Friday, 1 April 2016

Whether court can award default sentence for non-payment of fine when he has given benefit of probation of offender Act to accused?


The Apex Court in Isher Das v. The State of

Punjab (AIR 1972 S.C. 1295), referring to the Prevention

of Food Adulteration Act and the Probation of Offenders

Act held thus:-

              " Mr Mahajan has argued that if the trial

        magistrate took the view that the accused-appellant in

        view of his age, should not be sentenced to undergo

        imprisonment, the learned magistrate should still have

        imposed the sentence of fine as prescribed by sub-

        section (1) of section 16 of the Act. In this respect, we

        are of the opinion that a sentence of fine also carries

        with it the consequence of imprisonment in case the

        accused fails to pay the fine. As the object of Probation



        of Offenders Act is to avoid imprisonment of the person


        covered by the provisions of that Act, the said object


        cannot be set at naught by imposing a sentence of fine


        which would necessarily entail imprisonment in case


        there is a default in payment of fine."


      20.    An injunction is enacted by the Act against

passing of the sentence of imprisonment, which the court

under the normal circumstances and law is empowered to

pass. The imposition of default sentence on a person being

dealt with under Sections 3 and 4 of the Act is against the

policy of the Act as contained in the Preamble and the

Object of the Act. The Apex Court in Isher Das (supra)

held that the object of Probation of Offenders Act is to

avoid imprisonment of the person covered by the

provisions of that Act. Once the court is satisfied that there


exists ground for releasing the offender after admonition

under Section 3 of the Act or awarding deferred sentence

under Section 4 of the Act, it will be against the object,

purpose and spirit of the said provisions to direct the

indicted person to go to jail to serve out the sentence in

lieu of payment of compensation.     In such a situation, the

purpose of the provisions of Section 3 or Section 4 of the

Act is likely to be frustrated. As the object of Probation of

Offenders Act is to avoid imprisonment of the person


covered by the provisions of the Act, the said object cannot


be set at naught by imposing default sentence. Since the

object of the Act is to reform and rehabilitate the offender

as a useful and self-reliant member of the society without

subjecting him to deleterious effects of jail life, I am of the


view that imposing default sentence for non-payment of

compensation under Section 5 of the Act is not legal and

correct. For the said reasons, the courts below went wrong

in awarding the default sentence for non-payment of

compensation under Section 5 of the Act.
                          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                     PRESENT:

                    THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

            THURSDAY, THE 29TH DAY OF OCTOBER 2015
                                     Crl.Rev.Pet.No. 1520 of 2010 
                                     
           SCARIA @ KARIACHETAN,
Vs

           STATE OF KERALA,                
Citation;2016 CRLJ530


      The revision petitioner is the accused in C.C. No.397

of 2006 on the files of the Court of the Judicial Magistrate

of First Class, Nilambur.

     2. The trial court convicted the revision petitioner

under Sections 447 and 324 of I.P.C. and released him

under Section 4 of the Probation of Offenders Act,1958, on

his executing a bond for Rs.10,000/- with two solvent

sureties, each for the like sum undertaking to keep peace

and maintain good behaviour for one year and to appear


and receive the sentence as and when called for within the

said period of one year. The revision petitioner was also

directed to pay a sum of Rs.2,000/- to PW3 as

compensation under Section 5 of the Probation of

Offenders Act      with    a   default clause   for  simple

imprisonment for one month. The appeal filed against the

said conviction and order of probation was dismissed.

      3. The prosecution allegation is that on 27.10.2006 at

about 6.30 p.m., the revision petitioner trespassed into the

court yard of the house of PW3 and caused hurt on him by

hitting him with a torch.

      4. Before the trial court, PW1 to PW6 were examined

and Exts.P1 to P4 were marked for the prosecution, besides

identifying MO1 torch. Exts.D1 to D3 were marked for the


defence.

      5. PW3 is the injured, who stated about the incident

in tune with the prosecution case. According to PW3, on

27.10.2006 at about 6.30 p.m., the revision petitioner

uttered abusive words against PW2, who was the Vicar of

the church, when PW2 reached the court yard of the house

of PW3.       On seeing this, PW3 intervened.     Then, the

revision petitioner hit PW3 with MO1 torch, causing

injuries on him.

      6. PW2 is the occurrence witness, who supported the

evidence of PW3 in all material aspects.

      7. It has been argued by the learned counsel for the

revision petitioner that eventhough there was no medical

evidence before the Court to prove the injuries sustained by


PW3, the courts below convicted the revision petitioner

under Section 324 I.P.C. and consequently, the conviction

and sentence under Section 324 I.P.C. cannot be sustained.

