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Supreme Court of India
Dharmesh @ Dharmendra @ Dhamo … vs The State Of Gujarat on 7 July, 2021Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Hemant Gupta
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.432 OF 2021
[Arising from SLP (Crl) No.673/2021]
DHARMESH @ DHARMENDRA @
DHAMO JAGDISHBHAI @
JAGABHAI BHAGUBHAI RATADIA & ANR. … Appellants
Versus
THE STATE OF GUJARAT …Respondent
JUDGMENT
SANJAY KISHAN KAUL, J.
1. An unfortunate incident took place on 10.11.2019, which is
alleged by the complainant to be caused by certain members of
his caste providing assistance to the police which resulted in a
free fight where the appellants herein were also present. Two
persons succumbed to their injuries and an FIR was registered on
11.11.2019 with the Amreli Police Station against 13 persons,
Signature Not Verified
being CR No.I-94 of 2019 under Sections 302, 307, 324, 323,
Digitally signed by
RASHI GUPTA
Date: 2021.07.10
506(2), 504, 143, 144, 147, 148, 149, 120B and 34 of the IPC as
13:15:35 IST
Reason:
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well as Section 135(ii) of the Gujarat Police Act. In pursuance
of the investigations chargesheet was filed in the Court. A
counter FIR was also filed on 11.11.2019, being I-95/2019
against the complainant and other witnesses under Sections 324,
323, 504, 506(2), 143, 144, 147, 148 and 149 of the IPC as well
as Section 135(ii) of the Gujarat Police Act.
2. The appellants before us were arrayed as Accused Nos.12 & 13
and were arrested on 11.11.2019. Upon applying for bail, in
terms of the impugned judgment dated 15.12.2020, bail was
granted to them. However, they are aggrieved by the condition
imposed on them for bail, requiring them to deposit Rs.2.00 lakh
each as compensation to the victims before the learned trial court
within a period of three months.
3. The narrow compass of the arguments before us rests on the
absence of any provision in the Code of Criminal Procedure,
1908 (hereinafter referred to as the ‘CrPC’) entitling the Court to
impose such a condition for payment of compensation for grant
of bail. It is the submission of the learned counsel for the
appellants that the High Court imposed this condition for bail in
view of the “amended provisions” relating to victim
compensation without referring to any specific provision.
4. Learned counsel for the appellants took us through different
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provisions dealing with the aspect of compensation under the
CrPC.
5. In respect of the aforesaid, the first provisions referred to was
Section 357, which reads as under:
“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) 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.
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(3) When a Court imposes a sentence, of which fine does not
form a part, the Court may, when passing judgment, order the
accused person to pay, by way of compensation, such amount
as may be specified in the order to the person who has
suffered any loss or injury 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.”
(emphasis supplied)
6. In the aforesaid context it was pointed out that the essential
requirements under this section are: (a) imposition of fine or
sentence; (b) the aforesaid would naturally be at the time of
passing of the judgment; (c) orders the whole or any part of the
fine be recovered.
7. In the aforesaid scenario as per clause (d) of sub-section (1) of
Section 357 of the CrPC the said amount could be utilised for
payment of compensation for any loss or injury caused by the
offence when such amount would be recoverable in a civil court.
8. This Court’s attention has also been invited to sub-section (3) of
Section 357 CrPC, which again begins with “when the court
imposes a sentence” and where a “fine does not form a part”, an
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accused may be asked to pay compensation when passing the
judgment.
9. It is, thus, submitted that it is clear from a plain reading of
Section 357 that such compensation can only arise after the
conclusion of trial albeit, of course, the same being a matter of
discretion. Thus, without a full-fledged trial there cannot be a
sentence and, thus, there cannot be any such compensation.
10. The other provision referred to is Section 235(2) of the CrPC.
Section 235 CrPC reads as under:
“235. Judgment of acquittal or conviction.
(1) After hearing arguments and points of law (if any), the
Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of section 360,
hear the accused on the question of sentence, and then pass
sentence on him according to law.”
(emphasis supplied)
11. It is submitted that a Judge has to hear an accused on the
question of sentence, which would also support the plea as per
the scheme of the Act that the sentence must precede grant of
compensation.
12. It is in the aforesaid context that this Court had opined in
Palaniappa Gounder v. State of Tamil Nadu &Ors. 1 that a court
11977 SCR (3) 132
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must take into account the nature of the crime, the injury
suffered, the justness of the claim, the capacity to pay and other
relevant circumstances in fixing the amount of fine or
compensation. These aspects would be considered only after
giving an opportunity to the person convicted to hear him out on
these aspects and that would naturally be post the conviction.
