass any order which it considers fit and proper in the interest of justice. This power inheres in the Supreme Court. Further more, the Apex Court while exercising it jurisdiction can pass any order as is necessary for doing complete justice in any cause or matter pending before it. This is under Article 142 of the Constitution. Thus the powers of the Supreme Court are very wide and in fact without limitation when the Apex Court thinks that in any particular order is required to be passed to do complete justice between the parties. The Supreme Court was exercising those powers while granting interim compensation to the victim in Bodhisattwa Gautam''s case. The learned Additional Metropolitan Sessions Judge has misunderstood the said judgment and has usurped the powers which did not vest in her in granting interim compensation.

There is no doubt that the learned Additional Metropolitan Sessions Judge was motivated to pass the impugned order under an erroneous belief that she could pass such order for doing social justice. However, she forgot that she has to act only in accordance with law. The provisions of Criminal Procedure Code or of any other law do not empower the trial Courts to grant such interim compensation. The order under challenge is therefore totally without jurisdiction and has to be quashed. The order being totally without jurisdiction can very well be quashed by exercising the powers u/s 482, Cr.P.C. by this Court. In the circumstances, the Criminal Petition is allowed and the impugned order is quashed. It is needless to state that the learned Additional Metropolitan Sessions Judge can pass appropriate orders as provided by Section 357 of Cr.P.C. at the time of passing the judgment if the accused is found to be guilty of the offence requiring sentence of fine.

The Criminal Petition is accordingly allowed.

Petition allowed.