      8.   Per contra, the learned Public Prosecutor has

argued that since there was evidence of PW2 and PW3 with

regard to the injuries sustained by PW3, the courts below

rightly convicted the revision petitioner under Section 324

I.P.C., particularly when the weapon with which the

infliction was made by the revision petitioner was also

recovered and identified.

      9.   In this context, it will be profitable to extract

Section 324 I.P.C., which reads thus :-

             "324. Voluntarily causing hurt by dangerous

       weapons or means:-      Whoever, except in the case

       provided for by section 334, voluntarily causes hurt by


       means of any instrument for shooting, stabbing or

       cutting, or any instrument which, used as weapon of

       offence, is likely to cause death, or by means of fire or

       any heated substance, or by means of any poison or any

       corrosive substance, or by means of any explosive

       substance or by means of any substance which it is

       deleterious to the human body to inhale, to swallow, or

       to receive into the blood, or by means of any animal,

       shall be punished with imprisonment of either

       description for a term which may extend to three years,

       or with fine, or with both."



It is clear from Section 324 I.P.C. that in order to attract the

offence under Section 324 I.P.C., hurt should be caused by

means of any weapon as described under Section 324 I.P.C.



      10. Hurt is defined in Section 319 I.P.C., which reads

as follows:-

             "319. Hurt:- Whoever causes bodily pain,



       disease or infirmity to any person is said to cause

       hurt".



      11. It is clear from Section 319 I.P.C. that in order to

constitute hurt, even bodily pain is sufficient.           The

evidence of PW3 would show that PW3 was admitted in

the hospital after the incident in this case, as he sustained

injury in the incident. PW3 stated that he fell down and

became unconscious when the revision petitioner hit with

MO1 torch on his face. PW2 also supported the evidence

of PW3 in all material aspects. Ext.P2 F.I.Statement would

also show that PW3 sustained hurt in the incident. Thus,

the evidence of PW2 and PW3 coupled with Ext.P2

F.I.Statement would prove that PW3 sustained hurt in the

incident. The wound certificate was, in fact, produced


before the trial court. It is borne out from the records that

the doctor, who examined PW3 and issued the wound

certificate,    went abroad      after closing the hospital.

Therefore, the wound certificate was not proved before the

trial court. However, since there is reliable evidence of

PW2 and PW3, the absence of medical evidence would not

affect the prosecution case, particularly when         PW3

sustained only hurt in the incident. The evidence of PW2

and PW3 would show that MO1 was used by the revision

petitioner to inflict injury on PW3. MO1 is a torch having

a length of 18 c.m. as per Ext.P3 seizure mahazar.

Therefore, MO1 is, no doubt, an instrument which if used

as a weapon of offence, is likely to cause death.       The

evidence discussed above would show that the revision


petitioner voluntarily caused hurt on PW3 with a dangerous

weapon, namely, MO1 torch. Therefore, the courts below

rightly convicted the revision petitioner under Section 324

I.P.C.   In view of the above reasons, the argument in this

regard advanced by the learned counsel for the revision

petitioner cannot be accepted.

      12. The courts below, after evaluating the oral and

documentary evidence adduced by the prosecution,

concurrently found that the revision petitioner committed

the offence under Sections 447 and 324 I.P.C. Since there

is concurrent finding    on facts,   this Court will not be

justified in interfering with the same unless the finding is

perverse or incorrect. No circumstance has been brought to

my notice to indicate that the concurrent finding by the



courts below was perverse or incorrect. For the said reason,

the concurrent finding by the courts below that the revision

petitioner committed the offence under Sections 447 and

324 I.P.C. does not warrant any interference by this Court.




      13. The learned counsel for the revision petitioner has

argued that the courts below went wrong in awarding

imprisonment for non-payment of compensation under

Section 5 of the Probation of Offenders Act and in the said

circumstances, the said part of the order cannot be

sustained.

      14.    The learned Public Prosecutor has also fairly

conceded that the courts below ought not have awarded

default sentence for non-payment of compensation under


Section 5 of the Probation of Offenders Act.

      15. The preamble to the Probation of Offenders Act

reads thus:-

              "An Act to provide for the release of offenders

on probation or after due admonition and for matters

connected therewith."

The object of the Probation of Offenders Act is the

reformation and rehabilitation of the offender as a useful

and self-reliant member of the society without subjecting

him to the deleterious effects of jail life.

