DHARMESH @ DHARMENDRA @ DHAMO JAGDISHBHAI @ JAGABHAI BHAGUBHAI RATADIA & ANR. versus THE STATE OF GUJARAT on 7 July 2021

1. An unfortunate incident took place on 10.11.2019, which isDalleged by the complainant to be caused by certain members of his casteproviding assistance to the police which resulted in a free fight wherethe appellants herein were also present. Two persons succumbed totheir injuries and an FIR was registered on 11.11.2019 with the AmreliPolice Station against 13 persons, being CR No.I-94 of 2019 underSections 302, 307, 324, 323, 506(2), 504, 143, 144, 147, 148, 149, 120BEand 34 of the IPC as well as Section 135(ii) of the Gujarat Police Act.In pursuance of the investigations chargesheet was filed in the Court. Acounter FIR was also filed on 11.11.2019, being I-95/2019 against thecomplainant and other witnesses under Sections 324, 323, 504, 506(2),143, 144, 147, 148 and 149 of the IPC as well as Section 135(ii) of theFGujarat Police Act.

2. The appellants before us were arrayed as Accused Nos.12 &13 and were arrested on 11.11.2019. Upon applying for bail, in terms ofthe impugned judgment dated 15.12.2020, bail was granted to them.However, they are aggrieved by the condition imposed on them for bail,Grequiring them to deposit Rs.2 lakh each as compensation to the victimsbefore the learned trial court within a period of three months.

3. The narrow compass of the arguments before us rests on theabsence of any provision in the Code of Criminal Procedure, 1908(hereinafter referred to as the ‘CrPC’) entitling the Court to imposeHsuch a condition for payment of compensation for grant of bail. It is the

submission of the learned counsel for the appellants that the High Courtimposed this condition for bail in view of the “amended provisions”relating to victim compensation without referring to any specific provision.

4. Learned counsel for the appellants took us through differentprovisions dealing with the aspect of compensation under the CrPC.

5. In respect of the aforesaid, the first provisions referred to wasSection 357, which reads as under:

“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, theCourt may, when passing judgment, order the whole or any partof the fine recoveredto be applied- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss orinjury caused by the offence, when compensation is, in the opinionof the Court, recoverable by such person in a Civil Court;

(c) when any person is convicted of any offence for having causedthe death of another person or of having abetted the commissionof such an offence, in paying compensation to the persons whoare, under the Fatal Accidents Act, 1855 (13 of 1855), entitled torecover damages from the person sentenced for the loss resultingto them from such death; (d) when any person is convicted of any offence which includestheft, criminal misappropriation, criminal breach of trust, orcheating, or of having dishonestly received or retained, or of havingvoluntarily assisted in disposing of, stolen property knowing orhaving reason to believe the same to be stolen, in compensatingany bona fide purchaser of such property for the loss of the sameif such property is restored to the possession of the person entitledthereto.

(2) If the fine is imposed in a case which is subject to appeal, nosuch payment shall be made before the period allowed forpresenting the appeal has elapsed, or, if an appeal be presented,before the decision of the appeal.

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(3) When a Court imposes a sentence, of which fine does notform a part, the Court may, when passing judgment, order theaccused person to pay, by way of compensation, such amount asmay be specified in the order to the person who has suffered anyloss or injury by reason of the act for which the accused personhas been so sentenced.

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(4) An order under this section may also be made by an AppellateCourt or by the High Court or Court of Session when exercisingits powers of revision.

(5) At the time of awarding compensation in any subsequent civilCsuit relating to the same matter, the Court shall take into accountany sum paid or recovered as compensation under this section.”

6. In the aforesaid context it was pointed out that the essentialrequirements under this section are: (a) imposition of fine or sentence;D(b) the aforesaid would naturally be at the time of passing of the judgment;(c) orders the whole or any part of the fine be recovered.

7. In the aforesaid scenario as per clause (d) of sub-section (1) ofSection 357 of the CrPC the said amount could be utilised for paymentof compensation for any loss or injury caused by the offence when suchEamount would be recoverable in a civil court.

8. This Court’s attention has also been invited to sub-section (3)of Section 357 CrPC, which again begins with “when the court imposesa sentence” and where a “fine does not form a part”, an accused maybe asked to pay compensation when passing the judgment.

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9. It is, thus, submitted that it is clear from a plain reading ofSection 357 that such compensation can only arise after the conclusionof trial albeit, of course, the same being a matter of discretion. Thus,without a full-fledged trial there cannot be a sentence and, thus, therecannot be any such compensation.

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10. The other provision referred to is Section 235(2) of the CrPC.Section 235 CrPC reads as under:

“235. Judgment of acquittal or conviction.

(1) After hearing arguments and points of law (if any), the Judgeshall give a judgment in the case.

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(2) If the accused is convicted, the Judge shall, unless he proceedsin accordance with the provisions of section 360, hear the accusedon the question of sentence, and then pass sentence on himaccording to law.”

