REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1066 OF 2008
(Arising out of S.L.P.(Criminal) No.1080 of 2007)
MANISH JALAN -- APPELLANT
VERSUS
STATE OF KARNATAKA -- RESPONDENT
JUDGMENT
D.K. JAIN, J.:
Leave granted.
2. The sole appellant stands convicted under Section 279
of the Indian Penal Code, 1860 (for short `IPC’) for the
offence of driving on public way so rashly or
negligently as to endanger human life and also under
Section 304A, IPC for causing death by rash or
negligent act, not amounting to culpable homicide.
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The Trial Court sentenced him to undergo simple
imprisonment for one year and to pay fine of
Rs.5000/- for both the offences and in default to
undergo simple imprisonment for two months. On
appeal to the High Court, vide its judgment dated 10th
November, 2006 in Criminal Revision Petition No.159
of 2005, the High Court of Karnataka at Bangalore has
maintained the conviction but has reduced the
sentence to simple imprisonment for one year and a
fine of Rs.5000/- for the offence under Section 279,
IPC and simple imprisonment for six months and fine
of Rs.5000/- for offence under Section 304A, IPC.
This judgment of the High Court is under challenge in
this appeal by special leave.
3. Since learned senior counsel for the appellant has not
seriously questioned the correctness of the conviction
and has confined his arguments to the quantum of
sentence, we deem it unnecessary to refer to the
accusations against the appellant in greater detail. It
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would suffice to note that the appellant was charge-
sheeted for driving a tanker in a rash and negligent
manner so as to endanger human life and in the
process dashing against a Kinetic Honda scooter,
being driven by the deceased, who fell down and was
run over by the left wheel of the tanker. The deceased
succumbed to the injuries on way to the hospital. As
noted above, on appraisal of the evidence, both the
courts below have found the appellant guilty of the
offence under Sections 279 and 304A, IPC.
4. Mr. U.U. Lalit, learned senior counsel appearing for
the appellant submitted that having regard to the fact
that the mother of the victim has filed an affidavit,
inter alia, stating that she does not have any grievance
against the appellant as she believes that it was an act
of God and it was their destiny that their son left them
at an early age, the sentence of imprisonment awarded
to the appellant may be set aside. Learned senior
counsel also pleaded that the appellant was prepared
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to pay reasonable amount of compensation, which
may be determined by this Court to the mother of the
victim. In support, learned senior counsel drew our
attention to the affidavit filed by the mother of the
deceased, on issuance of notice to her. Para 6 of the
affidavit, on which emphasis was laid by the learned
counsel, reads thus:
“I state that being the mother and class I
heir of the victim, late Shri Vasant
Prabhu, I am competent and willing to
compound the offence against Shri
Manish Jalan. I state that I have no
objection whatsoever if this Hon’ble Court
wishes to set aside the conviction and
sentence against Shri Manish Jalan. For
this purpose, I am ready and willing to
receive such additional compensation
which this Hon’ble Court may feel
appropriate, just and reasonable.”
5. Having carefully glanced through the evidence on
record and the reasoning of the courts below, we do
not find any ground to interfere with the conviction of
the appellant under the afore-mentioned provisions.
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Hence, we reject the challenge of the appellant made
in this appeal to his conviction.
6. On the question of compounding of the offences, as
prayed for in the affidavit, Section 320 of the Code of
Criminal Procedure, 1973 (for short `CrPC’) dealing
with “compounding of offences”, provides that only
such offences as are included in the two tables,
provided thereunder can be compounded. Sub-
section (9) of Section 320 CrPC imposes a specific bar
on compounding of other offences, not included in the
two tables. Admittedly, offences punishable under
Sections 279 and 304A, IPC do not figure in the said
tables and are, therefore, not compoundable.
Conscious of the legal position, learned counsel did
not press for compounding of the offences.
Accordingly, we reject the prayer for compounding.
7. The next question for consideration is whether facts of
the case, particularly the supervening circumstance
brought on record by way of the affidavit of the mother
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of the victim, warrant interference in the quantum of
sentence awarded to the appellant?
8. As noted above, pursuant to the notice issued to the
heirs of the deceased, the mother of the deceased,
namely, Smt. H. Sunanda Prabhu, has filed the afore-
mentioned affidavit. Vide order dated 30th November,
2007, the District Judge, Mangalore was directed to
make necessary inquiry through his own sources
whether the said affidavit had, in fact, been sworn by
Smt. H. Sunanda Prabhu and ascertain the
authenticity thereof. In his report dated 8th January,
2008, the Principal District Judge, Mangalore, has
reported that the said affidavit has been sworn by
Smt. H. Sunanda Prabhu before a Notary on 9th July,
2007 and the same is authenticated.
9. The law which enables the Court to direct payment of
compensation to the dependents of the victim is found
in Section 357 CrPC (1973), corresponding to Section
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545 of the 1898 Code. The relevant portion of Section
357 reads as follows:
“357. Order to pay compensation.–(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 properly
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 shelf all
offence, in paying in, 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) … … …
(2) … … …
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(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 reason of
the act for which the accused person has
been so sentenced.
(4) An order under this section may
also be made by all Appellate Court or by
the High Court or Court of Session when
exercising its powers of revision.”
10.Sub-section (1) of Section 357 clothes the Court with
the power to award compensation to a victim of the
offence out of the sentence of fine imposed on the
accused. Sub-section (3) of the Section contemplates
that when a Court imposes a sentence, of which fine
does not form a part, the Court may, when passing
judgment, order the accused 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 act for which the accused
person has been so sentenced. In other words, sub-
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section (1) provides for application of an amount of
fine as compensation when it forms part of the
sentence whereas under sub-section (3) the Court can
direct the convicted person to pay compensation even
in cases where fine does not form part of the sentence.
