CRIMINAL PROCEDURE – whether by virtue of Section 357(2) Cr.P.C., the said fine which was part of sentence automatically was stayed till the decision of the appeal and would not have been directed by the High Court to be deposited by the appellant.= We, however, make it clear that Appellate Court while exercising power under Section 389 Cr.P.C. can suspend the sentence of imprisonment as well as of fine without any condition or with conditions. There are no fetters on the power of the Appellate Court while exercising jurisdiction under Section 389 Cr.P.C.. The Appellate Court could have suspended the sentence and fine both or could have directed for deposit of fine or part of fine.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.406 OF 2018

(ARISING OUT OF SLP(CRL.)NO.1994 OF 2018)

SATYENDRA KUMAR MEHRA

@ SATENDERA KUMAR MEHRA … PETITIONER

VERSUS

THE STATE OF JHARKHAND … RESPONDENT

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed against an order of the High

Court of Jharkhand at Ranchi in Criminal Appeal NO.176 of 2018

by which High Court by allowing I.A.No. 892 of 2018 filed by

the appellant, has directed to grant suspension of sentence

of the appellant. The High Court further directed that the

appellant should also deposit the fine amount awarded before

the court below. The appellant is aggrieved only against that

part of the order by which the High Court directed the deposit

of fine amount.

2. The appellant was an accused in R.C. Case No.68(A) of

1996­State (through CBI) vs. Lalu Prasad @ Lalu Prasad Yadav

and others. Accused were tried for the offence punishable

under Sections 120­B/ read with 409, 420, 467, 468, 471 and

2

477­A of the IPC read with Section 13(1)(c) & (d) and 13(2) of

Prevention of Corruption Act, 1988. The trial court by order

dated 24.01.2018 convicted the accused and awarded sentence.

The appellant, who was one of the accused, was awarded the

following sentence by the trial court:

“44. Satyendra Kumar Mehra convicted for

offence punishable U/s 120­B/420, 120­B/467,

120­B/468 and 120­B/471 IPC:

U/s 120­B/420 IPC R.I. of Five(05) Years with

fine of Rs.25,000/­ and in default of payment

of fine S.I. for Three (03) Months.

U/s 120­B/467 IPC R.I. of Five (05) Years

with fine of Rs.25,000/­ and in default of

payment of fine S.I. for Three (03) Months.

U/s 120­B/468 IPC R.I. of Five(05) Years with

fine of Rs.25,000/­ and in default of payment

of fine S.I. for Three (03) Months.

U/s 120­B/471 IPC R.I. of Five(05) Years with

fine of Rs.25,000/­ and in default of payment

of fine S.I. for Three (03) Months.

All the sentences shall run concurrently and

the period undergone shall be set off.”

3. Aggrieved against the above conviction and sentence order

the appellant filed Criminal Appeal No.176 of 2018 before the

High Court. The appellant also filed application praying

suspension of sentence. After hearing, the High Court allowed

the application granting the privilege of suspension of

sentence to the appellant and directing the appellant be

released on bail on furnishing bail bond of Rs.50,000/­ with

two sureties. However, while allowing the application the High

3

Court passed the following direction:

“Appellant should also deposit the fine amount

awarded before court below.”

4. The appellant aggrieved by the aforesaid direction of the

High Court to deposit the fine amount awarded by the court

below has come up in this appeal.

5. We have heard Shri Sunil Kumar, learned senior counsel

appearing for the appellant and Shri Aman Lekhi, learned

Additional Solicitor General for India appearing for the

respondent­State.

6. Learned counsel for the appellant relying on Section 357

sub­Section (2) of Criminal Procedure Code submits that since

the appellant has already filed an appeal before the High

Court, the amount of fine imposed by the trial court

automatically stands stayed till the decision of the appeal.

He submits that in the present case sentence of fine was also

imposed by the trial court which is the subject of the appeal,

hence Section 357(2) Cr.P.C. is attracted in the present case

and the High Court should not have directed the appellant to

deposit the fine amount awarded by the trial court which

direction is in the teeth of provisions of Section 357(2)

Cr.P.C. Learned counsel for the appellant in support of his

submission placed reliance on the judgment of this Court

4

reported in Dilip S. Dahanukar vs. Kotak Mahindra Co.Ltd.

And another, (2007) 6 SCC 528.

