Laxmi Kant Dixit vs State And Anr.
1987 Latest Caselaw 381 Del

JUDGMENT

M.K. Chawla, J.

(1) Following a tip off the officers of the Customs and Central Excise Collectorate, Delhi, kept a vigil on premises "No. 510, Kucha Kabul Autar.Chandni Chowk, Delhi. On 19th January, 1970, at about 8.30 p.m. accused Laxmi Kant Dixit and Shankar Sahai were seen going inside the said premises. After some time they came out and proceeded towards Delhi Railway Station. Before they could enter the Railway Platform, they were apprehended by the customs officers. Their baggage and persons were searched in the presence of two independent witnesses. From their search 50 rectangular bars of gold i.e. 25 from each of them, weighing 10 tolas each, bearing foreign markings were recovered. The value of the recovered gold was assessed at Rs. 11- lakh. Some incriminating documents were also taken into possession. The accused could not produce the documentary evidence of owning or possessing the said gold. It was seized under Section 110 of the Customs Act.

(2) The statements of the accused were recorded and in pursuance thereof their premises were searched. After completing the investigation a complaint under Section 135(b) of the Customs Act read with Section 85(ii),(iii) and (iv) of the Gold Control Act, 1968 was filed against both the accused.

(3) Both of them denied that the recovery of the gold was effected in the manner alleged by the prosecution agency. After a full length trial the learned Additional Chief Metropolitan Magistrate, New Delhi believed the prosecution version and held both of them guilty of an offence under Section 135(l)(b) of the Customs Act and Section 85(ii) of the Gold Control Act.

(4) Keeping in view the fact that accused Laxmi Kant Dixit was below the age of 18 years, be was given the benefit of probation and was accordingly directed to furnish a personal bond and two sureties in the sum of Rs. 1/lakh each for keeping good behavior, character and conduct for a period of three years, failing which to undergo R 1. for three years. He was also imposed cost/ compensation in the sum of Rs. l.00 lakh to be recovered in accordance with law.

(5) Accused Shankar Sahai was sentenced to undergo S.I. for three years for each of the two offences. The sentences, however, were ordered to run concurrently. He was also sentenced to pay a fine of Rs. l.00 lakh under Section 85 of the Gold Control Act, in default of payment of fine to further undergo S.I. for 9 months.

(6) Aggrieved from the said order of conviction and sentence, both of them preferred to file an appeal before the Sessions Judge. At the time of the admission of the appeal, Smt. Santosh Duggal, the then Additional Sessions Judge, New Delhi, stayed the operation of the impugned order and directed the appellant to furnish personal bond in the sum of Rs. 10,000.00 with one surety in the like amount to the satisfaction of the Additional Chief Metropolitan Magistrate, New Delhi. The order was duly complied with.

(7) The appeal came up for hearing before Shri S.C. Jain, Additional Sessional Judge, New Delhi on 7.10.1986. He dismissed the appeal ex parte by holding that the accused persons on one pretext or the other have been taking dates after dates, making these two appeals very very old one. He further observed that both accused also absconded during the pendency of the appeals and even now when the final opportunity was granted for arguments, neither the appellant made any appearance nor their counsel appeared. After hearing the learned counsel for the Department of Customs, both the appeals were dismissed. It is against this order the present revision petition has been preferred by Laxmi Kant Dixit only.

(8) The first and foremost submission of learned counsel for the petitioner is that there is no provision in the Code of Criminal Procedure to impose the cost/compensation on the accused persons, even if found guilty of an offence charged with. On merits, his submission is that the present petitioner during the pendency of the appeal has throughout been attending the Court of the Additional Sessions Judge, New Delhi except for one or two exemptions for reasons of illness. According to him, the observation of the learned Additional Sessions Judge is quite contrary to the record. None of these arguments are to the liking of the learned counsel for the Customs Department whose contention is that both the accused alternatively have been instrumental in delaying the disposal of the appeal as one or the other was not present on each and every date of hearing. The order of the Additional Chief Metropolitan Magistrate and that of Additional Sessions Judge is legal, inasmuch as a fine of Rs. l,00,000.00 was imposed though it has wrongly been mentioned as cost/ compensation.

(9) After giving my careful consideration to the arguments advanced to the rival contentions of the parties, I am of the opinion that there is much substance in the submission of the learned counsel for the petitioner. I have myself carefully perused the order sheets of the appellate court. Since the filing of the appeal, there were 40 dates of hearing. On almost all the dates the present petitioner's presence is recorded, except for one date when an application for exemption was duly allowed. All the adjournments were because of the non-appearance of the co-accused who is quite an elderly person, unable to attend the court because of his serious illness. That may be so but the fact remains that for the default of his co-accused the present petitioner cannot be penalised. He is a resident of Kanpur. Inspite of that he made it a point to attend the court on all the dates of hearing of the appeal. The observation of the learned Additional Sessions Judge that both the accused on one pretext or the other have delayed the disposal of the appeal or have absconded it quite contrary to the record.

(10) This aspect can also be looked into from another angle. On 4.6.1986 when the appeal was fixed for hearing the presence of the petitioner is recorded. On that date the Presiding Officer was on leave. The case was adjourned to 6.6.1986. The petitioner appeared and the appeal was adjourned to 21.8.1986. The submission of learned counsel for the petitioner is that by mistake the petitioner understood and noted down the next date as 21.10.1986, and he accordingly advised his counsel. His counsel also made a note of the same date in his diary. A photostat copy of the relevant page of the diary has been enclosed with this revision petition which supports the contention. In the normal course the appellant would not appear on 21.8.1986 as he had noted down the date as 21.10.1986. On 21.8.1986 the learned court directed the issuance of the non-bailable warrants of the petitioner and adjourned the case to 7.10 1976, the non-bailable warrants could not be served and for that reason the petitioner again absented himself as he had no knowledge of the hearing of the appeal. On that day, the appeal was dismissed ex parte. There is no reason to disbelieve the appellant and his counsel on this aspect. This by itself is a good and sufficient ground for setting aside the impugned order.

(11) On the legal aspect also the petitioner has a case. Learned counsel for the parties have not been able to point out any provision of the Code of Criminal Procedure under which the cost/compensation can be imposed upon the accused. Learned counsel for the respondent pointed out that under Section 357 of the Code of Criminal Procedure the accused can be ordered to pay compensation besides the imposition of fine. This arguments prima-facie has no substance, if one barely peruse sub-section (3) of Section 357 of the Code of Criminal Procedure which lays down "where a court imposes sentence, of which fine does not form a part, the court may, when passing judgment, order the accused persons 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 sentenced."

(12) In order to claim compensation under this clause, it is necessary to show :-

1.That the person has "suffered" loss or injury; 2. That such loss or injury has been caused by the offence; and 3. That such person can recover "compensation" in a civil court.

The words "any loss" means a loss that can be compensated in money including some substantial detriment from a worldly point of view.

(13) SUB-SECTION (3) of Section 357 is a new provision and provides for payment of compensation by the accused to a person who has suffered any loss or injury even in a case where fine does not form part of the sentence imposed by a court. The compensation is payable for any loss or injury whether physical or pecuniary and the court shall have due regard to the nature of injury the manner of inflicting the same, the capacity of the accused to pay and other relevant factors.

(14) The bare reading of this provision goes to show that it does not apply to the case in hand. The imposition of cost/compensation by the court below is thus not legal or justified.

(15) As a result of the aforesaid discussion, I hereby accept the revision petition and set aside the order of the Addl. Sessions Judge, dated 7th October, 1986.