The power vested in the Appellate Court or the High
Court or the Court of Sessions (in revision) to award
compensation under sub-section (3) of Section 357
CrPC is wide and is in addition to any other sentence
which may be awarded on conviction of a person.
Needless to add that it is no substitute for sentence on
conviction.
11. Though a comprehensive provision enabling the Court
to direct payment of compensation has been in
existence all through but the experience has shown
that the provision has rarely attracted the attention of
the Courts. Time and again the Courts have been
reminded that the provision is aimed at serving the
social purpose and should be exercised liberally yet
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the results are not very heartening. On this aspect,
Law Commission in its 42nd Report at para 3.17, inter
alia, observed:
“We have a fairly comprehensive
provision for payment of compensation to
the injured party under Section 545 of
the Criminal Procedure Code. It is
regrettable that our courts do not
exercise their salutary powers under this
Section as freely and liberally as could be
desired. The Section has, no doubt, its
limitations. Its application depends, in
the first instance, on whether the Court
considers a substantial fine proper
punishment for the offence. In the more
serious cases, the Court may think that a
heavy fine in addition to imprisonment
for a long term is not justifiable,
especially when the public prosecutor
ignores the plight of the victim of the
offence and does not press for
compensation on his behalf.”
12. In Hari Singh Vs. Sukhbir Singh & Ors.1, while
emphasising the need for making liberal use of the
provisions contained in Section 357 CrPC, this Court
has observed thus:
1
(1988) 4 SCC 551
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“It may be noted that this power of
Courts to award compensation is not
ancillary to other sentences but it is in
addition thereto. This power was
intended to do something to reassure the
victim that he or she is not forgotten in
the criminal justice system. It is a
measure of responding appropriately to
crime as well of reconciling the victim
with the offender. It is, to some extent, a
constructive approach to crimes. It is
indeed a step forward in our criminal
justice system.”
13. However, in awarding compensation, it is necessary
for the Court to decide if the case is a fit one in which
compensation deserves to be awarded. If the Court is
convinced that compensation should be paid, then
quantum of compensation is to be determined by
taking into consideration the nature of the crime, the
injury suffered and the capacity of the convict to pay
compensation etc. It goes without saying that the
amount of compensation has to be reasonable, which
the person concerned is able to pay. If the accused is
not in a position to pay the compensation to the
injured or his dependents to which they are held to be
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entitled to, there could be no reason for the Court to
direct such compensation. (See: Sarwan Singh &
Ors. Vs. State of Punjab2).
14. Very recently in Dilip S. Dahanukar Vs. Kotak
Mahindra Co. Ltd. & Anr.3 explaining the scope and
the purpose of imposition of fine and/or grant of
compensation, this Court observed as follows:
“The purpose of imposition of fine and/or
grant of compensation to a great extent
must be considered having the relevant
factors therefor in mind. It may be
compensating the person in one way or
the other. The amount of compensation
sought to be imposed, thus, must be
reasonable and not arbitrary. Before
issuing a direction to pay compensation,
the capacity of accused to pay the same
must be judged. A fortiori, an enquiry in
this behalf even in a summary way may
be necessary. Some reasons, which may
not be very elaborate, may also have to
be assigned; the purpose being that
whereas the power to impose fine is
limited and direction to pay
compensation can be made for one or the
other factors enumerated out of the
same; but sub- Section (3) of Section 357
does not impose any such limitation and
thus, power thereunder should be
2
(1978) 4 SCC 111
3
(2007) 6 SCC 528
13exercised only in appropriate cases. Such
a jurisdiction cannot be exercised at the
whims and caprice of a judge.”
15.True that in the instant case the appellant has been
found to be guilty of offences punishable under
Sections 279 and 304A, IPC for driving rashly and
negligently on a public street and his act
unfortunately resulted in the loss of a precious human
life. But it is pertinent to note that there was no
allegation against the appellant that at the time of
accident, he was under the influence of liquor or any
other substance impairing his driving skills. It was a
rash and negligent act simplicitor and not a case of
driving in an inebriated condition which is,
undoubtedly despicable aggravated offence warranting
stricter and harsher punishment.
16.Having regard to all these facts and bearing in mind
the fact that the mother of the victim has no grievance
against the appellant and has prayed for some
compensation, we are of the view that a lenient view
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can be taken in the matter and the sentence of
imprisonment can be reduced. We are of the opinion
that the ends of justice would be met if the sentence of
imprisonment is reduced to the period already
undergone but in addition thereto, the appellant
should be directed to pay an amount of Rs.1,00,000/-
to the mother of the deceased by way of compensation.
Learned counsel for the appellant, in fact, indicated
that his client was willing to pay that much amount.
We order accordingly.
17.Accordingly, the conviction of the appellant under
Sections 279 and 304A, IPC is maintained. However,
the substantive sentence of imprisonment is reduced
to the period already undergone. Imposition of fine is
also affirmed. Besides, the appellant shall pay an
amount of Rs.1,00,000/- to the mother of the victim,
namely, Smt. H. Sunanda Prabhu, by way of
compensation within three months from today. If the
appellant fails to pay the said amount within the
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stipulated time, the same shall be recovered as per the
procedure prescribed under Section 431 CrPC and be
paid to Smt. H. Sunanda Prabhu.
18.The appeal is partly allowed and the order of the High
Court is modified to the extent indicated above.
…………………………………….J.
( C.K. THAKKER )
…………………………………….J.
( D.K. JAIN )
NEW DELHI;
JULY 11, 2008.