7. Shri Aman Lekhi, learned Additional Solicitor General for

India refuting the submission of learned counsel for the

appellant contends that the High Court did not commit error in

directing the appellant to deposit the fine amount awarded by

the court below. He submits that provisions of Section 357(2)

Cr.P.C. is not attracted in the present case. He submits that

what is contemplated by sub­Section (2) of Section 357 Cr.P.C.

is “payment of the compensation as envisaged in Section 357(1)

Cr.P.C.”. He submits that stay of payment of compensation is

entirely different from the stay of fine which is a part of

sentence imposed on accused.

8. He submits that this Court in Stanny Felix Pinto vs.

Jangid Builders Pvt. Ltd. and another, (2001) 2 SCC 416, has

also upheld a similar order passed by the High Court where the

High Court directed payment of rupees four lakhs as a

condition to suspend the sentence which was part of the fine

imposed as part of sentence.

9. Learned counsel for the appellant submits that judgment

of this Court in Stanny Felix Pinto(supra) cannot be pressed

into service with regard to interpretation of Section 357(2)

Cr.P.C. which section is neither referred to nor adverted to

5

by this Court in above case.

10. We have considered the submissions of the learned

counsel for the parties and perused the records. From the

facts brought on record, it is clear that the sentence awarded

to the appellant was a sentence of R.I. of five years with

payment of fine of Rs.25,000/­ and in default S.I. of three

months. The said sentence was recorded in four cases and all

sentences were to run concurrently. Thus, the fine was part of

the sentence. The question which is to be answered in the

present case is as to whether by virtue of Section 357(2)

Cr.P.C., the said fine which was part of sentence

automatically was stayed till the decision of the appeal and

would not have been directed by the High Court to be deposited

by the appellant.

11. For answering the question we need to reflect upon the

statutory scheme as delineated by Section 357(2) Cr.P.C.

Section 357(2) Cr.P.C. is part of Chapter XXVII­”THE JUDGMENT”

of the Criminal Procedure Code, 1973. Section 353 deals

about the judgment, its pronouncement, signatures, delivery

and other aspects. Section 354 deals with language and

contents of judgment. Section 355 refers to Metropolitan

Magistrate’s judgment. Section 356 deals with order for

notifying address of previously convicted offender and then

6

Section 357 bears heading “Order to pay compensation”. Order

to pay compensation, thus, is a part of judgment where Court

directs payment for compensation.

12. Section 357(1) Cr.P.C. contemplates that when a Court

imposes a sentence of fine or a sentence of which fine forms a

part, the Court may, while passing judgment, order the whole

or any part of the fine recovered to be applied. Section 357

is to the following effect:­

“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 such an offence, in paying

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;

7

(d) when any person is convicted of any

offence which includes theft, criminal

misappropriation, criminal breach of trust,

or cheating, or of having dishonestly

received or retained, or of having

voluntarily assisted in disposing of, stolen

property knowing or having reason to believe

the same to be stolen, in compensating any

bona fide purchaser of such property for the

loss of the same if such property is restored

to the possession of the person entitled

thereto.”

(2) If the fine is imposed in a case which is

subject to appeal, no such payment shall be

made before the period allowed for presenting

the appeal has elapsed, or, if an appeal be

presented, before the decision of the appeal.

(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 by reason of the act for which the

accused person has been so sentenced.

(4) An order under this section may also be

made by an Appellate Court or by the High

Court or Court of Session when exercising its

powers of revision.

(5) At the time of awarding compensation in

any subsequent civil suit relating to the

same matter, the Court shall take into

account any sum paid or recovered as

compensation under this section.”

13. All the circumstances in sub­section (1) of Section 357

8

refer to direction to pay compensation out of the fine

imposed. Thus, all the circumstances are circumstances where

fine imposed and recovered is to be applied in the above

circumstances.

14. The fine is thus contemplated to be utilised for

compensating different circumstances as enumerated in Section

357(1) Cr.P.C. Sub­Section (2) of Section 357 Cr.P.C. has been

engrafted in reference to what was stated in sub­Section (1)

of Section 357 Cr.P.C. Crucial words used in sub­Section (2)

of Section 357 Cr.P.C. are “no such payment shall be made

before the period allowed for presenting the appeal has

elapsed, or if an appeal be presented, before the decision of

the appeal”. Thus, what is prohibited under Section 357(2)

Cr.P.C. is that payment of compensation utilising the fine be

not paid till the period allowed for presenting the appeal has

elapsed, or if an appeal is filed then before the decision of

the appeal. It does not involve any concept of stay of

sentence.

