1. The applicant has preferred this revision being aggrieved by the order dated 26.07.2016 passed by the Seventh Additional Sessions Judge, Gwalior in Criminal Appeal No.207/2016 affirming the judgment of the trial Court dated 16.03.2016 passed in Criminal Case No.12549/2014 convicting the applicant for an offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005 and sentenced to undergo imprisonment till the rising of the Court and to pay Rs.30,000/- as compensation under Section 357(3) of Cr.P.C. to the complainant Smt. Kalpana Asure and further imprisonment for three months in case of default of payment of the compensation amount.
2. Learned counsel for the applicant questioned the judgment of the appellate Court solely on the ground that the Additional Sessions Judge has committed in law illegality by awarding the sentence of three months in case of default of payment of the compensation amount. According to him, if the applicant fails to deposit the compensation amount, the only mode available to the Court to recover any defaulted amount by way of compensation is to take recourse to the provisions of Section 421 Cr.P.C.
3. To the contrary, the learned counsel for the respondent submits that the impugned order is based on legal sanctity which thus calls no interference.
4. Having considered the rival submissions, it appears from the perusal of the record that the Additional Chief Judicial Magistrate, Gwalior convicted the applicant for an offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005 and sentenced to undergo RI for one year and to pay fine of Rs.1000/-. On appeal, the Additional Sessions Judge confirmed the judgment of conviction but modified the sentence and reduced it from one year till rising of the Court and to pay compensation of Rs.30,000/- to the complainant under Section 357(3) of Cr.P.C. and in default to undergo simple imprisonment for six months.
5. In the case of Hari Sing Vs. Sukhbir Singh & Others, reported in (1988) 4 SCC 551, the Hon''ble Apex Court has held that since the imposition of compensation under Section 357(3) Cr.P.C. was on account of social concern, the Court could enforce the same by imposing sentence in default, particularly when no mode has been prescribed in the Code for recovery of sums awarded as compensation in the event, the same remained unpaid.
6. In the case of Sugnathi Suresh Kumar vs. Jagdishan, (2002) 2 SCC 420, the Hon''ble Supreme Court observed as under :-
"When this Court pronounced in Hari Singh v.
Sukhbir Singh that a court may enforce an
order to pay compensation "by imposing a
sentence in default" it is open to all Courts in
India to follow the said course. The said legal
position would continue to hold good until it is
overruled by a larger Bench of this Court."
7. In the context of provision of Section 357 of
Cr.P.C., this Hon''ble Court in the case of Vijayan vs.
Sadanandan K. & Another, 2009 Cr.L.J. 2957, has
observed in the following manner :-
19. In our view, the provision for grant of
compensation under Section 357(3) Cr.P.C. and the
recovery thereof makes it necessary for the
imposition of a default sentence as was held by this
Court firstly in Hari Singh''s case (supra) and
thereafter in Sugnathi Suresh Kumar''s case (supra).
In our view, the law has been correctly stated in the
said two decisions. As we have mentioned
hereinbefore, when the decision of this Court in
Hari Singh''s case (supra) was holding the field, the
learned Single Judge of the High Court had wrongly
relied on the decision of the Kerala High Court in
Rajendran''s case (supra). The power to impose a
default sentence in case of non-payment of
compensation under Section 357(3) Cr.P.C. has
been duly recognized by this Court and the
arguments advanced to the contrary on behalf of the
Petitioner must, therefore, be rejected.
20. Section 357 Cr.P.C. bears the heading "Order To
Pay Compensation". It includes in sub-Section (1) the power
of the Court to utilize a portion of the fine imposed for the
purpose of compensating any person for any loss or injury
caused by the offence. In addition, Sub-Section (3) provides
that when a sentence is imposed by the Court, of which fine
does not form a part, the Court may, while 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
suffers any loss or injury by reason of the act for which the
accused person has been so sentenced. It is true that the said
provision does not include the power to impose a default
sentence, but read with Section 431 Cr.P.C. the said difficulty
can be overcome by the Magistrate imposing the sentence. To
appreciate the said legal position, the provisions of Section
431 are set out hereinbelow:-
"431. Money ordered to be paid recoverable as fine. Any
money (other than a fine) payable by virtue of any order
made under this Code, and the method of recovery of
which is not otherwise expressly provided for, shall be
recoverable as if it were a fine:
Provided that section 421 shall, in its application to an
order under section 359, by virtue of this section, be
construed as if in the proviso to sub-section (1) of section
421, after the words and figures "under section 357", the
words and figures "or an order for payment of costs under
section 359" had been inserted."
Section 431 makes it clear that any money other than a fine
payable on account of an order passed under the Code shall
be recoverable as if it were a fine which takes us to Section 64
I.P.C.
21. Section 64 IPC makes it clear that while imposing a
sentence of fine, the Court would be competent to include a
default sentence to ensure payment of the same. For the sake
of reference, Section 64 IPC is set out herein below:-
"64. Sentence of imprisonment for non- payment of
fine.--In every case, of an offence punishable with
imprisonment as well as fine, in which the offender is
sentenced to a fine, whether with or without
imprisonment,
and in every case of an offence punishable with
imprisonment or fine, or with fine only, in which the
offender is sentenced to a fine,
it shall be competent to the Court which
sentences such offender to direct by the sentence that,
in default of payment of the fine, the offender shall
suffer imprisonment for a certain term, in which
imprisonment shall be in excess of any other
imprisonment to which he may have been sentenced
or to which he may be liable under a commutation of
a sentence."
22. The provisions of Sections 357(3) and 431 Cr.P.C.,
when read with Section 64 IPC, empower the Court, while
making an order for payment of compensation, to also include
a default sentence in case of non-payment of the same. The
observations made by this Court in Hari Singh''s case (supra)
are as important today as they were when they were made and
if, as submitted by Dr. Pillay, recourse can only be had to
Section 421 Cr.P.C. for enforcing the same, the very object of
Sub-Section (3) of Section 357 would be frustrated and the
relief contemplated therein would be rendered somewhat
illusory.
8. Taking note of the reproduced portion of the
judgment in Vijayan (supra) in the light of the facts of
the present case, it is clear that while awarding
compensation under Section 357(3) Cr.P.C., the Court is
within its jurisdiction to add a default sentence of
imprisonment.
9. In view of the aforesaid analysis, this revision has no substance and is hereby dismissed.
