PETITIONER:
PALANIAPPA GOUNDER
Vs.
RESPONDENT:
STATE OF TAMIL NADU & ORS.
DATE OF JUDGMENT04/03/1977
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
CITATION:
1977 AIR 1323 1977 SCR (3) 132
1977 SCC (2) 634
ACT
Compensation to persons injured out of amount rea-
lised by sentence of fine--Propriety of imposition of heavy
fine, while sentencing-Guidelines to the Courts for impos-
ing sentence of fine--Section 357 of the Code of Criminal
Procdure (Act 11 of 1974), 1973.
HEADNOTE
The appellant was convicted by the Sessions Judge.
Salem for an offence under s. 302 I.P.C. and was sentenced
to death. The High Court modified the sentence of death to
one of life imprisonment. However, exercising its powers
under s. 367(4) of the Criminal Procedure Code, 1973, the
High Court imposed a fine of Rs. 20,000/- under s. 357(1)(c)
of the Code. Special Leave was granted, by the court,
limiting it into the question of propriety of the fine im-
posed by the High Court.
Allowing the appeal in part and reducing the fine the Court,
HELD: (i) A saving provision which saves the inherent powers
of the court cannot over-ride an express provision contained
in the statute which saves that power. That did not
however affect the power of the High Court to deal with the
application merely because the application was wrongly
described as having been made under a wrong section. In the
instant case, the High Court correctly passed an order of
compensation not under 5. 482 but under s. 357(1)(c) of the
Code and the application filed in the High Court was main-
tainable at the instance of the son and daughter of the
deceased. [133 H, 135 F-G]
(ii) Under s. 302 LP.C. not only a sentence of imprisonment
for life but even a sentence of death can legitimately be
combined with a sentence of fine. For the offence of murder,
the court do have the power to impose the sentence of fine.
[136 B-C]
(iii) Legitimacy is not to he confused with propriety and
the fact that the court possesses a certain power does not
mean that it must exercise it. Though there is power to
combine a sentence of death with a sentence of fine that
power is to be sparingly exercised because the sentence of
death is an extreme penalty to impose and adding to that
grave penalty a sentence of fine is hardly calculated to
serve any social purpose. [136 C-E]
(iv) The first concern of the court, after recording an
order of conviction, ought to he to determine the proper
sentence to pass. The sentence must be proportionate to the
nature of the offence and the sentence, including the
sentence of fine, must not be unduly excessive. In fact,
the primary object of imposing a fine is not to ensure that
the offender will undergo the sentence in default of payment
of fine but to see that the fine is realised which can
happen only when the fine is not unduly excessive, having
regard to all the circumstances of the case, including the
means of the offender. [137 D-F]
(v) Since by s. 357(1)(c) of the code of 1973 and its pre-
cursor s. 545(1)(bb) of the code of 1898 compensation can
only come out of fine, it is always necessary to consider in
the first instance whether the sentence of fine is at all
called for, particularly when the offender is sentenced to
death or life imprisonment. If so, the fine must not be
execessive, having regard to all the circumstances of the
case like motivation of the offence, the pecuniary gain
likely to have been made by the offender by committing the
offence and his means to pay the fine. The High Court in
the instant case instead of applying its mind to these fac-
tors, considered only what compensation the heirs ought to
receive. There is no warrant for the assumption made by the
High Court as regards the retention of "abilities in fact"
or as regards the "extent of loss to the dependants." [137
A-C, 138 A-C]
133
State v. Pandurang Shinde, A.I.R. [1956] Born 711, 714
referred to.
Adamji Umar Dalai v. The State of Bombay, [1952] S.C.R. 172,
applied.
(vi) In view of the fact that the appellant was under
the sentence of death since its imposition by the Sessions
Court and its reduction to life imprisonment by the High
Court since a sentence of life imprisonment has been imposed
on the appellant that being the only other sentence permis-
sible under the law, the fine of Rs. 20,000 is unduly exces-
sive and a sum of Rs. would meet the ends of justice. [138
C-D]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 190
of 1976.