The grant of bail, it was contended, would only be as we say,
even if charges are framed, a prima facie view based on the
principle of not unnecessarily keeping a person in custody.
13. Learned counsel also referred to the provisions of Section 250(1)
of the CrPC, which reads as under:
“250. Compensation for accusation without reasonable
cause.
(1) If, in any case instituted upon complaint or upon
information given to a police officer or to a Magistrate, one
or more persons is or are accused before a Magistrate of any
offence triable by a Magistrate, and the Magistrate by whom
the case is heard discharges or acquits all or any of the
accused, and is of opinion that there was no reasonable
ground for making the accusation against them or any of
them, the Magistrate may, by his order of discharge or
acquittal, if the person upon whose complaint or information
the accusation was made is present, call upon him forthwith
to show cause why he should not pay compensation to such
accused or to each or any of such accused when there are
more than one; or, if such person is not present, direct the
issue of a summons to him to appear and show cause as
aforesaid.”
(emphasis supplied)
14. The aforesaid provision comes also at the same stage albeit
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where an accused is acquitted to award compensation if the
Court is satisfied that there was no reasonable ground for making
the accusation against him. This is, of course, in a contra
scenario.
15. One further aspect pointed out by learned counsel for the
appellant is that the inadequacy of compensation is appealable
under Section 372 of the CrPC, which would naturally imply
that a conclusion has been reached on imposition of sentence
and/or fine. The condition for award of damages as a condition
for bail would not be appealable.
16. We called upon learned counsel for the State to address
submissions in this regard but she was not able to portray a
picture against what has been placed before us by the learned
counsel for the appellants and, really cannot be so. In our view
the objective is clear that in cases of offences against body,
compensation to the victim should be a methodology for
redemption. Similarly, to prevent unnecessary harassment,
compensation has been provided where meaningless criminal
proceedings had been started. Such a compensation can hardly
be determined at the stage of grant of bail.
17. We may hasten to add that we are not saying that no monetary
condition can be imposed for grant of bail. We say so as there
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are cases of offences against property or otherwise but that
cannot be a compensation to be deposited and disbursed as if that
grant has to take place as a condition of the person being
enlarged on bail.
18. Once we come to the aforesaid conclusion, the direction
contained in the impugned order for deposit of compensation of
Rs.2.00 lakh for the legal heirs of the deceased naturally cannot
be sustained and has to be logically set aside.
19. We also consider it appropriate not only to consider the aforesaid
aspects but also whether bail should be granted to the appellants,
and if so, on what terms and conditions. This is also recorded at
the time of issuance of notice.
20. In the aforesaid context, learned counsel for the appellants
contended that the specific allegations against the two appellants
as Accused Nos. 12 & 13 is that they had beaten the complainant
and the witnesses and not any of the deceased. It was a case of
free fight between two groups where each alleges the other to be
the aggressor. Not only that, the other accused Nos.3, 9, 10 & 6
had been granted bail without imposing the aforesaid condition.
In case of these accused, specific roles related to (a) blows being
given with wooden sticks and iron pipes with a shout to kill, (b)
blow with the stick to the complainant and witnesses and (c) the
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allegation of forwarding a Whatsapp recording to create
animosity between the two groups. Apart from these four
accused, it was urged that out of total 13 arrayed accused, 11 had
been released on bail by the High Court and/or Sessions Court.
The High Court had imposed stringent conditions including an
embargo from entering the geographical limits of Amreli and
regularly marking presence before the police station amongst
other conditions. Learned counsel for the appellants claims
parity with those orders and submits that the appellants may be
imposed with the same conditions even though their role was
much less than the other accused persons.
21. Learned counsel for the State, once again, cannot dispute the role
of the appellants vis-à-vis the role of the other accused, who had
been enlarged on bail on the aforesaid terms and conditions.
22. In view of the aforesaid, we consider it appropriate to impose the
same terms and conditions for grant of bail upon the appellants
and set aside condition (f) of the bail requiring the appellants to
deposit Rs.2.00 lakh each towards compensation to the victims
before the trial court and the consequential orders for
disbursement. This condition is instead to be substituted with
the condition that the appellants will not enter the geographical
limits of Amreli for a period of six (6) months except for
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marking presence before the concerned police station and to
attend the court proceedings.
23. The appeal is accordingly allowed in the aforesaid terms leaving
the parties to bear their own costs.
……………………………….…..J.
[SANJAY KISHAN KAUL]
……………………………………J.
[HEMANT GUPTA]
NEW DELHI,
July 07, 2021.
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