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RAJASTHAN STATE JUDICIAL ACADEMY, RAJASTHAN STATE JUDICIAL ACADEMY, RAJASTHAN STATE JUDICIAL ACADEMY, RAJASTHAN STATE JUDICIAL ACADEMY,
JODHPUR JODHPUR JODHPUR JODHPUR
WORKSHOP/ SEMINAR AT DISTRICT HEADQUARTER - BHILWARA
ACADEMIC YEAR-2014-15
FIRST SEMINAR (OCTOBER-DECEMBER-2014)
TOPIC - SENTENCING, LAW OF PROBATION AND VICTIMOLOGY.

Answers submitted by :
ANANT BHANDARI, ADJ-1 BHILWARA
1. SET OFF UNDER SECTION 428 Cr. P. C.: WHERE
CONSECUTIVE SENTENCES ARE AWARDED OR THE
ACCUSED IS ALREADY SERVING SOME OTHER SENTENCE
OR WHERE THE ACCUSED IS DETAINED IN MORE THAN
ONE CASE DURING THE TRAIL.
Section 428 of Code of Criminal Procedure provides as under:
428. Period of detention undergone by the accused to be set off
against the sentence of imprisonment - Where an accused person has, on
conviction, been sentenced to imprisonment for a term not being imprisonment
in default of payment of fine the period of detention, if any, undergone by him
during the investigation, inquiry or trial of the same case and before the date of
such conviction shall be set off against the term of imprisonment imposed on him
on such conviction, and the liability of such person to undergo imprisonment on
such conviction shall be restricted to the remainder, if any, of the term of
imprisonment imposed on him.
Two requisites postulated in Section 428 are : (i) During the stage of
investigation, inquiry or trail of a particular case the prisioner should have been
in jail for a certain period, and (ii) He should have been sentenced to a term of
imprisonment in that case.
Section 428 of the Code was brought on the statute book for the first time in 1973.
It was incorporated in the light of the proposal put forward by the Joint Select
Committee appointed for that purpose. The Committee had noted, with distress,
that in many cases accused persons were kept in prison for very long period as
under-trial prisoners and in some cases the sentence of imprisonment, ultimately
awarded, was a fraction of the period spent in jail as under-trial prisoners.
Supreme Court in State Of Maharashtra & Anr vs Najakat Alia Mubarak
Ali {A.I.R. 2001 SC 2255} has made detailed discussion on Sec. 428 Cr P
C which is as under:
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By introducing the provision of set off, the legislature intended to mitigate, to a great
extent, the hardship caused to the accused persons by reason of their being unable to
come out on bail during the trial period. While interpreting Section 428 of the Code, the
underlying object of the Section cannot be lost sight of. Any set off claimed under Section
428 has necessarily to be within the terms of the Section and not beyond it. No accused
person can claim that irrespective of the terms of Section 428 of the Code, he is entitled
to the benefit of set-off in each and every case. A bare reading of the Section indicates
that an accused person who has been convicted and sentenced to imprisonment for a
term is entitled to claim set off of the period of detention undergone by him during the
investigation, inquiry or trial of the same case against the term of imprisonment
imposed on him on such conviction. The section has imposed some restrictions for a
convicted person claiming the benefit of set off which are as under:-
(i) The imprisonment should be for a term.
(ii) The imprisonment should not be one awarded in default of payment of fine.
(iii) The period of detention undergone by the accused person during the investigation,
inquiry or trial should relate to the same case in which he is convicted and sentenced to
undergo imprisonment for a term.
The dictionary meaning of the word "same" is identical; referring to a person or thing
just mentioned; the same thing as previously mentioned. It generally refers to the last
preceding antecedents; one and the same; not distinct. Generally speaking the "same
case" would thus mean "same transaction" for which the accused has been tried. Two
different criminal cases, therefore, cannot be treated to be the "the same case" in
relation to an accused for the purposes of determining the applicability of Section 428 of
the Code.
The accused tried for various offences in one trial can be held to be entitled to the benefit
of Section 428 of the Code being tried for the "same case". The words "same case"
appearing in the section are ejusdem generis to the preceding words "investigation,
enquiry or trial". If the period of detention relating to investigation, enquiry or trial is
in a different case that would not ipso facto entitle the accused to claim the benefit of
Section 428 but that may permit him to persuade the court to pass an appropriate
orders in terms of Section 427, keeping in view the period of his under-trial detention in
other cases as well. It is the need of the time that the court convicting the accused should
develop a healthy practice of specifying in the order the total period of pre-conviction
detentions that he has undergone in that case or in some other case for the purposes of
awarding the sentence upon conviction.
In Shabbu & Anr. v. State of U.P. & Anr. [1982 Crl.L.J. 1757] a Full Bench of the
Allahabad High Court held: "It is thus obvious that Section 428 Cr.P.C., is intended to
relieve the anguish of undertrials for their prolonged detention in jail during the
investigation, inquiry or trial of a case. Its object is to confer a special benefit upon a
convict whereby his liability to undergo the imprisonment, ultimately imposed upon
him in a case, stands reduced by the period during which he has remained in jail as an
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under-trial prisoner in the same case. It simply aims at setting off or crediting the
period of pre- conviction detention of the accused of a case towards the sentence
ultimately awarded to him after his conviction in that very case."
After referring to the judgments of this Court in Mr.Boucher Pierre Andre v.
Superintendent Central Jail Tihar, [AIR 1975 SC 164], Suraj Bhan v. Om Prakash [air
1976 sc 648], Govt. of A.P. v. A.V.Rao [AIR 1977 SC 1096], the earlier judgment of that
Court in Nasim v. State of U.P. [1978 All LJ 1284], the judgment of the Delhi High Court
in K.C. Das v. State[1979 Crl.LJ 362], of Bombay High Court in Jaswant Lal Harjivan
Das Dholkia v. State [1979 Cri.LJ 971], Mohan Lal v. State of U.P. [1979 Luck LJ 272],
the Full Bench further held that under Section 428 the period of detention as an under-
trial of an accused in a particular case can be set off only towards the sentence
ultimately awarded to him in that very case. The Court further held:
"Whether or not the detention of a person in one case should also be treated to be his
detention for the purposes of any other case, wherein he is wanted, is a question to be
decided upon the facts and circumstances of each case. No set formula can be laid down
in that behalf."
Dealing with the scope and object of Section 428 this Court in Raghbir Singh v. State of
Haryana[1984 (4) SCC 348] held:
"There was no provision corresponding to Section 428 of the Code in the Code of
Criminal Procedure, 1898 which was repealed and replaced by the present Code. It was
introduced with the object of remedying the unsatisfactory state of affairs that was
prevailing when the former Code was in force. It was then found that many persons
were being detained in prison at the pre-conviction stage for unduly long periods, many
times for periods longer than the actual sentence of imprisonment that could be imposed
on them on conviction. In order to remedy the above situation, Section 428 of the Code
was enacted. It provides for the setting off of the period of detention as an under-trial
prisoner against the sentence of imprisonment imposed on him. Hence in order to
secure the benefit of Section 428 of the Code, the prisoner should show that he had been
detained in prison for the purpose of investigation, inquiry or trial of the case in which
he is later on convicted and sentenced. It follows that if a person is undergoing the
sentence of imprisonment imposed by a court of law on being convicted of an offence in
one case during the period of investigation, inquiry or trial of some other case, he
cannot claim that the period occupied by such investigation, inquiry or trial should be
set off against the sentence of imprisonment to be imposed in the latter case even though
he was under detention during such period. In such a case the period of detention is
really a part of the period of imprisonment which he is undergoing having been
sentenced earlier for another offence. It is not the period of detention undergone by him
during the investigation, inquiry or trial of the same case in which he is later on
convicted and sentenced to undergo imprisonment. He cannot claim a double benefit
under Section 428 of the Code i.e. the same period being counted as part of the period of
imprisonment imposed for committing the former offence and also being set off against
the period of imprisonment imposed for committing the latter offence as well. The
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instruction issued by the High Court in this regard is unexceptionable. The stand of the
State Government has, therefore, to be upheld."
Thus from the said detailed discussion made by Honble Supreme Court it is clear
that the provision is couched in clear and unambiguous language and states that
the period of detention which it allows to be set off against the term of
imprisonment imposed on the accused on conviction must be one undergone by
him during investigation, enquiry of trial in connection with the same case in
which he has been convicted. Any other period which is not connected with the
said case cannot be said to be reckonable for set-off.
In the said judgment of Najakat Alia Mubarak Ali (supra) the Supreme Court has
also observed:
Section 428 of the Code is preceded by Section 427 which provides that when any
person already undergoing sentence of\imprisonment is sentenced on a subsequent
conviction of imprisonment, such imprisonment shall commence at the expiration of the
commencement to which he has been previously sentenced, unless the court directs that
the subsequent sentence shall run concurrently with such previous sentence.
(underlining supplied) Section 427 of the Code thus authorises a court of law to direct
the sentence awarded by it to run concurrently, obviously keeping in view the facts and
circumstances pertaining to the case or the accused. His detention pending
investigation, inquiry and trial in that case or some other cases being relevant
consideration while directing the sentences to run consecutively or concurrently.