(Appeal by Special Leave from the Judgment and Order
dated 15-7-1975 of the Madras High Court in Criminal Appeal
No. 162/ 75.
Vineet Kumar and M. Mudgal, for the appellant.
A.V. Rangam and Miss A. Subhashni, for respondent No. 1
K. Jayaram and K. Ram Kurnar, for respondents Nos. 2-4.
The Judgment of the Court was delivered by
CHANDRACHUD, J. The appellant, Palaniappa Gounder, was
convicted by the learned Principal Sessions Judge, Salem,
under s. 302 of the Penal Code and was sentenced to death on
the charge that on August 23, 1974 he had committed the
murder of one Sengoda Goundar. Two appellant’s son and
daughter-in-law were convicted by the learned Judge for
abetting the murder and were sentenced to life imprisonment.
The three accused filed an appeal in the High Court of
Madras which upheld the appellant’s conviction under s. 392
but reduced the sentence from death to imprisonment of life.
However, while reducing the substantive sentence the High
Court imposed a fine of Rs. 20,000/- on the appellant and
directed that out of the fine, if realised, a sum of Rs,
15,000/- should be paid to the son and daughters of the
deceased under s. 357(1) (c) of the Criminal Procedure
Code, 2 of 1974. The other two accused were acquitted by the
High Court. We are not concerned in this appeal with the
legality of the appellant’s conviction or with the acquittal
of his daughter and son-in-law. The special leave granted
by this Court is limited to the question of the propriety of
the fine imposed by the High Court.
The reason and occasion for imposing the sentence of
fine was that an application was filed before the High Court
under s. 482 of the Criminal Procedure Code by a son and
two daughters of the decased praying that the appellant,
his son and daughter-in-law be asked to pay to them, as
heirs of the deceased, compensation in the stun of Rs.
40,000/- for the death of their father.
Section 482 of the Code under which the heirs of the
deceased filed the application for compensation corresponds
to s. 561-A of the Criminal Procedure Code of 1898. It
saves the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order under
the Code or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice. A provision
134
which saves the inherent powers of a Court cannot over-ride
any express provision contained in the statute which saves
that .power. This is put in another form by saying that if
there is an express provision in a statute governing a par-
ticUlar subject matter there is no scope for invoking or
exercising the inherent powers of the Court because the
Court ought to apply the provisions of the statute which arc
made advisedly to govern the particUlar subject matter.
From this it will be clear that the application made by the
heirs of the deceased for compensation could not have been
made under s. 482 since s. 357 expressly confers power on
the court to pass an order for payment of compensation in
the circumstances mentioned therein. That did not, howev-
er, affect the power of the High Court to deal with the
application because though the application was wrongly
described as having been made under s. 482 the High Court
could deal with it as if it were made under s. 357 of the
Code. That in fact is what the High Court proceeded to do,
for it passed the order of compensation not under s. 482 but
under s. 357(1)(c) of the Code.
Section 357 of the Code of Criminal Procedure, 2 of
1974, reads thus:
"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 derraying the expenses properly
incurred in the prosecution;
(b) in the payment to any person of compen-
sation 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 illdudes theft, criminal
misappropriation, criminal breach of trust,
or cheating, or of having dishonestly received
or retained, or of having voluntarily assist-
ed in disposing of, stolen property knowing
or having reasons to believe the same to be
stolen, in compensating any bona fide purchas-
er of such property for the loss of the same
if such property is restored to the possession
of the person entitled thereto.
135
(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 of an appeal be
presented, before the decision of the appeal.
(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 Sessions 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."
Clauses (a), (b) and (d) of s. 357(1) need not be con-
sidered firstly because the High Court has passed the order
of compensation trader cl. (c) and secondly because those
clauses have no application. No order having been passed by
the High Court for derraying the expenses incurred in the
prosecution cl. (a) does not come for consideration. Clause
(b) has no application to cases in which the heirs of a
person whose death has been caused apply for compensation
because that clause deals with the payment of compensation
to the very person to whom. any loss or injury has been
caused as a result of the offence committed against him or
his property and when compensation is recoverable by such
person in a Civil Court. Clause (d) deals with a different
Class of cases altogether and need not detain us.