15. Chapter XXIX deals with the appeals. In the said Chapter

Section 389 deals with the subject “suspension of sentence

pending the appeal; release of appellant on bail”. Section

389(1) Cr.P.C. empowers the Appellate Court to order that the

execution of the sentence or order appealed against be

9

suspended and, also, if he is in confinement, that he be

released on bail. Thus, the power of suspension of sentence

emanates from Section 389 Cr.P.C. where Appellate Court is

empowered to pass such an order. Sections 357 and 389 Cr.P.C.

operate in two different fields. Section 357 Cr.P.C. contains

an embargo that on passing a judgment of sentence of fine, the

fine be not utilised for payment of compensation till

contingency as mentioned therein does not occur. The sentence

awarded by the Court including sentence of fine is in no way

affected by embargo contained in Section 357(2) Cr.P.C. The

operation of Section 357(2) Cr.P.C. is restricted to payment

of compensation as contemplated by Section 357(1) and (3)

Cr.P.C. The heading of the Section 357 Cr.P.C. i.e. “Order to

pay compensation” as well as contents of the Section lead to

only one conclusion that the entire provision has been

engrafted regarding payment of compensation out of the fine

imposed or when Court imposes sentence the fine is not part of

which, the Court may by way of compensation direct payment of

such amount to a person who has suffered the injury. We, thus,

are of the view that Section 357 Cr.P.C. has nothing to do

with suspension of sentence awarded by the trial court and the

sentence of fine imposed on the accused is in no way affected

by Section 357(2) Cr.P.C. The present is not a case where

10

trial court has directed payment of any compensation to anyone

out of fine imposed. There is no direction for payment of

compensation in the order of the trial court nor present case

is covered by the circumstances mentioned in sub­clauses (a)

to (d) of Section 357(1) Cr.P.C. Present is also not a case of

Section 357(3) Cr.P.C. Hence, there is no question of

applicability of Section 357(2) Cr.P.C. The heading of Section

357 Cr. P.C. throws considerable light in finding the object

and purpose of the Section. Section 357 Cr.P.C. is only

attracted when Court orders for payment of compensation.

Section 357 is not attracted in any other case. It is well

settled that heading of the Section plays a role when there is

any doubt in interpretation of the Section. This Court in

Bhinka and others vs. Charan Singh, AIR 1959 SC 960, while

examining the role of a heading of section while interpreting

a section noticed the following principle;

“15……Section 180 provides for the

eviction of a person who but for the eviction

would become a hereditary tenant by efflux of

the prescribed time. If there is any

ambiguity — we find none — it is dispelled by

the heading given to the section and also the

description of the nature of the suit given

in the Schedule. The heading reads thus:

“Ejectment of person occupying land

without title.”

“Maxwell On Interpretation of Statutes, 10th

11

Edn., gives the scope of the user of such a

heading in the interpretation of a section

thus, at p. 50:

“The headings prefixed to sections or sets

of sections in some modern statutes are

regarded as preambles to those sections.

They cannot control the plain words of the

statute but they may explain ambiguous

words.”

If there is any doubt in the interpretation

of the words in the section, the heading

certainly helps us to resolve that

doubt…….”

16. The similar proposition was again reiterated by

three­Judge Bench of this Court in N.C. Dhoundial vs. Union

of India and others, (2004) 2 SCC 579, where in paragraph 15

following has been held:

“15……The language employed in the

marginal heading is another indicator that

it is a jurisdictional limitation. It is a

settled rule of interpretation that the

section heading or marginal note can be

relied upon to clear any doubt or ambiguity

in the interpretation of the provision and

to discern the legislative intent (vide

Uttam Das Chela Sunder Das v. Shiromani

Gurdwara Parbandhak Committee, (1996) 5 SCC

71 and Bhinka v. Charan Singh, AIR 1959 SC

960).”

17. Now we come to the judgment which has been relied on by

the learned counsel for the appellant, i.e., Dilip S.

Dahanukar (supra). In the above case this Court had occasion

to interpret Section 357 Cr.P.C. The appellant therein was

accused No.2, who was directed to pay compensation to the

12

complainant of Rs.15 lakh apart from the simple imprisonment.