The section, however, does not intend to give any benefit or bonus to an accused
guilty of commission of more than one crime by treating the period of detention
during investigation, inquiry and trial in one case as that period in the other cases
also for the purposes of set-off in the sentence. Such an entitlement requires the
judicial determination which can be adjudicated by a court awarding the sentence
in exercise of its powers under Section 427 of the Code. The words "period of
detention, if any, undergone by him during the investigation, inquiry or trial of
the same case" are important to indicate the paramount concern and intention of
the legislature to protect the interests of under-trial prisoners by giving them the
set-off of that period in "that case", at the conclusion of the trial. The Section
makes it clear that the period of detention which it allows to be set off against the
term of imprisonment imposed on the accused, on conviction, must be during the
investigation, inquiry or trial in connection with the same case in which he has
been convicted.

2. MINIMUM SENTENCE:
BENEFIT OF PROBATION WHERE MINIMUM SENTENCE
IS PRESCRIBED. DEFAULT SENTENCE WHERE MINIMUM
SENTENCE IS PROVIDED.

Wherever a minimum sentence is prescribed by the Legislature, i t is obligatory
on the part of the Courts to sentence the accused to that minimum sentence
provided and the provisions of the Probation of Offenders Act cannot be applied
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to such cases does not seem to have been shared by the Supreme Court. In the
decision Isher Das v. State of Punjab the Supreme Court was considering the
application of the provisions of the Probation of Offenders Act with regard to the
offence under the Prevention of Food Adulteration Act where also a minimum
sentence of imprisonment for a period of six months and a fine of Rs, 1000/- has
been prescribed for a second offence. The Magistrate after convicting the accused,
released him on probation of good conduct without sentencing him of any
punishment applying the provisions of the Probation of Offenders Act On appeal
the High Court taking the view that an improper order had been made by the
Magistrate suo motu took the case on file and passed an order sentencing him to
undergo simple imprisonment for a period of six months and to Pay a fine of Rs.
1000/-. Against that order, the accused filed an appeal by special leave to the
Supreme Court where it considered the question whether despite the fact that a
minimum sentence of imprisonment for a term of six months and a fine of Rs.
1,000 has been prescribed for the offence, the court can resort to the provisions
of the Probation of Offenders Act. The Supreme Court held that Sub-section (1) of
Section 4 of the Probation of Offenders Act contains the words "notwithstanding
anything contained in any law for the time being in force" and the above non
obstante clause points to the conclusion that the provisions of Section 4 of the
Probation of Offenders Act would have overriding effect and shall pervail if the
other conditions prescribed therein are fulfilled. The Supreme Court also
considered the effect of Section 18 of the Probation of Offenders Act whereunder
it is provided that the Act shall not affect the provisions of Sub-section (2) of
Section 5 of the Prevention, of Corruption Act, 1947. where, in the absence of
special reasons, a minimum sentence of imprisonment for a term of not less than
one year for those convicted under Section S of that Act is prescribed. The
Supreme Court observed that if the object of the Legislature was that the
provisions of the Probation of Offenders Act should not apply to all cases where a
minimum sentence of imprisonment is prescribed by the statute, there was no
reason to specify particularly Sub-section (2) of Section 5 of the Prevention of
Corruption Act in Section 18 of the Probation of Offenders Act. The fact that out
of various offences for which minimum sentence is prescribed only the offence
under Sub-section (2) of Section 5 of the Prevention of Corruption Act has been
mentioned in Section 18 of the Probation of Offenders Act and not the other
offences for which minimum sentence is prescribed shows that in case of such
other offences the provisions of the Probation of Offenders Act can be invoked.

On this point of deliberation reliance can be placed on Siya Ram v. The State of
Rajasthan 1984 R.L.W. 200, Roshan Lal v. The Stale of Rajasthan 1984 R.L.W.
752, Labh Singh v. The State of Rajasthan 1986 Cr. L.R. (Raj.) 1 and Mishri Lal
and Ors. V The State of Rajasthan 1989 R. Cr. C. 169.

