Chander Shekhar Diwan vs The State
2013 Latest Caselaw 5150 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 7th NOVEMBER, 2013
                              DECIDED ON : 11th NOVEMBER, 2013

+                        CRL.A. 440/2003

       CHANDER SHEKHAR DIWAN                             ..... Appellant
                         Through :    Dr.S.P.Sharma, Advocate with
                                      Ms.Amita Babbar, Advocate.

                         VERSUS

       THE STATE                                      ..... Respondent
                         Through :    Mr.M.N.Dudeja, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Chander Shekhar Diwan (the appellant), Bhoop Singh and

Saroj were sent for trial in case FIR No. 439/2001 PS Ambedkar Nagar

for committing offences under Sections 308/34 IPC. The Trial Court by a

judgment dated 27.05.2003 in Sessions Case No. 57/2002, however, held

all of them guilty for committing offences under Sections 323/34 IPC. By

an order dated 02.06.2003, they were released on probation subject to

payment of compensation of ` 20,000/- in all. It is apt to note that State

did not challenge the acquittal under Section 308 IPC. It appears that

Bhoop Singh and Saroj have not opted to file appeal. It further reveals that

the compensation amount was paid in compliance of the order by the

convicts and was released to the victim - Satya Devi.

2. During the course of arguments, counsel for the appellant

assailed only the sentence order as it did not prescribe the period of

probation. Counsel further challenged jurisdiction of the Trial Court to

order payment of compensation in view of 'Ankush Shivaji Gaikwad vs.

State of Maharashtra' in Crl.A. No. 689/2013.

3. I have heard the learned counsel for the parties and have

examined the record. Since the appellant has not opted to challenge

findings on conviction under Sections 323/34 IPC in the presence of

overwhelming evidence, the conviction under Section 323/34 IPC is

affirmed. It is true that the sentence order does not reflect the duration for

which the convicts were released on probation. It also does not reveal the

quantum of surety bonds to be executed by the convicts. It seems that due

to inadvertence, the period and the amount of bonds could not be

incorporated in the sentence order dated 02.06.2003. No clarification was

sought at the time of execution of the required bonds by the convicts. Trial

Court record reveals that the appellant - Chander Shekhar Diwan

executed the required bonds to keep peace and be of good behaviour for

one year in the sum of ` 10,000/-. This bond, executed on 02.06.2003,

was accepted by the Trial Court. Apparently, the intention of the Court

while releasing the appellant on probation was that he was to execute the

bond in the sum of ` 10,000/- for a period of one year. The appellant filed

application dated 05.06.2003 to deposit the bankers cheque No. 910963

dated 04.06.2003 for a sum of ` 10,000/- in the name of victim - Satya

Devi in compliance of the order dated 02.06.2003. The said application

also contained averment that the appellant was ordered to be released on

probation for a period of one year on his furnishing bonds in the sum of `

10,000/-. Beside this, Section 360 of Criminal Procedure Code puts an

outer limit whereby the period of such bond cannot to exceed three years.

In the instant case, the said period is already over.

4. Under Section 357(3) Cr.P.C., the Courts have ample powers

to award compensation to the victim. In a recent judgment 'Ankush Shivaji

Gaikwad vs. State of Maharashtra', in Crl.A. No. 689/2013 decided on

03.05.2013, the Supreme Court observed :

"54. This Court has through a line of cases beginning with Hari Singh's case (supra) held that the power to award compensation Under Section 357 is not ancillary to other sentences but in addition thereto. It would necessarily follow that the Court has a duty to apply its mind to the question of awarding compensation Under Section 357 too........

57. Section 357 Code of Criminal Procedure confers a duty on the Court to apply its mind to the question of compensation in every criminal case. It necessarily follows that the Court must disclose that it has applied its mind to this question in every criminal case......

62. To sum up: While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order Under Section 357 Code of Criminal Procedure would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family."

5. In the instant case, the convicts including the appellant had

prayed to release on probation. The Court instead of awarding substantive

sentence to the convicts for committing offences under Sections 323/34

IPC considered their prayer and granted them probation. I find no

illegality or irregularity in the sentence order whereby reasonable

compensation was ordered to be paid to the victim while releasing the

convicts on probation.

6. The appeal is unmerited and is dismissed. Trial Court record

be sent back forthwith.

(S.P.GARG) JUDGE NOVEMBER 11, 2013/tr