The facts have been noted in paragraph 3 of the judgment which

is to the following effect:

“3. Accused 1, M/s Goodvalue Marketing

Co. Ltd., a company registered and

incorporated under the Companies Act, 1956

and Accused 2, the appellant herein were

convicted for commission of an offence

involving Section 138 of the Act by a

judgment of conviction and sentence dated

23­2­2006 holding:

“Accused 1 company, M/s Goodvalue

Marketing Co. Ltd. stands convicted for

the offence punishable under Section 138

read with Section 141 of the Negotiable

Instruments Act.

Accused 1 company is sentenced to pay a

fine of Rs 25,000 (Rupees twenty­five

thousand only). In default of payment of

fine, Accused 2 Mr Dilip Dahanukar, the

Chairman of Accused 1 and representative

at the trial, shall suffer SI for 1

month.

Accused 2 Mr Dilip S. Dahanukar, stands

convicted for the offence punishable

under Section 138 read with Section 141

of the Negotiable Instruments Act, 1881.

Accused 2 is sentenced to suffer SI for 1

month.

Accused 2 is also directed to pay compensation

to the complainant, quantified (sic) at Rs

15,00,000 (Rupees fifteen lakhs only), under

Section 357(3) CrPC. Accused 2 is entitled to

pay the amount of compensation in two equal

monthly instalments of Rs 7,50,000 each. The

first instalment of Rs 7,50,000 shall be paid

on or before 23­3­2006 and the second

13

instalment of Rs 7,50,000 shall be paid on or

before 24­4­2006; in default of payment of the

amount of compensation Accused 2 shall suffer

further SI for 2 months.”

18. An appeal was preferred against the conviction order. The

Appellate Court while admitting the appeal directed the

accused to deposit a sum of Rs.5 lakh each within four weeks

from the said date. Writ petition was filed questioning the

legality of the said order of the Appellate Court which was

dismissed and thereafter the matter was taken to this Court. A

submission was raised before this Court that having regard to

the provisions of Section 357(2) of the Code, the impugned

judgment is wholly unsustainable inasmuch as in terms thereof

the amount of fine imposed would automatically be suspended.

19. In the above case this Court considered sub­Sections (1),

(2) and (3) of Section 357 of the Code and observed that

sub­Section (2) shall be applicable both in regard to

compensation as well as direction under sub­Section (3). In

paragraphs 43, 44 and 45 following has been laid down:

“43. It does not appeal to us that

although a compensation payable out of the

quantum of fine would remain stayed under

sub­section (2) of Section 357 of the Code, if

a compensation is directed to be paid under

sub­section (3) thereof, the same would not

attract the said provision. (See P. Suresh

Kumar v. R. Shankar, [(2007) 4 SCC 752].)

14

44. Magistrates cannot award compensation

in addition to fine. When a fine is imposed,

however, the private party has no right to

insist that compensation may be awarded to

him out of the amount of fine. The power to

award compensation under Section 357(3) is

not an ancillary power. It is an additional

power. (See Balraj v. State of U.P., [(1994)

4 SCC 29].)

45. Clause (b) of sub­section (1) of

Section 357 and sub­section (1) of Section

357 and sub­section (3) of Section 357 seek

to achieve the same purpose. What is

necessary is to find out the intention of

the lawmaker and the object sought to be

achieved. Sub­section (2) of Section 357

uses the word “fine”. It does not say that

what would be stayed i.e. application of

fine. Sub­section (2) of Section 357, in our

opinion, does not contemplate any other

interpretation. Even assuming that Mr Lalit

was correct in his submission, still then

sub­section (3) would be squarely

attracted.”

20. Referring to Section 389 Cr. P.C., this Court noticed

that suspension of a sentence and enlarging an appellant on

bail, who is convicted and realisation of fine has been dealt

with by Parliament under different provisions of the Code. In

paragraph 51 following has been laid down:

“51. Section 389 does not deal with

exactly a similar situation. Section 389 of

the Code is to be read with Section 387

thereof. Suspension of a sentence and

enlarging an appellant on bail, who is

convicted and realisation of fine has been

dealt with by Parliament under different

provisions of the Code. The power of the

court, thus, to suspend a sentence in regard

15

to realisation of compensation may be

different from that of a direction in

realisation of fine.”