In the case of Siya Ram, the accused was convicted Under Section 4 of the
Rajasthan Prohibition Act and under the provisions of the Rajasthan Prohibition
Act, the minimum sentence of six months was, also, required to be imposed. But
Hon'ble Mr. K.D. Sharma, C.J. (as he then was) granted the benefit of probation
to the accused by observing that minimum sentence is no bar to give benefit
under the Probation of Offenders Act. In the case of Roshan Lal, the accused was
convicted Under Section 26 of the Rajasthan Forest Act and for the offence Under
Section 26 of the Rajasthan Forest Act, the minimum sentence of six months was
required to be imposed. But this Court, in that judgment, also, came to the
conclusion that providing a provision for a minimum sentence is no ground for
refusing the benefit of probation. In the case of Labh Singh, the accused was
convicted Under Section 25 of the Indian Arms Act and this Court granted benefit
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of probation Under section 3/25 of the Indian Arms Act. From the reading of all
these authorities on the point, it is, thus, clear that merely because a minimum
sentence has been provided for an offence, that itself will not amount the barring
of the application of the provisions of the Probation of Offenders Act. If the
petitioner is otherwise entitled to the benefit of probation or if the Court comes to
the conclusion that in the facts and circumstances of the case the accused may be
given the benefit of probation or if the Court comes to the conclusion that in the
facts and circumstances of the case the accused may be given the benefit of
probation then the benefit of probation can be given to the accused.

Hon'ble Supreme Court in the case of Shanti Lal V. State of MP (2008) 1 SCC
(Cri.) 1 has held as follows; "The next submission of the learned counsel for the
appellant, however, has substance. The term of imprisonment in default of
payment of fine is not a sentence. It is a penalty which a person incurs on account
of non- payment of fine. The sentence is something which an offender must
undergo unless it is set aside or remitted in part or in whole either in appeal or in
revision or in other appropriate judicial proceedings or "otherwise". A term of
imprisonment ordered in default of payment of fine stands on a different footing.
A person is required to undergo imprisonment either because he is unable to pay
the amount of fine or refuses to pay such amount. He, therefore, can always avoid
to undergo imprisonment in default of payment of fine by paying such amount. It
is, therefore, not only the power, but the duty of the court to keep in view the
nature of offence, circumstances under which it was committed, the position of
the offender and other relevant considerations before ordering the offender to
suffer imprisonment in default of payment of fine."
Hon'ble Supreme Court in this case further held as follows; ". We are mindful and
conscious that the present case is under the NDPS Act. Section 18 quoted above
provides penalty for certain offences in relation to opium poppy and opium.
Minimum fine contemplated by the said provision is rupees one lakh ["fine which
shall not be less than one lakh rupees"]. It is also true that the appellant has been
ordered to undergo substantive sentence of rigorous imprisonment for ten years
which is minimum. It is equally true that maximum sentence imposable on the
appellant is twenty years. The learned counsel for the State again is right in
submitting that clause (b) of sub-section (1) of Section 30, CrPC authorizes the
Court to award imprisonment in default of payment of fine up to one-fourth term
of imprisonment which the Court is competent to inflict as punishment for the
offence. But considering the circumstances placed before us on behalf of the
appellant-accused that he is very poor; he is merely a carrier; he has to maintain
his family; it was his first offence; because of his poverty, he could not pay the
heavy amount of fine (rupees one lakh) and if he is ordered to remain in jail even
after the period of substantive sentence is over only because of his inability to pay
fine, serious prejudice will be caused not only to him, but also to his family
members who are innocent. We are, therefore, of the view that though an amount
of payment of fine of rupees one lakh which is minimum as specified in Section
18 of the Act cannot be reduced in view of the legislative mandate, ends of justice
would be met if we retain that part of the direction, but order that in default of
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payment of fine of rupees one lakh, the appellant shall undergo rigorous
imprisonment for six months instead of three years as ordered by the trial court
and confirmed by the High Court." In the present case for the offence under
Section 8/21of the Act the minimum sentence provided is ten years rigorous
imprisonment and a fine of Rupee one lac. The minimum sentence has already
been awarded in by the trial court. Hon'ble the Supreme Court in Shanti Lal(
supra) had held that the term of imprisonment in default of payment of fine is
not a sentence and it is a penalty which a person incurs on account of non
payment of fine . Further more Section 421 Cr.P.C. provides that if an accused
has undergone sentence in default of payment of fine, even then his liability to
pay the fine does not come to an end. The court after recording special reasons
may order for recovery of fine despite of the fact that accused has undergone
imprisonment in default of payment of fine. In the case before Hon'ble the
Supreme Court the appellant was convicted in default of payment of fine to
undergo imprisonment for a period of three years while in the present case the
appellant has been awarded two years imprisonment in default of payment of
fine. Hon'ble the Supreme Court reduced the sentence in default of payment of
fine to six months .

3. SIMPLE AND RIGOROUS
IMPRISONMENT: EFFECT THEREOF
Indian Penal Code, 1860 provides five types of punishment that can be
awarded if a person found guilty of any offence these are as provided under
section 53 of the code the punishments to which offenders are liable under the
provisions of this Code are-
1-Death;
2-Imprisonment for life;
3--Imprisonment, which is of two descriptions, namely: -
(1) Rigorous, that is, with hard labour;
(2) Simple;
4-Forfeiture of property;
5-Fine.
Here rigorous imprisonment means it has to be served doing hard labour
where as in simple imprisonment no hard labour is required to be done by the
prisoner. In certain offences where both simple & rigorous imprisonment can
be awarded, the court can decide which one has to be given as section 60 of
IPC provides sentence may be (in certain cases of imprisonment) wholly or
partly rigorous or simple
In every case in which an offender is punishable with imprisonment which
may be of either description, it shall be competent to the Court which
sentences such offender to direct in the sentence that such imprisonment
shall be wholly rigorous, or that such imprisonment shall be wholly simple, or
that any part of such imprisonment shall be rigorous and the rest simple.


4. OPPORTUNITY OF
HEARING: OBJECT, SCOPE & NATURE

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Various provisions of Code of Criminal Procedure provides for preliminary
hearing. During a preliminary hearing, the judge decides whether or not there
is substantial evidence to hold a trial.

