TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 1967
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....n to the tune of Rs. 4 lakhs within one month in default to suffer simple imprisonment for two years. Initially, the petitioner preferred a revision petition before the Additional Sessions Judge, Fast Track Court, Calcutta and thereafter made an application for converting such revision into an appeal on the premise that the imprisonment for two years prescribed in default of payment of compensation is appealable under Section 374(3) read with Section 376 of the Code of Criminal Procedure. Such prayer being turned down the petitioner is before this Court. 3. Learned advocate appearing on behalf of the petitioner has strenuously relied upon Mr. Kumar J. Sujan Vs. State of Maharashtra, 2013 (2) DCR 625 in support of his contention. On the other hand, learned lawyer for the opposite party no.2 submitted that Mr. Kumar J. Sujan (supra) does not lay down correct law as any direction for imprisonment in default of payment of fine or compensation cannot render the sentence appealable in view of proviso to Section 376 of the Code of Criminal Procedure. He strenuously argued that right of appeal is a creature of statute and cannot be inferred until and unless expressly provided therein....
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....h Vs. Sukhbir Singh, (1988) 4 SCC 551 (Para-11) and Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770] It has also been held in Mangilal Vs. State of Madhya Pradesh, (2004) 2 SCC 447 that an accused must be given an opportunity of hearing before an order of compensation is passed against him. Inadequacy of quantum of compensation has been made appealable at the behest of victim in terms of proviso to Section 372 Cr.P.C. 9. In this backdrop, let me examine whether a direction to undergo imprisonment in default to pay compensation in terms of Section 64 I.P.C. shall render the order of compensation appealable or not. 10. For a better appreciation of the aforesaid issue, sections 357, 372, 374, 376 Cr.P.C. and section 64 of I.P.C. are set out hereunder:- "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 off....
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....008.---Clause 29 amends section 372 of the Code relating to appeals from judgment or order of a Criminal Court. It gives to the victim the right to prefer an appeal against any adverse order passed by the trial Court. (Notes on Clauses). "374. Appeals from convictions.--(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years 2 has been passed against him or against any other person convicted at the same trial], may appeal to the High Court. (3) Save as otherwise provided in sub- section (2), any person,- (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or (b) sentenced under section 325, or (c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session." "376. No appeal in petty cases. Notwithstanding anything....
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....ion 376 thereof. It is also laid down in the proviso to section 376 Cr.P.C. that sentence of fine not exceeding the minimum limit shall not become appealable merely on the score imprisonment is prescribed in default of payment of such fine. Compensation per se is not appealable at the behest of the convict under the aforesaid provision unless it forms a part of the fine under Section 357(1) Cr.P.C. and is appealable as such. However, inadequacy of compensation has been made appealable at the behest of the victim under the proviso to Section 372 Cr.P.C. 12. In view of the aforesaid statutory scheme, it has been argued relying on Durga Shankar Mehta Vs. Raghuraj Singh & Ors. AIR 1954 S.C. 520, Competition Commission of India Vs. Steel Authority of India Ltd. (2010) 10 SCC 744, Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement & Anr. (2010) 4 SCC 722, State of Haryana Vs. Maruti Udyog Ltd. & Ors. (2000) 7 SCC 348 and National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi & Ors. (2002) 7 SCC 456 that the right of appeal being a creature of statute, there cannot be any inherent right of appeal against an order of compensation unless it is expressly provided ....
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....of payment of such compensation the Court shall have the power to impose imprisonment upon the defaulter. Such purposive interpretation, therefore, creates a legal fiction and treats 'compensation' as 'fine' for the purposes of Section 64 of I.P.C. and thereby prescribes a procedure established by law to deprive a defaulter of his liberty in case of failure to pay such compensation. It is trite law that a procedure established by law depriving liberty of an individual must be just, reasonable and fair so as to survive the test of constitutionality on the touchstone of Article 14 and 21 of the Constitution. Judged from this angle, any interpretative exercise which deems an 'award of compensation' as 'sentence of fine' for the purposes of Section 64 of I.P.C. and empowers the Court to impose imprisonment in default of payment of such compensation must also bring within the sweep of such legal fiction the appellate remedy available under Section 374 read with Section 376 of the Code of Criminal Procedure against the 'sentence of fine' and hold that 'compensation' in default of payment of which imprisonment may be imposed shall be deemed to be a 'sentence of fine' for the purposes of s....