21. This Court in the aforesaid case has noted the

distinction between fine of Rs.25,000/­ which was imposed on

the Company and compensation of Rs.15 lakh which was directed

to be paid by the Chairman of the Company. In paragraph 71 the

aforesaid was mentioned to the following effect:

“71. We are prima facie of the opinion

(without going into the merit of the appeal)

that the direction of the learned trial Judge

appears to be somewhat unreasonable. The

appellant herein has been sentenced to

imprisonment. Only fine has been imposed on

the Company. Thus, for all intent and

purpose, the learned trial Judge has invoked

both sub­sections (1) and (3) of Section 357

of the Code. The liability of the appellant

herein was a vicarious one in terms of

Section 141 of the Negotiable Instruments

Act. The question may also have to be

considered from the angle that the learned

trial Judge thought it fit to impose a fine

of Rs 25,000 only upon the Company. If that

be so, a question would arise as to whether

an amount of compensation for a sum of Rs 15

lakhs should have been directed to be paid by

the Chairman of the Company. We feel that it

is not.”

22. This Court ultimately directed the appellant to deposit

rupees one lakh towards the compensation and recorded its

conclusion in paragraph 72 which is to the following effect:

“72. We, therefore, are of the opinion:

16

(i) in a case of this nature, sub­section (2)

of Section 357 of the Code of Criminal

Procedure would be attracted even when the

appellant was directed to pay compensation;

(ii) the appellate court, however, while

suspending the sentence, was entitled to put

the appellant on terms. However, no such term

could be put as a condition precedent for

entertaining the appeal which is a

constitutional and statutory right;

(iii) the amount of compensation must be a

reasonable sum;

(iv) the court, while fixing such amount,

must have regard to all relevant factors

including the one referred to in sub­section

(5) of Section 357 of the Code of Criminal

Procedure;

(v) no unreasonable amount of compensation can

be directed to be paid.”

23. This Court, in the above case, was dealing with the

question of payment of compensation which was awarded by the

Court under sub­Section (3) of Section 357 Cr.P.C. The Court

was not dealing with fine which was part of the sentence. The

Court, thus, had no occasion to consider the issue which has

arisen in the present case. We, in the present case, are not

concerned with payment of any compensation or applicability of

Section 357(2) Cr.P.C. with regard to payment of any such

compensation.

24. We also need to notice the judgment of this Court in

17

Stanny Felix Pinto (supra). In the above case along with

sentence of imprisonment, fine was also imposed under Section

138 of the Negotiable Instruments Act. The High Court while

entertaining the revision granted suspension of the sentence

by imposing a condition that part of the fine shall be

remitted in court within a specified time which direction was

challenged in this Court. This Court upheld the said

direction. Following was held in paragraph 2:

“2. When a person was convicted under

Section 138 of the Negotiable Instruments Act

and sentenced to imprisonment and fine he

moved the superior court for suspension of

the sentence. The High Court while

entertaining his revision granted suspension

of the sentence by imposing a condition that

part of the fine shall be remitted in court

within a specified time. It is against the

said direction that this petition has been

filed. In our view the High Court has done it

correctly and in the interest of justice. We

feel that while suspending the sentence for

the offence under Section 138 of the

Negotiable Instruments Act it is advisable

that the court imposes a condition that the

fine part is remitted within a certain

period. If the fine amount is heavy, the

court can direct at least a portion thereof

to be remitted as the convicted person wants

the sentence to be suspended during the

pendency of the appeal. In this case the

grievance of the appellant is that he is

required by the High Court to remit a huge

amount of rupees four lakhs as a condition to

suspend the sentence. When considering the

total amount of fine imposed by the trial

court (twenty lakhs of rupees) there is

nothing unjust or unconscionable in imposing

such a condition. Hence, there is no need to

18

interfere with the impugned order. As such no

notice need be issued to the respondent.

Appeal is accordingly dismissed.”

25. It is true that this Court while deciding the said case

did not consider Section 357(2) Cr.P.C. Learned counsel for

the appellant is right in his submission that the above

judgment cannot be held to be laying down any ratio on

applicability of Section 357(2) Cr.P.C.

26. We may also refer to a judgment of Karnataka High Court

in Irrigation Engineering Company (India) Private Limited and

Anr. vs. The Small­Scale Industrial Development Bank of India

(SIDBI), 2003 (6) KarLJ 387, where while interpreting Section

357(2) Cr.P.C., Karnataka High Court had observed that word

“payment” found in Section 357(2) Cr.P.C. does not refer to

the ‘deposit’ of compensation or fine amount by the accused.