In Sessions Case in view of section235 of the Code of Criminal Procedure, if
the accused is convicted, the Court unless proceeds in accordance with
provision of section 360, has to hear the accused on the question of sentence
and thereafter, the Court has to pass the sentence in accordance with law.

In Santa Singh v. State of Punjab 1977 AIR 1066 Supreme Court has observed that under the
provisions of the Code of Criminal Procedure, 1973, it is incumbent on the Sessions Judge
delivering a judgment of conviction to stay his hands and hear the accused on the question of
sentence and give him an opportunity to, lead evidence which may also be allowed to be
rebutted by the prosecution.

It is required to be noted that when the Statute prescribes minimum sentence,
then even if the accused is heard on the question of sentence, the minimum
sentence is to be imposed. However, if the Court has to exercise the discretion
while awarding punishment, then the question of hearing the accused would
arise. If the Court is of the view that punishment provided for this offence
which is minimum is to be imposed, then there may not be question of
hearing the accused on the question of sentence, but if the Court is of the
opinion that more than the minimum sentence is required to be imposed,
then the Court has to hear the accused on the question of sentence. But when
minimum sentence is prescribed and the Court is awarding that minimum
punishment, there may not be question of hearing the accused as
contemplated u/s 248(2) of the Code of Criminal Procedure. Section 235(2) of
the Cr. P.C. and sec. 248(2), contemplates hearing of an accused in case the
court convicts. In case of a trial on a warrant case by Magistrate if punishment
is to be imposed after exercising discretion, then procedure under section
248(2) of the Criminal Procedure Code is to be followed. If on conviction,
court of Sessions does not follow the procedure laid down under sec. 360 of
Cr. P.C. or a Judicial Magistrate following warrant trial procedure. does not
follow the procedure either u/s 325 or sec. 360 of the Cr. P.C. then the
accused is required to be heard on the question of sentence.
The apex Court in case of TARLOK SINGH vs. STATE OF PUNJAB reported
in AIR 1977 SC 1747 in para-2 pointed out as under:-
"Section 235, Cr.P.C. [1974] makes a departure from the previous Code on account of
humanist considerations to personalize the sentence to be awarded. The object of the
provision is to give a fresh opportunity to the convicted person to bring to the notice of
the court such circumstances as may help the court in awarding an appropriate
sentence having regard to the personal, social and other circumstances of the case. Of
course, when it is a case of conviction u/s 302, IPC, if the minimum sentence is imposed,
the question of providing an opportunity u/s 235 would not arise."
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5. WHETHER
CONFISCATION / FORFEITURE OF PROPERTY IS A
SENTENCE?
Section 53 of the Penal Code also includes forfeiture of property as one of the
punishments. Forfeiture provided under Section 53 is undoubtedly a penalty or
punishment within the meaning of Article 20(1).
Section 452 of Cr. P.C. reads as under:
When an inquiry or trial in any Criminal Court is concluded, the Court may make
such order as it thinks fit for the disposal, by destruction, confiscation or delivery
to any person claiming to be entitled to possession thereof or otherwise, of any
property or document produced before it or in its custody, or regarding which
any offence appears to have been committed, or which has been used for the
commission of any offence.
Rajasthan High Court in Brijlal vs The State Of Rajasthan, 1982 WLN 785
made the following observations regarding order of confiscation made under
Section 452 Cr. P. C. :
19. The prosecution being under the Penal Code and not under any Special Act, Sections 4(2)
and 5 of the Cr. P.C. are not attracted. Simply because the weapon of offence happens to be fire
arm it will not come out of the ambit of the term "property" mentioned in Section 452 of the Cr.
P. C The Court is authorised to dispose of the weapon : of offence under this section Whatever be
its nature, The gun would fall in the category as lathi, axe or any other weapon used for the
commission of the offence under the Penal Code. I am therefore, inclined to hold that the trial of
the petitioner not being under any special enactment the Court cannot be said to be in error in
pressing into service the provisions of Section 452, Cr. P. C
20. In this view of the matter, there is no illegality in the order for confiscation of the gun.

6. CASES WHEREIN PROBATION CANNOT BE GIVEN: HOW
DISCRETION IS TO BE USED?

Although probation is to a large extent a non-punitive method of handling
offenders, it is developed within the framework of a legal system which is
basically punitive. From the constitutional point of view probation is the
suspension of a sentence during a period of liberty in community conditional
upon good behavior of the convicted offender. Suspension of sentence is an act of
mercy or judicial leniency which allow hopeful cases or first offenders another
chance.
Offenses in which benefit of probation can and cannot be granted.
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Section 4, as described above, gives a general direction to the court for deciding
when and when not to give the benefit of probation. The words, "if the court is of
the opinion" basically give discretionary power to the court in this
respect. Section 6, however, tries to impress upon the court to lean in favor of
giving benefit in cases of young and immature adults. When any person under
twenty-one years of age is found guilty of having committed an offence
punishable with imprisonment (but not with imprisonment for life), the court by
which the person is found guilty shall not sentence him to imprisonment unless it
is satisfied that, having regard to the circumstances of the case including the
nature of the offence and the character of the offender, it would not be desirable
to deal with him under section 3 or section 4, and if the court passes any sentence
of imprisonment on the offender, it shall record its reasons for doing so. For the
purpose of satisfying itself whether it would not be desirable to deal under section
3 or section 4, the court shall call for a report from the probation officer and
consider the report, if any, and any other information available to it relating to
the character and physical and mental condition of the offender.

Thus, even though no mathematical rule is given, the general intention of the
legislature is to give the benefit of probation as much as possible. In Jugal
Kishore Prasad vs State of Bihar 1972, the Supreme Court observed that the
object of the Probation of Offenders Act, "is in accordance with the present trend
in the field of penology, according to which efforts should be made to bring about
correction and reformation of the individual offenders and not to resort to
retributive justice. Modern criminal jurisprudence recognizes that no one is a
born criminal and that a good many crimes are the product of socio-economic
milieu."

In absence of a precise formula to determine when and when not the benefit of
probation can be given, we have to look at SC court judgments to understand
what kind of offenses are eligible for this benefit. SC has accepted the
applicability of probation for many kinds of offences. For example, inIsherdas v.
State of Punjab, the Supreme Court held that the Probation of Offenders Act was
applicable to the offenses under the Prevention of Food Adulteration Act, 1954.

