Bharathan vs State of Kerala

P.S. Gopinathan, J.—Revision petitioners are accused 1, 3, 4 and 5 in C.C. 448 of 1997 on the file of the Judicial Magistrate of the First Class, Kodungallur. They, along with the second accused, were prosecuted by the Sub Inspector of Police, Valapad, in Crime No. 236 of 1997 alleging offence under Ss. 143, 147, 447, 427 read Section 149 I.P.C. After trial, the second accused was found not guilty and the petitioners were found guilty. Taking into account of the facts and circumstances of the case and that petitioners 3 to 5 are ladies, the learned Magistrate was pleased to release the petitioners u/s 3 of the Probation of Offenders Act. The first revision petitioner was ordered to pay Rs. 2,000/- as compensation to the complainant u/s 357(3) of the Code of Criminal Procedure. Feeling aggrieved, they went in appeal before the Sessions Judge, Thrissur. The IIIrd Additional Sessions Judge, to whom the appeal was made over, by judgment dated 26.04.2002 allowed the appeal in part. The conviction for offence under Ss. 143 and 147 was set aside. The conviction for offence under Ss. 447 and 427 I.P.C. was sustained with the aid of Section 34 I.P.C. Assailing the legality, correctness and propriety of the above conviction and the order to pay compensation, this Revision Petition was filed.

I have heard Sri. Shaju Purushothaman, the learned counsel appearing for the petitioners and perused the judgments of the Courts below. Having heard the counsel and perusing the records, I find little reason to interfere with the conviction for offence under Ss. 447 and 427 read with 34 I.P.C. The conviction is based upon cogent evidence. Learned counsel for the revision petitioners, further submitted that the order to pay compensation u/s 357(3) of the Code of Criminal Procedure is not sustainable. I find merit in the submission because sub-clauses (1) and (2) of Section 357 Cr. PC operate only when a sentence is imposed and in the case on hand no sentence is imposed. Therefore, order awarding compensation u/s 357(3) Cr.PC is not sustainable. But, at the same time, I find that in a case of release u/s 3 of Probation of Offenders Act, the Court is empowered u/s 5 of the Probation of Offenders Act to award compensation to the de facto complainant for the loss or injury sustained. The case on hand is a fit case to award compensation. Therefore, I find that the order of the Courts below to pay compensation is not at all illegal and only the section is misquoted. Misquoting the section would not affect the core of the order. Other than that, I find no error, illegality or impropriety in the judgment impugned.

In the above circumstance, this Revision Petition is disposed of. While confirming, the conviction, the order to pay compensation awarded by the Trial Court and confirmed in appeal is modified to one u/s 5 of the Probation of Offender''s Act. In all other respects, order impugned is confirmed. The revision petitioner is granted one month to remit the compensation.