In the case before the High Court appellant was convicted with

sentence of fine. In appeal the High Court directed suspension

of sentence on the condition that the appellant shall deposit

20% of the total fine which was challenged before the High

Court on the ground that in view of Section 357(2) Cr.P.C.,

Appellate Court was not right in asking them to deposit 20% of

the total fine. In paragraphs 8,9 and 10 following was stated:

“8. What Section 357(2) of the Cr. P.C. says

is as under:

19

“If the fine is imposed in a case

which is subject to appeal, no such

payment shall be made before the

period allowed for presenting the

appeal has elapsed, or, if an appeal

be presented, before the decision of

the appeal”.

Nowhere it says that the Court of Appeal,

while suspending sentence imposed on an

accused, cannot impose a condition of

depositing a part of fine amount. It is true

that as per the decision relied on for the

petitioners, stay engrafted under the said

provision of law equally applies to the

compensation granted under Sub­section (3) of

Section 357 of the Code, but it cannot be

taken to hold or read that the Appellate

Court cannot pass a conditional order for

suspending a sentence.

9. According to me, the word “payment” found

in Section 357(2) of the Cr. P.C., does not

refer to the ‘deposit’ of compensation or

fine amount by an accused in pursuance of an

order passed by Appellate Court while

suspending sentence imposed on an accused

since, to my mind, the word “payment” refers

to payment to be made to the person, who is

ordered to be paid compensation and not the

fine amount, inclusive of compensation amount

to be ‘deposited’ by accused. The stay

engrafted into the said provision of law is

with reference to the ‘payment’ of such

amount earlier to the expiry of the appeal

period or, where appeal has been preferred,

during the pendency of such appeal. So,

Section 357 need not and cannot be read with

Section 389 of the Cr. P.C. In fact, neither

the petitioners/appellants applied for, nor

the Appellate Court ordered suspension of the

sentence relating to compensation of Rs. 16

lakhs only. On the other hand, when the

suspension of impugned sentence passed

against them is seen with the power given to

the Appellate Court under Section 389 of the

20

Cr. P.C., besides the ambit or scope of

Section 357 of the Cr. P.C., there will not

be any difficulty in holding that there is no

error of record or infirmity or irregularity

or illegality in the impugned order passed by

the Court of Sessions suspending the sentence

on condition of depositing 20% of the total

fine amount imposed on them (petitioners).

10. In this view of the matter, neither

Section 357(2) of the Cr. P.C. nor the

decision relied on for the petitioners is of

any help to the petitioners.“

27. Learned Counsel for the appellant has relied on three

judgments of High Courts, one of Punjab and Haryana High Court

and two judgments of Patna High Court in support of his

submissions. We need to refer to above judgments relied by the

learned counsel for the appellant. The first judgment is

judgment of Punjab and Haryana High Court reported in 2006

(3) PLR 194, Kedar Nath versus State of Haryana. In the above

case, the petitioner was convicted for offence under Section

138 of the Negotiable Instruments Act, 1881 for dishonour of

several cheques amounting to Rs.1,50,000/­. The petitioner was

sentenced to undergo rigorous imprisonment for period of one

year and to pay a fine of Rs.3,00,000/­. It was also ordered

that out of fine of Rs.3,00,000/­, a sum of Rs.2,50,000/­be

given to the complainant as compensation. An appeal was filed

where Appellate Court suspended the sentence on the condition

21

that petitioner will deposit an amount of Rs.1,50,000/­ before

the trial court. The aforesaid condition was challenged by the

petitioner in the High Court. It was submitted that in

accordance with Section 357 sub­section (2) Cr.P.C. petitioner

was not liable to pay any amount of fine. The High Court

accepted the submission relying on Section 357 sub­section (2)

Cr.P.C.. In paragraph 8 of the judgment, following was held:

“8. Against the judgment of conviction and order to

sentence, an appeal was preferred by the petitioner,

which was admitted for hearing. While suspending the

sentence, the Appellate Court imposed a condition

for depositing an amount of Rs.1,50,000/­ out of the

amount of fine of Rs.3 lacs imposed by the trial

Court. In my opinion, by imposing the said

condition, the petitioner was compelled to pay the

amount of fine, which according to sub­section (2)

of Section 357 Cr.P.C., the accused is not liable to

pay till the final adjudication of the appeal.

