This is the super judgment from Justice Altamas Kabir and Justice Cyriac Joseph wherein it was held that while awarding compensation under Section 357(3) Cr.P.C., the Court is within its jurisdiction to add a default sentence of imprisonment.
Category: Supreme Court of India Judgment or Order or Notification
R. Mohan Vs A.K Vijaya Kumar on 3 July, 2012
A wonderful judgment from Hon’ble Supreme Court which held that to make compensation paid to a complainant under 357(3) of CrPC, it is imperative that a Sentence In Default Of Payment Of Compensation is also applied in the order.
Vinay And Others Vs State Of Karnataka And Another
Apex Court has levied fine on assaulters and granted compensation to the Appellants.
K. Karunakaran Vs T. V. Eachara Warrier on 16 November, 1977
In this landmark case that got national coverage, it is held by Hon’ble Apex Court that
The fact that a prima facie case has been made out for laying a complaint does not mean that the charge has been established against a person beyond reasonable doubt. That will be thrashed out in the trial itself where the parties will have opportunity to produce evidence and controvert each other’s case exhaustively without any reservation. There may be often a constraint on the part of a person sought to be proceeded against under section 340 Cr.P.C. to come out with all materials in the preliminary enquiry. That constraint will not be there in a regular trial where he will have ample opportunity to defend himself and produce all materials to show that an offence under section 193 IPC has not been made out. That section contemplates that making of a false statement is not enough. It has to be made intentionally. The accused in a trial under section 193 will be able to place all circumstances bearing upon the ingredient of the intention attributed to him.
Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in
Hari Kishan & Anr Vs Sukhbir Singh & Ors on 25 August, 1988
Hon’ble Supreme Court in this landmark judgment dealt with three questions, namely
(i) whether the respondents are not guilty of the offence under s. 307/149 IPC;
(ii) whether the High Court was justified in extending the benefit of s. 360 Cr.P.C. and releasing the accused on probation of good conduct; and
(iii) whether the compensation awarded to Joginder could be legally sustained, and if so, what should be the proper compensation ?
Let’s concentrate on the question #3
Hon’ble Apex Court has answered the question #3 above in likewise
This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs. 2,500 as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to s. 357 Cr. P.C.
Section 357, leaving aside the unnecessary, provides :
“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;
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(3) When a Court imposes a sentence, of which fine does not 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 power 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.”
Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case. we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. 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 re-assure 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.
The payment by way of compensation must, however, be reasonable What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default.
Final verdict in regards to this question #3
The compensation awarded by the High Court, in our opinion, appears to be inadequate having regard to the nature of injury suffered by Joginder. We have ascertained the means of accused and their ability to pay further sum to the victim. We are told that they are not unwilling to bear the additional burden. Mr. Lalit learned counsel said that his clients are willing to pay any amount determined by this Court. It is indeed a good gesture on the part of counsel and his clients.
With due regard to all the facts and circumstances of the case, we consider that Rs.50,000 compensation to Joginder would meet the ends of justice. We direct the respondents to pay the balance within two months in equal proportions.
Harishankar Rastogi Vs Girdhari Sharma And Anr on 13 March, 1978
The Apex Court held as follows in regards to the right or lack thereof of a party to go as in-person in a case in a court. Legendary Judge Krishnaiyer, V.R. has allowed permission to a friend of a Plaintiff, who is not a advocate, to plead his case in court of law.
“1. A private person who is not an Advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may even after grant of permission, withdraw it half-way through if the representative proves himself reprehensible. The antecedents, the relationship, and reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.
2. The Advocates are entitled as of right to practice in this Court under S. 30(1) of the Advocates Act, 1961 subject to the reasonable restriction provided under s. 29 of that Act viz. that the only class of persons entitled to practice the profession of law shall be advocates. Even so, it is open to a party, who is unable for some reason or the other to present his case adequately, to seek the help of another person in his behalf. To negative such a plea may be denying justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of sophisticated nature…………….
3. A comprehensive programme of free legal services, is in a sense,a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then, parties should appear through advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot practice the profession of habitually representing parties in Court. If a non-advocate pecialises in practicing in Court, professionally he will be violating the text of the interdict in the Advocates Act, which the Court cannot allow him to do so. Nevertheless it is open to a person who is a party to a proceeding to get himself represented by a non-advocate in a particular instance or case. Practicing a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions ,or in a few cases. “
Citation: [1977 ACR SC 363], [1978 AIR SC 1019], [1978 SCC 2 165], [1978 SCC CRI 168], [1978 SCR 3 493], [1978 ALR 4 353], [1978 CAR 174], [1978 CRLR 161], [1978 MLJ CRI 1 640], [1978 UJ SC 301], [1978 CRLJ SC 778]
Other Sources:
https://indiankanoon.org/doc/1704613/
https://www.casemine.com/judgement/in/5609abd1e4b014971140d6a8
R.D. Saxena Vs Balram Prasad Sharma on 22 August, 2000
This is a wonderful judgment from Hon’ble Supreme Court of India on two aspects
(a) Has the advocate a lien for his fees on the litigation papers entrusted to him by his client?
(b) Does the client has freedom to choose and engage a advocate and change the advocate?
Thus, even after providing a right for an advocate to deduct the fees out of any money of the client remaining in his hand at the termination of the proceeding for which the advocate was engaged, it is important to notice that no lien is provided on the litigation files kept with him. In the conditions prevailing in India with lots of illiterate people among the litigant public it may not be advisable also to permit the counsel to retain the case bundle for the fees claimed by him. Any such lien if permitted would become susceptible to great abuses and exploitation.