Clause (c) of s. 357(1) under which the High Court has
passed the order for compensation enables the Court to
direct that the whole or any part of the fine recovered may
be applied in paying compensation to the persons who are
under the Fatal Accidents Act, 1855 entitled to recover
damages from the person sentenced for the loss resulting to
them from the death of the person whose heirs, as described
in the Act of 1855, they claim to be. Since under the Act
of 1855, persons who may be compensated are the wife, hus-
band, parent (including grand-parents) and child (including
grand-children and step-children), the application filed in
the High Court was maintainable at the instance of the son
and daughters of the deceased.
It cannot however be overlooked that the order for
compensation can be passed under s. 357(1)(c) only when "a
Court imposes a sentence of fine or a sentence (including a
sentence of death) of which fine forms a part". We are
concerned in this appeal to examine primarily the legality
and propriety of. the sentence of fine imposed by the
High Court because upon that would depend the efficacy and
indeed the very existence of the order for payment of com-
pensation to the heirs of the deceased. The compensa-
tion, as
10--240SC1/77
136
provided in the section, has to come out of the fine.
Therefore, if on a proper application of the principles of
sentencing, the fine imposed by the High Court is.found to
be excessive and has therefore to be reduced, the order
regarding the payment of compensation must suffer a corre-
sponding variation.
There can be no doubt that for the offence of murder
Courts have the power to impose a sentence of fine under s.
302 of the Penal Code.. That section provides that whoever
commits murder shah be punished with death, or imprisonment
for life, and "shall also be liable to fine". That is why
section. 357(1) of the Code speaks of "a sentence (includ-
ing a sentence of death) of which fine forms a part." That
is only an instance of the practical application of s. 302
under which not only a sentence of imprisonment for life
but even a sentence of death can legitimately be combined
with a sentence of fine.
But legitimacy is not to be confused with propriety and
the fact that the Court possesses a certain power does not
mean that it must always exercise it. Though, therefore,
the High Court had, the power to impose on the appellant a
sentence of fine alongwith the sentence of life imprisonment
the question still arises whether a sentence of fine of Rs.
20,000/- is justified in the circumstances of the case.
Economic offences are generally visited with heavy fines
because an offender who has enriched himself unconscionably
or unjustifiably by violating economic laws can be assumed
legitimately to possess the means to pay that fine. He must
disgorge his iII-gotten wealth. But quite different con-
siderations would, in the generality of cases, apply to
matters of the present kind. Thought there is power to
combine a sentence of death with a sentence of fine that
power in sparingly exercised because the sentence of death
is an extreme penalty to impose and adding to that grave
penalty a sentence of fine is hardly calculated to serve any
social purpose. In fact the common trend of sentencing is
that even a sentence of life imprisonment is seldom combined
with a heavy sentence of fine. We cannot, of course, go so
far as to express approval of the unqualified view taken in
some of the cases that a sentence of fine for an offence of
murder is wholly "inapposite" (See, for example, State v.
Pandurang Shinde(1), but before imposing the sentence of
fine, particularly a heavy fine, alongwith the sentence of
death or life imprisonment, one must pause to consider
whether the sentence of fine is at all called for and if so,
what is a proper or adequate fine to impose in the circum-
stances of the case. As observed by this Court in Adam Ii
Umar Dalal v. The State of Bombay, (2) determination of the
right measure of punishment is often a point of great diffi-
culty and no hard and fast rule can’ be laid down, it being
a matter of discretion which is to be guided by a variety of
considerations but the court must always bear in mind the
necessity of maintaining a proportion between the offence
and the penalty proposed for it. Speaking for the Court
Mahajan J. observed in that case that: "in imposing a fine
it is necessary to have as much regard to the pecuniary
circumstances of the accused persons as to the
(1) A.I.R. [1956] Bom. 711,714.