In case of Mohamad Aziz Mohamed Nasir vs State Of Maharashtra, AIR 1976, the
appellant was below 21 years of age. The appellant was at one time a well known
child film actor and won several awards for acting in films. Subsequently he fell
in bad company and took to evil ways. SC held that even if the point relating to
Section 6 is not raised before the High Court, the court was bound to take notice
of the provisions of the section and give its benefit to the applicant. It further held
that Section 6 lays down an injunction not to impose a sentence of imprisonment
on a reason who is under 21 years of' age and if found guilty of having committed
an offence punishable with imprisonment other the that for if unless it is satisfied
that it would not be desirable to deal with him under Section 3 or Section 4. This
inhibition on the power of the court to impose a sentence of imprisonment
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applies not only at the state of trial but also at the stage of High Court or any
other court when the case comes before it in appeal or revision.

However, in Uttam Singh vs Delhi Administration, 1971, the appellant was of 36
yrs of age and was caught with 3 sets of playing cards and obscene photographs.
SC refused to allow him the benefit of release on probation having regards to his
age and nature of crime.


There have been cases where the court has let of even rapists on probation and
there have been cases where even minor offenses have not been given the benefit
of probation. It can be said that this benefit is given on case to case basis after
looking at the peculiarities of the case. It is not possible to categorize the offences
in this respect.

Some of the Statues containing penal provision specifically restricts the
application of probation to the offenders.
a) Sec. 13 of Pervention of Corruption Act
b) Person convicted under sub-section (1) of section 3 or under section 6 or
section 9 SUPPRESSION OF IMMORAL TRAFFIC INWOMEN AND
GIRLS ACT, 1956
c) Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989
d) PREVENTION OF FOOD ADULTERATION, ACT 1954
It is also important to note here that In Dalbir Singh v. State of Haryana, AIR
2000 SC1677, Honble Supreme Court observed that accused convicted for
offences under Ss. 279 and 304-A of the Penal Code, 1860 is not entitled to the
benevolent provision of S. 4 of the Probation of Offenders Act, 1958


7. AWARD OF COMPENSATION AND PROSECUTION COST:
SCALE AND OTHER ASPECTS

No compensation can be adequate nor can it be of any respite for the victim but
as the State has failed in protecting such serious violation of a victims
fundamental right, the State is duty bound to provide compensation, which may
help in the victims rehabilitation. The humiliation or the reputation that is
snuffed out cannot be recompensed but then monetary compensation will at least
provide some solace.
In 2009, a new Section 357A was introduced in the Code which casts a
responsibility on the State Governments to formulate Schemes for compensation
to the victims of crime in coordination with the Central Government whereas,
previously, Section 357 ruled the field which was not mandatory in nature and
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only the offender can be directed to pay compensation to the victim under this
Section. Under the new Section 357A, the onus is put on the District Legal Service
Authority or State Legal Service Authority to determine the quantum of
compensation in each case. However, no rigid formula can be evolved as to have a
uniform amount, it should vary in facts and circumstances of each case. In the
case of State of Rajasthan vs. Sanyam, Lodha,(2011) 13 SCC 262, this Court held
that the failure to grant uniform ex-gratia relief is not arbitrary or
unconstitutional. It was held that the quantum may depend on facts of each case.
The concept of the payment of interim compensation has been recognized by this
Court in Bodhisattwa Gautam vs. Miss Subhra Chakraborty, (1996) 1 SCC 490. It
referred to Delhi Domestic Working Womens Forum vs. Union of India and
others to reiterate the centrality of compensation as a remedial measure in case
of rape victims. It was observed as under:-
If the Court trying an offence of rape has jurisdiction to award the compensation at the
final stage, there is no reason to deny to the Court the right to award interim
compensation which should also be provided in the Scheme.
In P. Rathinam vs. State of Gujarat, (1994) SCC (Crl) 1163, which pertained to
rape of a tribal woman in police custody Supreme Court awarded an interim
compensation of Rs. 50,000/- to be paid by the State Government.
Likewise, Supreme Court, in Railway Board vs. Chandrima Das, (2000) 2 SCC
465, upheld the High Courts direction to pay Rs. 10 lacs as compensation to the
victim, who was a Bangladeshi National.
The Supreme Court of Bangladesh in The State vs. Md. Moinul Haque and Ors.
(2001) 21 BLD 465 has interestingly observed that victims of rape should be
compensated by giving them half of the property of the rapist(s) as compensation
in order to rehabilitate them in the society. If not adopting this liberal reasoning,
we should at least be in a position to provide substantial compensation to the
victims.
Nevertheless, the obligation of the State does not extinguish on payment of
compensation, rehabilitation of victim is also of paramount importance. The
mental trauma that the victim suffers due to the commission of such heinous
crime, rehabilitation becomes a must in each and every case.
In (Dr.) Jacob George v. State of Kerala, (1994) 3 SCC 430, Honble Apex Court
held that the power to award compensation to victims should be liberally
exercised by courts to meet the ends of justice. Where the amount fixed was
repulsively low so as to make it a mockery of the sentence, it would be enhanced;
the financial capacity of the accused, enormity of the offence, extent of damage
caused to the victim, are relevant considerations in fixing up the amount.


13

8. BENEFIT OF SECTION 12 OF PROBATION OF OFFENDERS
ACT, 1958: HOW DISCRETION IS TO BE USED?
Section 12 of the Probation of Offenders Act, 1958 reads thus:
Notwithstanding anything contained in any other law, a person found guilty of an
offence and dealt with under the provisions of Section 3 or Section 4 shall not
suffer disqualification, if any, attaching to a conviction of an offence under such
law:
Provided that nothing in this section shall apply to a person who, after his release
under Section 4, is subsequently sentenced for the original offence.
In Arjun Lal Sharma v. State of Rajasthan, S.B. Criminal Miscellaneous Petition
No. 2267 of 2013 (Order dated: 11.07.2013), Honble Rajasthan High Court, has
given direction under section 483 Cr.P.C. to all the Courts of Rajasthan that when
the benefit of Section 3 (Admonition) or 4 (Probation) of Probation of offenders
Act, 1958 is given to any accused, he shall also be given benefit of Section 12 of
the Probation of offender Act.