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A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative.
In criminal cases, every person accused of an offence has the right to consult and be defended by a legal practitioner of his choice which is now made a fundamental right under Article 22(1) of the Constitution. The said right is absolute in itself and it does not depend on other laws. In this context reference can be made to the decision of this Court in State of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The words of his choice in Article 22(1) indicate that the right of the accused to change an advocate whom he once engaged in the same case, cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client.
If a party terminates the engagement of an advocate before the culmination of the proceedings that party must have the entire file with him to engage another advocate.
Citations : [2000 AIR SC 3049], [2001 ALLMR CRI SC 375], [2000 ALT SC 5 1], [2001 BLJR 1 174], [2000 CTC 3 757], [2001 GLH 3 624], [2000 JT SC 9 432], [2000 KLT SC 3 438], [2001 LW 1 284], [2001 MHLJ SC 1 23], [2000 MPLJ SC 613], [2000 PLJR 4 161], [2000 RD 91 692], [2000 SCALE 6 42], [2000 SCC 7 264], [2000 SUPP SCR 2 598], [2001 UJ 1 27], [2000 UPLBEC 3 2404], [2000 AIR SC 2912], [2000 CTR 163 32]
Other Sources :
https://indiankanoon.org/doc/151656/
https://www.casemine.com/judgement/in/5609ad8de4b0149711411a9d
https://www.indianemployees.com/judgments/details/r-d-saxena-vs-balram-prasad-sharma
http://www.briefcased.in/r-d-saxena-vs-balram-prasad-sharma/
https://www.legalauthority.in/judgement/r-d-saxena-vs-balram-prasad-sharma-22160
Karnataka High Court Judgments:
- NOC not required
- NOC required:
Other Judgements on this subject here.
Goa Antibiotics and Pharmaceuticals Ltd. Vs R.K. Chawla on 4 July, 2011
Hon’ble Apex Court in this judgment, had rejected the application of a Deputy Manager of a Company to appear and argue on behalf of the petitioner-Company.
A natural person can, of course, appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act.
Who can be Party in Person?
Section 32 of the Act, however, vests discretion in the court, authority or person to permit any person who is not enrolled as an advocate to appear before the court and argue a particular case. Section 32 of the Act is not the right of a person (other than an enrolled advocate) to appear and argue before the court but it is the discretion conferred by the Act on the court to permit any one to appear in a particular case even though he is not enrolled as an advocate.
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We make it clear that as regards artificial persons like a company registered under the Indian Companies Act, or a registered co-operative society, or a trust, neither the Director of the Company nor member of the Managing Committee or office bearer of the registered society or a trustee has a right to appear and argue on behalf of that entity, since that entity is distinct from its shareholders or office bearers or directors. However, it is the discretion of the court under Section 32 of the Act to permit such person to appear on behalf of that entity.
From Para 7,
7. There is a distinction between the right to appear on behalf of someone, which is only given to enrolled lawyers, and the discretion in the court to permit a non-lawyer to appear before it. Under Sections 29 and 33 of the Act only those persons have a right to appear and argue before the court who are enrolled as an advocate while under Section 32 of the Act, a power is vested in the court to permit, in a particular case, a person other than an advocate to appear before it and argue the case. A power-of-attorney holder cannot, unless he is an enrolled lawyer, appear in court on behalf of anyone, unless, permitted by the court under Section 32 of the Act, though of course he may sign sale deeds, agreements, etc. and do other acts on behalf of someone else, unless prohibited by law.
Citations : [2011 ACR SC 2 2269], [2011 JKJ SC 3 56], [2011 JT SC 7 559], [2011 KLT SC 3 498], [2011 RCR CIVIL 4 252], [2011 SCALE 7 413], [2011 SCC 15 449], [2011 SCR 7 846], [2014 SCC CIV 2 617], [2011 MWN CR 3 290], [2011 AIOL 469], [2011 RCR CIVIL SC 4 257], [2011 KLT 3 498], [2011 JT 7 559]
Other Sources :
https://indiankanoon.org/doc/170747848/
https://www.casemine.com/judgement/in/5609af02e4b0149711415575
Abhyudya Sanstha Vs Union Of India & Ors on 12 May, 2011
A batch of SLPs submitted by appellant educational institutions are dismissed by Hon’ble Supreme Court in this judgment, who were held not to have approached the Apex Court with clean hands.
Moti Lal Songara Vs Prem Prakash @ Pappu & Anr on 16 May, 2013
Hon’ble Apex court has clearly held that any order that got caused by suppression of information, any Court has an obligation to set aside the said order.
From Para 10,
…learned counsel for the appellant, has submitted that when the accused has not approached the court in clean hands and the High Court itself has observed that the order setting aside the order of cognisance was not justified, it should not have interfered with the order passed by the learned trial Judge declining to discharge the accused.
From Para 18,
The second limb of the submission is whether in the obtaining factual matrix, the order passed by the
High Court discharging the accused-respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Any one who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expression faisi, i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional court. It can be stated with certitude that the accused-respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum.
A victim of a crime has as much right to get justice from the court as an accused who enjoys the benefit of innocence till the allegations are proven against him. In the case at hand, when an order of quashment of summons has been obtained by suppression, this Court has an obligation to set aside the said order and restore the order framing charges and direct the trial to go on. And we so direct.
Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in
