Chander Shekhar Diwan vs The State

S.P. Garg, J.—Chander Shekhar Diwan (the appellant), Bhoop Singh and Saroj were sent for trial in case FIR No. 439/2001 PS Ambedkar Nagar for committing offences under Sections 308/34 IPC. The Trial Court by a judgment dated 27.05.2003 in Sessions Case No. 57/2002, however, held all of them guilty for committing offences under Sections 323/34 IPC. By an order dated 02.06.2003, they were released on probation subject to payment of compensation of Rs. 20,000/- in all. It is apt to note that State did not challenge the acquittal u/s 308 IPC. It appears that Bhoop Singh and Saroj have not opted to file appeal. It further reveals that the compensation amount was paid in compliance of the order by the convicts and was released to the victim - Satya Devi. During the course of arguments, counsel for the appellant assailed only the sentence order as it did not prescribe the period of probation. Counsel further challenged jurisdiction of the Trial Court to order payment of compensation in view of ''Ankush Shivaji Gaikwad vs. State of Maharashtra'' in Crl. A. No. 689/2013.

I have heard the learned counsel for the parties and have examined the record. Since the appellant has not opted to challenge findings on conviction under Sections 323/34 IPC in the presence of overwhelming evidence, the conviction u/s 323/34 IPC is affirmed. It is true that the sentence order does not reflect the duration for which the convicts were released on probation. It also does not reveal the quantum of surety bonds to be executed by the convicts. It seems that due to inadvertence, the period and the amount of bonds could not be incorporated in the sentence order dated 02.06.2003. No clarification was sought at the time of execution of the required bonds by the convicts. Trial Court record reveals that the appellant - Chander Shekhar Diwan executed the required bonds to keep peace and be of good behaviour for one year in the sum of Rs. 10,000/-. This bond, executed on 02.06.2003, was accepted by the Trial Court. Apparently, the intention of the Court while releasing the appellant on probation was that he was to execute the bond in the sum of Rs. 10,000/- for a period of one year. The appellant filed application dated 05.06.2003 to deposit the bankers cheque No. 910963 dated 04.06.2003 for a sum of Rs. 10,000/- in the name of victim - Satya Devi in compliance of the order dated 02.06.2003. The said application also contained averment that the appellant was ordered to be released on probation for a period of one year on his furnishing bonds in the sum of Rs. 10,000/-. Beside this, Section 360 of Criminal Procedure Code puts an outer limit whereby the period of such bond cannot to exceed three years. In the instant case, the said period is already over.

u/s 357(3) Cr. P.C., the Courts have ample powers to award compensation to the victim. In a recent judgment ''Ankush Shivaji Gaikwad vs. State of Maharashtra'', in Crl. A. No. 689/2013 decided on 03.05.2013, the Supreme Court observed:

This Court has through a line of cases beginning with Hari Singh''s case (supra) held that the power to award compensation u/s 357 is not ancillary to other sentences but in addition thereto. It would necessarily follow that the Court has a duty to apply its mind to the question of awarding compensation u/s 357 too........

Section 357 Code of Criminal Procedure confers a duty on the Court to apply its mind to the question of compensation in every criminal case. It necessarily follows that the Court must disclose that it has applied its mind to this question in every criminal case......

To sum up: While the award or refusal of compensation in a particular case may be within the Court''s discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order u/s 357 Code of Criminal Procedure would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family.

In the instant case, the convicts including the appellant had prayed to release on probation. The Court instead of awarding substantive sentence to the convicts for committing offences under Sections 323/34 IPC considered their prayer and granted them probation. I find no illegality or irregularity in the sentence order whereby reasonable compensation was ordered to be paid to the victim while releasing the convicts on probation. The appeal is unmerited and is dismissed. Trial Court record be sent back forthwith.