Manish Jalan vs State Of Karnataka

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. 2

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 3

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 4

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. 5

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 6

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 7

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) ... ... ...

8 (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- 9

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 10

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 11

"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 12

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 13

exercised 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 14

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 15

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.