Merely because out of the amount of fine of Rs.3

lacs, Rs.2,50,000/­ was ordered to be paid to the

complainant as compensation, in my opinion, does not

change the nature of fine. The judgment of the trial

court is very clear that a fine of Rs.3 lacs was

imposed along with the sentence of one year. The

facts of this case are squarely covered by the

decision of the this Court in Sabita Behl’s

case(supra). Thus, in my opinion, the Appellate

Court was not justified while imposing the impugned

condition directing the petitioner to deposit an

amount of Rs.1,50,000/­ before the trial Court at

the time of furnishing the bail bonds in view of the

order of suspension of sentence passed by the

Appellate Court.”

28. The above case is clearly distinguishable from the

present case. In the above case, there was direction within

22

the meaning of Section 357 sub­section (1) (b) Cr.P.C. for

payment of compensation. Hence Section 357 sub­section (2)

Cr.P.C. was relied by the Court. Present is not a case of

payment of any compensation out of fine imposed on appellant.

Thus, the above case in no manner helps the appellant.

29. Now we come to the second case relied by the appellant

i.e. Division Bench Judgment of Patna High court in Bharat

Mandal son of Sitaram Mandal & Ors. Vs. The State of Bihar,

2012 (2) PLJR 855. In the above case accused were convicted

under Section 307/149 IPC and Section 27 of the Arms Act.

They were sentenced for life imprisonment and further

directed to pay a fine of Rs.20,000/­ each. The appeal was

filed in which the Appellate Court declined to stay the

payment of fine. The appellant pressed for stay of payment of

fine which was considered by the High Court. High Court

relied on Section 357 sub­section (2) Cr.P.C. and accepted

the submission of the appellant that the fine was not to be

paid. Following was held in paragraph 7:

“7. The argument of Mr. Yogesh Chandra Verma,

learned counsel for the appellant is based squarely

upon the literal interpretation from the Section.

In our view, the submission as made by Sri Verma

has to be accepted. On the plain reading of

sub­section (2) of Section 357 of the Code of

Criminal Procedure we find that there is absolutely

no ambiguity in the provision as engrafted by the

23

legislature, it clearly stipulates firstly, that no

such payment shall be made before the period

allowed for presenting the appeal has elapsed.

Thus, this stops any court from enforcing payment,

for the period in which appeal could be filed. It

then secondly provides that the stay of action of

realization or payment would continue if an appeal

is presented till the decision of the appeal.

“Decision of the Appeal” would only mean the final

judgment in the appeal and not any order at any

interlocutory stage because that would not be the

decision of the appeal. Thus, on the plain reading

of Section 357(2) of the Code of Criminal Procedure

a fine imposed, would automatically get stayed

firstly for the period which is available to file

appeal and once the appeal is filed then till the

decision of the appeal. That is the mandate of the

legislature itself, clear and unambiguous. The

situation would be different, if instead of

awarding fine, in terms of Section 357(3) of the

Code of Criminal Procedure compensation only is

awarded. In such a case, the appellate court has

judicial discretion to stay or, not to stay the

compensation so awarded depending upon the facts of

the case under consideration.”

30. From the facts noticed by the High Court it is not clear

as to whether the amount of fine Rs.20,000/­ was directed to

be paid to the victim. No such facts have been noticed in the

judgment. If there was no direction to pay any compensation

out of the fine imposed the facts of the said case are

similar to the case in hand. We have taken the view that if

there is no direction to pay any compensation out of fine

imposed, Section 357(2) Cr.P.C. is not attracted. We are of

the view that the High Court’s observation that in view of

Section 357 sub­section (2) of Cr.P.C. the realisation of

24

fine would automatically get stayed does not take into

consideration the distinction in a case where fine is part of

sentence and there is direction to pay compensation and in a

case where there is no direction to pay any compensation.