9. CALLING FOR THE REPORT OF PROBATION OFFICER
AND SUPERVISORY ORDERS
S. 4(2) and S. 6(2) of the Probation of Offenders Act provide that the judge would
consider the report of the probation officer before deciding on whether to grant
probation. S. 14 of the said Act lays down the duties of the Probation Officers.
The pre-sentence report of the Probation Officer is the fundamental document
for the guidance of the Court whether to grant the benefit of probation to the
accused or not. The object of the pre-sentence report is to appraise the court
about the character of the offender, exhibit his surroundings and antecedents and
throw light on the background which prompted him to commit the offence and
give information about the offenders conduct in general and chances of his
rehabilitation on being released on probation.
The judge may also pass a supervision order under section 4(3) of the Act,
whereby the offender is placed under the supervision of a probation officer and
certain conditions are imposed upon him. This is mostly in the form of regular
visits to the supervising officer. Some of the conditions which must be followed
have been laid down in S. 4(4). On the application of the probation officer such
conditions may be varied- S. 8(2) and also the offender may be discharged- S.
8(3). If the offender fails to follow the conditions laid down by the Court, the
original sentence against him may be revived S. 9.
14

The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the
report of a probation officer or a recognized voluntary organization to be
considered before passing a sentence. The Magistrate appointed as a member of
the Board constituted under this Act must know something of child psychology.
The Board would pass orders against a juvenile. The Act provides for the setting
up of Observation and Special Homes by the State Government where the
juvenile could be placed. Here the rehabilitation and social integration of the
child would take place. It also provides for an after- care programme which would
take care of the delinquent child after he has been discharged from these homes,
based on the report of the Probation Officer. The Probation officers appointed
under the probation of Offenders Act would also function under the Juvenile
Justice (Care and Protection of Children) Act.

10. RECOVERY OF AMOUNT OF FINE/ COMPENSATION

Section 421 Cr. P. C. provides
(1) When an offender has been sentenced to pay a fine, the Court passing the
sentence may take action for the recovery of the fine in either or both of the
following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any
movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the
amount as arrears of land revenue from the movable or immovable property, or
both, of the defaulter:

Provided that, if the sentence directs that in default of payment of the fine, the
offender shall be imprisoned, and if such offender has undergone the whole of
such imprisonment in default, no Court shall issue such warrant unless, for
special reasons to be recorded in writing, it considers it necessary so to do, or
unless it has made an order for the payment of expenses or compensation out of
the fine under section 357.

It is the duty of the Court under section 421 of the Code of Criminal Procedure,
1973, to find out whether there are any special reasons to issue a warrant under
the proviso and to issue the warrant where there are special reasons. Where
there are special reasons, such as discovery of property within the time specified,
it is the duty of the Court to proceed with the execution proceedings regarding the
fine.
Even in the absence of special reasons, under the said section 421, it is the duty of
15

the Court to pursue the execution of warrant or warrants issued under the said
section, wherever the Court has made an order for the recovery of expenses or
compensation out of the fine under section 357 of the Code of Criminal Procedure
1973. Where there is such an order, the Court cannot just return the warrant to
the Court issuing it, stating that the sentence of imprisonment in default of
payment of fine has been undergone.
If, all the processes of law issued under the aforesaid provisions prove abortive,
and the Court ultimately comes to the conclusion that the amount of fine is not
recoverable, the Court may write off the fine from the Fine Register after passing
the necessary orders in that behalf.

When an accused, who is sentenced to pay a fine, applies to the Court convicting
him that the amount of fine may be recovered from the amount deposited by him
in such Court as security, the said Court shall make an order accordingly, and the
amount of fine shall be recovered from the amount, if any, deposited as secutiry.

When any Court recovers a fine, or any portion thereof, inflicted upon a prisoner
who is already in jail, or who is liable to be further detained in jail in default of
payment of that fine, such Court shall immediately send a communication to the
Jailor of the amount of the fine so recovered in the form given at the end of this
chapter.

When a Court has committed a person to jail in default of payment of fine, and
such person is subsequently transferred to another jail, the Superintendent of the
former jail shall at once notify the transfer to the Court.

11. FINE AS SENTENCE AND AS COMPENSATION
AND
12. COMPENSATION UNDER SECTION 357 (3) CR.P.C

Fine as sentence
Few Sections are relevant which deal with imposition of fine and imprisonment
in default of payment of fine. They are Sections 63 to 70 and reads thus;
63. Amount of fine: Where no sum is expressed to which a fine may extend, the
amount of fine to which the offender is liable is unlimited, but shall not be
excessive.
64. Sentence of imprisonment for non- payment of fine In every case, of an
offence punishable with imprisonment as well as fine, in which the offender is
sentenced to a fine, whether with or without imprisonment, and in every case of
an offence punishable with imprisonment or fine, or] with fine only, in which the
offender is sentenced to a fine, it shall be competent to the Court which sentences
16

such offender to direct by the sentence that, in default of payment of the fine, the
offender shall suffer imprisonment for a certain term, which imprisonment shall
be in excess of any other imprisonment to which he may have been sentenced or
to which he may be liable under a commutation of a sentence.
65. Limit to imprisonment for non-payment of fine, when imprisonment and fine
awardable The term for which the Court directs the offender to be imprisoned in
default of payment of a fine shall not exceed one-fourth of the term of
imprisonment which is the maximum fixed for the offence, if the offence be
punishable with imprisonment as well as fine.
66. Description of imprisonment for non- payment of fine The imprisonment
which the Court imposes in default of payment of a fine may be of any description
to which the offender might have been sentenced for the offence.
67. Imprisonment for non-payment of fine, when offence punishable with fine
only If the offence be punishable with fine only, the imprisonment which the
Court imposes in default of payment of the fine shall be simple, and] the term for
which the Court directs the offender to be imprisoned, in default of payment of
fine, shall not exceed tile following scale, that is to say, for any term not exceeding
two months when the amount of the fine shall not exceed fifty rupees, and for any
term not exceeding four months when the amount shall not exceed one hundred
rupees, and for any term not exceeding six months in any other case.
68. Imprisonment to terminate on payment of fine The imprisonment which is
imposed in default of payment of a fine shall terminate whenever that fine is
either paid or levied by process of law.
69. Termination of imprisonment on payment of proportional part of fine If,
before the expiration of the term of imprisonment fixed in default of payment,
such a proportion of the fine be paid or levied that the term of imprisonment
suffered in default of payment is not less than proportional to the part of the fine
still unpaid, the imprisonment shall terminate.
70. Fine leviable within six years or during imprisonment-Death not to discharge
property from liability The fine, or any part thereof which remains unpaid, may
be levied at any time within six years after the passing of the sentence, and if,
under the sentence, the offender be liable to imprisonment for a longer period
than six years, then at any time previous to the expiration of that period; and the
death of the offender does not discharge from the liability any property which
would, after his death, be legally liable for his debts.
17. Section 30, CrPC provides for sentence of imprisonment in default of fine. It is
also relevant and reads as under;
30. Sentence of imprisonment in default of fine.- (1) The Court of a Magistrate
may award such term of imprisonment in default of payment of fine as is
authorised by law:
17