11. It is submitted that a Judge has to hear an accused on thequestion of sentence, which would also support the plea as per the schemeof the Act that the sentence must precede grant of compensation.

12. It is in the aforesaid context that this Court had opined inPalaniappa Gounder v. State of Tamil Nadu &Ors.[1] that a courtmust take into account the nature of the crime, the injury suffered, thejustness of the claim, the capacity to pay and other relevant circumstancesin fixing the amount of fine or compensation. These aspects would beconsidered only after giving an opportunity to the person convicted tohear him out on these aspects and that would naturally be post theconviction. The grant of bail, it was contended, would only be as wesay, even if charges are framed, a prima facie view based on the principleof not unnecessarily keeping a person in custody.

13. Learned counsel also referred to the provisions of Section250(1) of the CrPC, which reads as under:

“250. Compensation for accusation without reasonablecause.

(1) If, in any case instituted upon complaint or upon informationgiven to a police officer or to a Magistrate, one or more persons isor are accused before a Magistrate of any offence triable by aMagistrate, and the Magistrate by whom the case is hearddischarges or acquits all or any of the accused, and is of opinionthat there was no reasonable ground for making the accusationagainst them or any of them, the Magistrate may, by his order ofdischarge or acquittal, if the person upon whose complaint orinformation the accusation was made is present, call upon himforthwith to show cause why he should not pay compensation tosuch accusedor to each or any of such accused when there are A

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more than one; or, if such person is not present, direct the issue ofa summons to him to appear and show cause as aforesaid.”

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14. The aforesaid provision comes also at the same stage albeitwhere an accused is acquitted to award compensation if the Court isBsatisfied that there was no reasonable ground for making the accusationagainst him. This is, of course, in a contra scenario.

15. One further aspect pointed out by learned counsel for theappellant is that the inadequacy of compensation is appealable underSection 372 of the CrPC, which would naturally imply that a conclusionChas been reached on imposition of sentence and/or fine. The conditionfor award of damages as a condition for bail would not be appealable.

16. We called upon learned counsel for the State to addresssubmissions in this regard but she was not able to portray a pictureagainst what has been placed before us by the learned counsel for theDappellants and, really cannot be so. In our view the objective is clear thatin cases of offences against body, compensation to the victim should bea methodology for redemption. Similarly, to prevent unnecessaryharassment, compensation has been provided where meaningless criminalproceedings had been started. Such a compensation can hardly beEdetermined at the stage of grant of bail.

17. We may hasten to add that we are not saying that no monetarycondition can be imposed for grant of bail. We say so as there are casesof offences against property or otherwise but that cannot be acompensation to be deposited and disbursed as if that grant has to takeFplace as a condition of the person being enlarged on bail.

18. Once we come to the aforesaid conclusion, the directioncontained in the impugned order for deposit of compensation of Rs.2lakh for the legal heirs of the deceased naturally cannot be sustainedand has to be logically set aside.

19. We also consider it appropriate not only to consider theaforesaid aspects but also whether bail should be granted to the appellants,and if so, on what terms and conditions. This is also recorded at the timeof issuance of notice.

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20. In the aforesaid context, learned counsel for the appellantsHcontended that the specific allegations against the two appellants as Accused Nos. 12 & 13 is that they had beaten the complainant and thewitnesses and not any of the deceased. It was a case of free fightbetween two groups where each alleges the other to be the aggressor.Not only that, the other accused Nos. 3, 9, 10 & 6 had been granted bailwithout imposing the aforesaid condition. In case of these accused,specific roles related to (a) blows being given with wooden sticks andiron pipes with a shout to kill, (b) blow with the stick to the complainantand witnesses and (c) the allegation of forwarding a Whatsapp recordingto create animosity between the two groups. Apart from these fouraccused, it was urged that out of total 13 arrayed accused, 11 had beenreleased on bail by the High Court and/or Sessions Court. The HighCourt had imposed stringent conditions including an embargo fromentering the geographical limits of Amreli and regularly marking presencebefore the police station amongst other conditions. Learned counsel forthe appellants claims parity with those orders and submits that theappellants may be imposed with the same conditions even though theirrole was much less than the other accused persons.

21. Learned counsel for the State, once again, cannot dispute therole of the appellants vis-à-vis the role of the other accused, who hadbeen enlarged on bail on the aforesaid terms and conditions.

22. In view of the aforesaid, we consider it appropriate to imposethe same terms and conditions for grant of bail upon the appellants andset aside condition (f) of the bail requiring the appellants to deposit Rs.2lakh each towards compensation to the victims before the trial court andthe consequential orders for disbursement. This condition is instead tobe substituted with the condition that the appellants will not enter thegeographical limits of Amreli for a period of six (6) months except formarking presence before the concerned police station and to attend thecourt proceedings.

23. The appeal is accordingly allowed in the aforesaid terms leavingthe parties to bear their own costs.

Devika Gujral

Appeal allowed.

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