31. The third case relied by the learned Counsel for the

appellant is again a Division Bench Judgment of Patna High

Court in Criminal Appeal (DB) No.529 of 2012, Naresh Yadav@

Naresh Mahto & Ors. Vs. The State of Bihar, decided on

26.06.2012. The Judgment of Patna High Court has been placed

on record along with the short submissions of learned counsel

for the appellant. A perusal of the judgment indicate that

Patna High Court has not noticed the facts of the case and

the nature of Order passed by the trial Court regarding

imposition of fine. The applicant prayed for modification of

Order of the High Court by which the direction was issued for

depositing the fine. Section 357 sub­section (2) Cr.P.C. was

relied and the Division Bench relying on earlier judgment of

Patna High Court in Bharat Mandal & Ors. (Supra) modified the

last paragraph of the Order dated 04.06.2012 providing that

the fine imposed shall remain stayed till the decision of the

case. The above judgment relies only on Bharat Mandal & Ors.

which has already been noted above by us hence this judgment

also does not help the appellant.

25

32. The object and purpose of Section 357 Cr.P.C. was

considered by this Court in Hari Singh vs. Sukhbir Singh and

others, (1988) 4 SCC 551. This Court held that the power

given to the Court to direct for payment of compensation is

intended to do something for the victim. The provision was

held to be a step forward in our criminal justice system.

Following were the observations made in paragraph 10:

“10…It empowers the court to award

compensation to victims while passing

judgment of conviction. In addition to

conviction, the court may order the accused

to pay some amount by way of compensation to

victim who has suffered by the action of

accused. 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. We, therefore, recommend to

all courts to exercise this power liberally

so as to meet the ends of justice in a better

way.”

33. What is the purpose and object of sub­Section (2) of

section 357 Cr.P.C.? Section 357(1) Cr.P.C. contemplated

utilisation of fine imposed in certain circumstances as

compensation to be paid to victim. Sub­section (2) engrafted

26

an embargo that such payment shall not be made till the period

allowed for appeal has elapsed or if the appeal is filed, till

the same is decided. Legislature was conscious that

compensation paid if utilised, there may not be appropriate

measures to recover the said amount utilised from victim to

whom the compensation is paid hence embargo in payment has

been engrafted in sub­section (2). Thus at best sub­section

(2) of Section 357 Cr.P.C. is a provision which differs or

withholds the utilisation of the amount of compensation

awarded till the limitation of appeal elapses or if filed till

it is decided. The provision in no manner stays the sentence

of fine during the pendency of the appeal. The purpose for

which sub­section (2) of Section 357 Cr.P.C. has been enacted

is different as noted above and it never contemplates as stay

of sentence of fine imposed on accused.

34. We, however, make it clear that Appellate Court while

exercising power under Section 389 Cr.P.C. can suspend the

sentence of imprisonment as well as of fine without any

condition or with conditions. There are no fetters on the

power of the Appellate Court while exercising jurisdiction

under Section 389 Cr.P.C.. The Appellate Court could have

suspended the sentence and fine both or could have directed

for deposit of fine or part of fine.

27

35. Learned counsel for the appellant has also relied on the

judgment of this Court in K.C. Sareen vs. C.B.I. Chandigarh,

(2001) 6 SCC 584, where this Court has made the following

observation:

“No doubt when the appellate court admits

the appeal filed in challenge of the

conviction and sentence for the offence under

the PC Act, the superior court should

normally suspend the sentence of imprisonment

until disposal of the appeal, because refusal

thereof would render the very appeal otiose

unless such appeal could be heard soon after

the filing of the appeal.”

36. The above observation was made by this Court in the

context of suspension of sentence of imprisonment. The present

is not a case where question of suspension of sentence of

imprisonment is involved rather Appellate Court has already

suspended the sentence of imprisonment. The above case also

thus does not help the appellant in the facts of the present

case.

37. In view of the foregoing discussion, we are of the view

that Section 357(2) Cr.P.C. was not attracted in the present

case since there was no direction of payment of any

compensation out of the fine imposed by the trial court as

part of sentence. Section 357 Cr.P.C.(2) comes into play only

where any order of payment of compensation utilising the fine

imposed as sentence under Section 357(1) Cr.P.C. or

28

compensation as directed under Section 357(3) Cr.P.C. is made.

Present being neither a case of Section 357(1) Cr.P.C. nor

Section 357(3), sub­section(2) of Section 357 Cr.P.C. is

clearly not applicable and the submissions raised by the

learned counsel for the appellant are without any substance.

We, thus, do not find any infirmity in the impugned order of

the High Court where the High Court has directed the appellant

to deposit the fine awarded by the trial court. In the result,

the appeal is dismissed.

………………………….J.

( A.K. SIKRI )

………………………….J.

( ASHOK BHUSHAN )

NEW DELHI,

MARCH 23, 2018.