Provided that the term-
(a) is not in excess of the powers of the Magistrate under section 29;
(b) shall not, where imprisonment has been awarded as part of the substantive
sentence, exceed one-fourth of the term of imprisonment which the Magistrate is
competent to inflict as punishment for the offence otherwise than as
imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a
substantive sentence of imprisonment for the maximum term awardable by the
Magistrate under section 29.
Reference may be made to Section 25 of the General Clauses Act, 1897 which
states;
25. Recovery of fines.- Sections 63 to 70 of the Indian Penal Code (45 of 1860)
and the provisions of the Code of Criminal Procedure (5 of 1898) for the time
being in force in relation to the issue and the execution of warrants for the levy of
fines shall apply to all fines imposed under any Act, Regulation, rule or bye-law
unless the Act, Regulation, rule, or bye-law contains an express provision to the
contrary.
From the above provisions, in our opinion, it is clear that if a person commits
any offence under IPC, he can be punished and when such offence is punishable
with substantive sentence and fine, or substantive sentence or fine, or fine only,
in default of payment of fine, he can be ordered to undergo imprisonment.
Section 30, CrPC prescribes maximum period for which a Court may award
imprisonment in default of payment of fine.
Important issue is whether the above statutory provisions would apply to special
laws and offences committed by a person not covered by IPC. In Narcotic Drugs
and Psychotropic Substances Act, 1985 which is a special law, there is no express
power in a Court to order imprisonment in default of payment of fine. The law is
well-settled and it has been held since more than a century that such an order can
be passed by a competent Court of law having power to impose fine as one of the
punishments.

In Palaniappa Gounder vs State Of Tamil Nadu & Ors [dated 4 March, 1977]: AIR
1977 SC 1323,, Honble Apex Court held that amount of fine must not be
excessive. The imposition of fine at the tune of Rupees 20,000/- was held to be
excessive.

Fine as compensation
Section 357 of Code of Criminal Procedure deals with the order to pay
compensation. Sub-section (1) therein provides for payment of compensation
18

when fine forms part of the sentence. Under sub-section (1), when the sentence
includes fine, there could be a direction to pay either in full or part of the fine as
compensation. Sub-section (3) of Section 357 of Code of Criminal Procedure
applies when fine does not form part of the sentence. If fine does not form part of
the sentence, as provided under sub-section (3) of Section 357 of Code of
Criminal Procedure, the court while imposing a sentence may 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. The compensation provided
under sub-section (1) of Section 357 of Code of Criminal Procedure is to be
applied in defraying the expenses properly incurred in the prosecution or in the
payment to any person of compensation for any loss or injury caused by the
offence, when compensation is recoverable by such person in a Civil Court or
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, entitled to
recover damages from the person sentenced for the loss resulting to them from
such death or 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 bonafide purchaser of such property for the loss of the same if
such property is restored to the possession of the person entitled thereto. Sub-
section (1) and (3) of Section 357 of Code of Criminal Procedure read:-
" 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;
(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)xxxxx (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
19

has suffered any loss or injury by reason of the act for which the accused person
has been so sentenced".
Section 358 of Code of Criminal Procedure provides for compensation to person
groundlessly arrested. Under sub-section (1) therein, whenever any person causes
a police officer to arrest another person, if it appears to the Magistrate by whom
the case is heard that there was no sufficient ground of causing such arrest, the
Magistrate may award such compensation, not exceeding one thousand rupees to
be paid by the person so causing the arrest to the person so arrested, for his loss
of time and expenses in the matter, as the Magistrate thinks fit. Sub-section (3)
further provides that the compensation awarded under the Section may be
recovered as if it were a fine and if it cannot be so recovered the person by whom
it is payable shall be sentenced to simple imprisonment for such term not
exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.
Therefore, while sub- section (1) provides for compensation, sub- section (3)
provides for the mode of recovery under Section 421 of Code of Criminal
Procedure as if it is a fine and on the failure to realise it, to direct simple
imprisonment for a term not exceeding 30 days.
Section 359 of Code of Criminal Procedure provides for payment of cost in non-
cognizable cases. Under sub-section (1), whenever any complaint of a non-
cognizable offence is made to a Court, the Court, if it convicts the accused, may,
in addition to the penalty imposed upon him, order him to pay to the
complainant, in whole or in part, the cost incurred by him in the prosecution, and
may further order that in default of payment, the accused shall suffer simple
imprisonment for a period not exceeding thirty days and such costs may include
any expenses incurred in respect of process-fees, witnesses and pleader's fees
which the Court may consider reasonable. Sub- section (2) provides that 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 power of revision.
Section 421 of Code of Criminal Procedure deals with the realisation of fine.
Section 421 of Code of Criminal Procedure reads:-
421.Warrant for levy of fine -
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take
action for the recovery of the fine in either or both of the following ways, that is to say, it may -
(a) issue a warrant for the levy of the amount by attachment and sale of any moveable property
belonging to the offender;
(b)issue a warrant to the Collector of the district, authorising him to realise the amount as arrears
of land revenue from the movable or immovable property, or both, of the defaulter.
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be
imprisoned, and if such offender has undergone the whole of such imprisonment in default, no
Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it
20

necessary so to do, or unless it has made an order for the payment of expenses or compensation
out of the fine under Section 357.
(2)The State Government may make rules regulating the manner in which warrants under clause
(a) of sub-section (1) are to be executed, and for the summary determination of any claims made
by any person other than the offender in respect of any property attached in execution of such
warrant.
(3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the
Collector shall realise the amount in accordance with the law relating to recovery of arrears of
land revenue, as if such warrant were a certificate issued under such law:
Provided that no such warrant shall be executed by the arrest or detention in prison of the
offender".