(2) [1952] S.C.R. 172.
137
character and magnitude of the offence, and where a substan-
tial term of imprisonment is inflicted, an excessive fine
should not accompany it except in exceptional cases" (p.
177). Though that case related to an economic offence,
this Court reduced the sentence of fine from Rs. 42,300/- to
Rs 4,000/- on the ground that due regard was not paid by the
lower Court to the principles governing the imposition of a
sentence of fine.
The High Court imposed in the instant case a fine of Rs.
20,000/on the ground that "the deceased was aged about 48
years and was actively supervising the cultivation of the
family lands and would have lived for another 15 to 20 years
with his abilities in tact, and the loss to the dependents,
viz., the son and daughters would be about Rs. 20,000/-".
Except for the bald and bare statements contained in the
petition for compensation filed by the heirs of the de-
ceased, there is no warrant for the assumption made by the
High Court as regards the retention of "abilities in tact"
or as regards the extent of "loss to the dependents".
It appears to us that the High Court first considered
what compensation ought to be awarded to the heirs of the
deceased and then imposed by way of fine an amount which was
higher than the compensation because the compensation has to
come out of the amount of fine. Apart from the fact that
even the compensation was not fixed on any reliable data,
the High Court, with respect, put the cart before the horse
in leaving the propriety of fine to depend upon the amount
of compensation. The first concern of the Court, after
recording an order of conviction, ought to be to determine
the proper sentence to pass. The sentence must be propor-
tionate to the nature of the offence and the sentence,
including the sentence of fine, must not be unduly exces-
sive. In fact, the primary object of imposing a fine
is not to ensure that the offender will undergo the sentence
in default of payment of fine but to see that the fine is
realized, which can happen only when the fine is not unduly
excessive having regard to all the circumstances of the
case, including the means of the offender.
Section 357(1) (c) of the new Code corresponds to
s.545(1) (bb) of the Code of 1898 which was introduced by s.
110 of Amending Act 26 of 1955. The statement of objects
and reasons of that Act shows that the Joint Committee took
the view that, in suitable cases, the person who causes
death should compensate the heirs and dependents of the
deceased for the loss resulting from the death. The Joint
Committee was in full agreement with the view that in a case
where death has resulted from homicide, the Court should
award compensation to the heirs of the deceased because that
would result "in settling the claim once for all by doing
away with the need for a further claim in a civil Court,
needless worry and expense to both sides of the party".
The views of the Joint Committee incorporated in the State-
ment of Objects and Reasons to the Amending Act of 1955 arc
undoubtedly entitled to consideration but those views only
reflect that there should reside in the criminal Court the
power in appropriate cases to pass an order of compensation
in favour of the heirs of the
138
deceased. It cannot, however, be overlooked that since by
s. 35:7 (1) (c) of the new Code and its precursor, s.
545(1)(bb) of the old Code, compensation can only come out
of fine, it is always necessary to consider in the first
instance whether the sentence of line is at all called for,
particularly when the offender is sentenced to death or life
imprisonment. If so, the fine must not be excessive,
having regard to all the circumstances of the case like
motivation of the offence, the pecuniary gain likely to have
been made by the offender by committing the offence and his
means to pay the fine.
The High Court, instead of applying its mind to these
factors, considered only what compensation the heirs of the
deceased ought to receive. And that question it decided on
inadequate data. in view Of the fact that the appellant
was under the sentence of death since its imposition by the
Sessions Court and its reduction to life imprisonment by the
High Court and since a sentence of life imprisonment has
been imposed on the appellant, that being the only other
sentence permissible under the law, the fine of Rs. 20,000
imposed by the High Court seems to us unduly excessive. In
the circumstances we reduce it to a sum of Rs. 3,000/- and
direct that the fine or so much of it as is recovered shall
be paid to the son and daughters of the deceased who had
flied the petition in that behalf in the High Court.
S.R. Appeal allowed in
part.
139