      16. Section 5 of the Act empowers the Court to direct

payment of compensation and costs in the event of

invoking Section 3 or Section 4 of the Act. Therefore,

while releasing the offender after admonition under Section


3 of the Act and awarding deferred sentence under Section

4 of the Act, the court has the power to take steps to

compensate the victim of the crime under Section 5 of the

Act.

      17. Section 5 of the Probation of Offenders Act is

extracted hereunder:-

           "5.     Power of court to require released

      offenders to pay compensation and costs:-(1) The

      court directing the release of an offender under section

      3 or section 4, may, if it thinks fit, make at the same

      time a further order directing him to pay-

           (a) such compensation as the court thinks

      reasonable for loss or injury caused to any person by

      the commission of the offence; and

           (b) such costs of the proceedings as the court

      thinks reasonable.

           (2) The amount ordered to be paid under sub-

      section (1) may be recovered as a fine in accordance


      with the provisions of sections 386 and 387 of the

      Code.

           (3) A civil court trying any suit, arising out of the

      same matter for which the offender is prosecuted, shall

      take into account any amount paid or recovered as

      compensation under sub-section (1) in awarding

      damages."



      18. It is clear from sub-section (2) of 5 of the Act that

the amount ordered to be paid under sub-section (1) may

be recovered as a fine in accordance with the provisions of

Sections 386 and 387 of the Code. Sections 386 and 387

of the old Code correspond to Sections 421 and 422 of the

new Code. Therefore, the compensation ordered under

Section 5 of the Act can be realised by resorting to the

procedure under Section 421 of the Code.                 Proviso to

Section 421 (3) of the Code provides that no warrant as



provided under Section 421 of the Code shall be executed

by the arrest or detention in prison of the offender.

Therefore, for the recovery of the fine, there is inhibition in

arresting and detaining the offender in custody.

      19. The Apex Court in Isher Das v. The State of

Punjab (AIR 1972 S.C. 1295), referring to the Prevention

of Food Adulteration Act and the Probation of Offenders

Act held thus:-

              " Mr Mahajan has argued that if the trial

        magistrate took the view that the accused-appellant in

        view of his age, should not be sentenced to undergo

        imprisonment, the learned magistrate should still have

        imposed the sentence of fine as prescribed by sub-

        section (1) of section 16 of the Act. In this respect, we

        are of the opinion that a sentence of fine also carries

        with it the consequence of imprisonment in case the

        accused fails to pay the fine. As the object of Probation



        of Offenders Act is to avoid imprisonment of the person

        covered by the provisions of that Act, the said object

        cannot be set at naught by imposing a sentence of fine

        which would necessarily entail imprisonment in case

        there is a default in payment of fine."

      20.    An injunction is enacted by the Act against

passing of the sentence of imprisonment, which the court

under the normal circumstances and law is empowered to

pass. The imposition of default sentence on a person being

dealt with under Sections 3 and 4 of the Act is against the

policy of the Act as contained in the Preamble and the

Object of the Act. The Apex Court in Isher Das (supra)

held that the object of Probation of Offenders Act is to

avoid imprisonment of the person covered by the

provisions of that Act. Once the court is satisfied that there


exists ground for releasing the offender after admonition

under Section 3 of the Act or awarding deferred sentence

under Section 4 of the Act, it will be against the object,

purpose and spirit of the said provisions to direct the

indicted person to go to jail to serve out the sentence in

lieu of payment of compensation.     In such a situation, the

purpose of the provisions of Section 3 or Section 4 of the

Act is likely to be frustrated. As the object of Probation of

Offenders Act is to avoid imprisonment of the person

covered by the provisions of the Act, the said object cannot

be set at naught by imposing default sentence. Since the

object of the Act is to reform and rehabilitate the offender

as a useful and self-reliant member of the society without

subjecting him to deleterious effects of jail life, I am of the


view that imposing default sentence for non-payment of

compensation under Section 5 of the Act is not legal and

correct. For the said reasons, the courts below went wrong

in awarding the default sentence for non-payment of

compensation under Section 5 of the Act.

      In the result, this revision petition stands allowed in

part confirming the      conviction, the order of probation

under Section 4 of the Act and the order of compensation

under Section 5 of the Act, passed by the trial court as

confirmed by the appellate Court. However, the default

sentence awarded by the courts below under Section 5 of

the Act stands set aside.

                                    Sd/-
                        B.SUDHEENDRA KUMAR,
                                    JUDGE
dl/30.10.2015



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