Section 421 of Code of Criminal Procedure, as such is applicable only for
realising the sentence of fine. Section 431 of Code of Criminal Procedure deals
with recovery of money, which is not otherwise provided under the Code of
Criminal Procedure. Section 431 of Code of Criminal Procedure reads.
"431. Money ordered to be paid recoverable as a fine - Any money (other than a fine)
payable by virtue of any order made under this Code, and the method of recovery of
which is not otherwise expressly provided for, shall be recoverable as if it were a fine:
Provided that section 421 shall, in its application to an order under section 359, by virtue
of this section, be construed as if in the proviso to sub-section (1) of section 421, after the
words and figures "under section 357", the words and figures "or an order for payment of
costs under section 359" had been inserted".
In view of the proviso to Section 431 of Code of Criminal Procedure, the proviso
to Section 421 of Code of Criminal Procedure is to be read as inclusive of an order
for payment of cost under Section 359 of Code of Criminal Procedure along with
the compensation out of fine under Section 357 of Code of Criminal Procedure.
It is thus clear that the compensation payable under sub-section (1) of Section
357 of Code of Criminal Procedure is either full or part of the fine which is the
sole or one of the sentence of fine (punishment sixthly of Section 53 of Indian
Penal Code) awarded to the accused. Necessarily as it is part of the fine, there
would be a default sentence, as provided under Section 64 of Indian Penal Code.
The compensation awarded under sub-section (3) of Section 357 of Code of
Criminal Procedure cannot form part of the fine, as compensation under Section
357(3) of Code of Criminal Procedure could be awarded only if fine does not form
part of the sentence. Sub-section (3) does not specifically provide for a default
sentence or the mode of recovery of compensation. The compensation awarded
under Section 358 of Code of Criminal Procedure itself provides for the mode of
recovery as provided under Section 421 of Code of Criminal Procedure, as if it is a
fine. It also provides for a default sentence, if it cannot be recovered as provided
under Section 421. The compensation awarded under Section 359 of Code of
Criminal Procedure provides for a default sentence. But the section does not
21

provide for realisation of the compensation as if it is a fine, as in Section 358 of
Code of Criminal Procedure.
Section 431 of Code of Criminal Procedure is to be appreciated in this
background. Section 431 of Code of Criminal Procedure applies (i) when any
money other than fine is payable by virtue of an order made under the Code and
(ii) the method of its recovery is not otherwise expressly provided for. Under the
Section, such money is recoverable as if it were a fine. As a compensation
awarded under Section 359 of Code of Criminal Procedure does not provide for
the method of its recovery, Section 359 of Code of Criminal Procedure is included
in the proviso to Section 431, providing that proviso to Section 421 of Code of
Criminal Procedure is to be construed as inclusive of an order for payment of cost
under Section 359 of Code of Criminal Procedure. The compensation awarded
under Section 358 of Code of Criminal Procedure expressly provides for the mode
of its recovery and also default sentence. Section 358 of Code of Criminal
Procedure was not included in the proviso to Section 431, as the mode of recovery
is there in the section. Section 359 was included in the proviso to Section 421(1),
by virtue of the proviso to Section 431, as mode of recovery of the compensation
is not expressly provided in the section as is the case in Section 358. As the
compensation payable under Section 357 of Code of Criminal Procedure, was not
provided with a default sentence, it was not included in the proviso to Section 431
of Code of Criminal Procedure and thereby it was not included in the proviso to
Section 421(1) of Code of Criminal Procedure.
The compensation payable under Section 357 of Code of Criminal Procedure,
both under sub-section 1 and 3, is recoverable under Section 421 of Code of
Criminal Procedure by virtue of Section 431 of Code of Criminal Procedure. The
compensation awarded under Section 357 is money payable under the Code. No
method of recovery of compensation is expressly provided under Section 357(3)
of Code of Criminal Procedure. Hence recovery of that compensation can only be
as provided under Section 421 of Code of Criminal Procedure.
If there is no proviso to Section 421 of Code of Criminal Procedure, even if there
is a default sentence for the fine awarded and an accused has undergone the
sentence, the fine could be realised as provided under sub-section (1) of Section
421 of Code of Criminal Procedure. But in view of the proviso, if there is a
sentence of fine with a default sentence, once the default sentence is undergone
and the fine is sought to be reallised thereafter, the proviso is to be applied. The
proviso mandates that if sentence directs that in default of payment of fine, the
offender shall be imprisoned, and if such offender has undergone the whole of
such imprisonment in default, no court shall issue such warrant unless for special
reasons to be recorded in writing, court considers it necessary to do so after
recording special reasons in writing to that effect or unless it has made an order
for payment of expenses or compensation out of fine under Section 357 of Code
of Criminal Procedure. The proviso therefore makes it clear that if an accused,
who was sentenced to pay a fine with a default sentence, had not paid the fine
and consequently had undergone the default sentence, the fine cannot be realised
22

thereafter, unless there is a direction to pay compensation out of the fine as
provided under sub-section (1) of Section 357 of Code of Criminal Procedure, or a
direction to pay compensation under Section 359, without recording in writing
for realising the same. Such special reasons are to be recorded, only if there is no
direction to pay compensation under Section 357(1) or 359. If there is such a
direction, even without recording any special reason, the part or full of the fine
(as the case may be) or the compensation awarded under Section 359 could be
realised. The fact that the accused person has already undergone the default
sentence does not make any difference. Special reasons are to be recorded only in
other cases, where an accused has undergone the default sentence for the non
payment of fine.
The fact that an offender has undergone the default sentence for non payment of
compensation awarded under Section 357(3) of Code of Criminal Procedure will
not wipe out the compensation awarded. The complainant or the injured to
whom the compensation is awarded is entitled to realise the same, in spite of the
default sentence undergone. By virtue of the provisions of Section 431, the
compensation so awarded is to be recovered as provided under Section 421 of
Code of Criminal Procedure. In spite of the defaut sentence undergone, the court
is competent to issue warrant for recovery of the compensation. No special
reasons are to be recorded for issuing the warrant.

13. VICTIM COMPENSATION SCHEME WITH REFERENCE
TO SECTION 357A CR.P.C.
Section 357-A of the Code of Criminal Procedure been introduced by means of
the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) which has
come into force w.e.f. 31.12.2009 which reads as follows:
"357-A. Victim Compensation Scheme-(1) Every State Government in co-
ordination with the Central Government shall prepare a scheme for providing
funds for the purpose of compensation to the victim or his dependents who have
suffered loss or injury as a result of the crime and who require rehabilitation."
A cursory glance through subsection (1) of Section 357-A would make it
undoubtedly clear that it is the obligation of the State Government, in
coordination with the Central Government, to prepare a scheme for the purpose
of granting compensation to the victims of crimes. The scheme in Rajasthan has
been framed and has been put to effect.
Section 357(A) of the Cr.P.C., enables the criminal courts as well as the Legal
Services Authorities to recommend for payment of compensation as per the
scheme.

23

In Rajasthan Rajasthan Victim Compensation Scheme, 2011 has been framed and
implemented. State Legal Services Authority and District Legal Services
Authorities are implementing this scheme with a view to ensure compensation to
the victim of rape, accident and others.



Submitted by : ANANT BHANDARI, ADJ 1, BHILWARA

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