Crl.Rev.P./9/2022 of ANANTA DEB Vs STATE OF MEGHALAYA on 21 October 2024

J U D G M E N T

1. The learned Special Judge (POCSO), Ri-Bhoi District,Nongpoh vide judgment dated 27.07.2021 and the related sentence dated30.07.2021 passed in Special POCSO Case No. 23 of 2015 hasconvicted the petitioner of the offence under Section 354 IPC read withSection 8 of the POCSO Act, for which he was directed to undergoimprisonment of 3 years under Section 8, POCSO Act and 1 yearrespectively as punishment under Section 354 IPC. A fine of ₹1,50,000/- (rupees one lakh, fifty thousand) only, for the offence underSection 8 and another 50,000/- (rupees fifty thousand) only, for the₹offence under Section 354 was also simultaneously imposed, default inpayment of such fine would entail further imprisonment of 1 yearrespectively.

2. Being thus aggrieved by such order of conviction and sentenceimposed, the petitioner has now approached this Court with thisapplication under Section 397 of the Code of Criminal Procedure forrevision of the said order impugned herein.

3. Brief facts of the case is that on 14.11.2014, an FIR was lodgedat the Khanapara Police Station, Ri-Bhoi District with a complaint thatthe petitioner has attempted to rape the minor daughter of the saidcomplainant, following which the FIR was registered as Khanapara P.S.Case No. 47(11)2014 under Section 354 IPC and Section 8, POCSO Act.

4. The allegation is that on 12.11.2014, at about 9.30 pm when theminor daughter of the complainant went to the bathroom, the petitioner tried to rape her, on being confronted, he refused to say anything leadingto the complainant to beat him with a stick. Thereafter, on the villageHeadman and some Women Organisation being informed, the petitionerwas handed over to the police where he was subsequently arrested inconnection with the said incident.

5. Investigation followed by a final report filed by theInvestigating Officer who has found prima facie evidence wellestablished against the petitioner led him to be put on trial for the saidoffence under Section 8 POCSO Act and Section 354 IPC respectively.The trial before the learned Special Judge (POCSO) proceeded and onconclusion of the same, the said impugned judgment and sentence waspassed. Hence this petition.

6. Heard Mr. S. Thapa, learned counsel for the petitioner who hassubmitted that initially, the petitioner has come before this Court seekingto overturn the said impugned order of conviction, however, in course ofthese proceedings, the substantive period of imprisonment of 3 yearshave already being undergone by the petitioner and at present, since thepetitioner is not able to pay the fine imposed, therefore, prayer is nowmade only with regard to the issue of waiver or reduction of the amountof fine imposed. The State respondent not objecting to the revised prayermade, the hearing in this matter will accordingly be confined only onthis issue.

7. It is the submission of the learned counsel that the learned trialcourt while imposing the fine along with the sentence of conviction hasfailed to consider the nature of work of the petitioner who at the relevantperiod was working as a muster roll under the Forest department with a

monthly income of about 30,000/- (rupees thirty thousand) only or so₹and as of now, since his employment was terminated, he is not earninganything at all. His financial capacity not being sound, the trial courtought to strike a balance between the capacity of the petitioner/convictto pay the fine which is excessive and the victim’s rehabilitation.

8. Without giving any reasons as to why such an excessiveamount of fine was imposed upon the petitioner ignoring his financialcapacity, but rather seeking to compensate the survivor for the injurysustained to her psyche, the learned trial court has committed an error ofjudgment which requires to be rectified by this Court in this petitionherein, submits the learned counsel.

9. In this regard, the learned counsel has referred to the provisionof Section 63 of the Indian Penal Code which provision stipulates that ifthe amount of fine to be paid is not specifically mentioned, then theamount of fine which the offender is liable to pay is unlimited, however,the same should not be excessive. In this regard, the case of Shantilal v.State of M.P., (2007) 11 SCC 243, para 32, 34 and 39 as well as the caseof Sharad Hiru Kolambe v. State of Maharashtra & Ors. (2018) 18 SCC718 para 17 & 18 was cited to buttress this contention.

10. The learned counsel has submitted that the observations andwhat was held in the said authorities relied upon are well applicable tothe case of the petitioner herein, considering the fact that the impositionof fine is beyond his financial capacity and now that he has alreadyserved the substantial part of the sentence, the quantum of fine may bereduced since the amount of fine related to the offence has not beenfixed as in some other statutes, for example, fine under the NDPS Act which has a fixed amount.

11. Mr. K.P. Bhattacharjee, learned GA while opposing thecontention and submission of the learned counsel for the petitioner onbehalf of the State respondent has contended that the authorities reliedupon by the petitioner are not relevant to the case of the petitioner sincethe same were passed in an appellate jurisdiction, while the petitionerherein has come before this Court on the strength of a revision petition.

12. Leading this Court to the provision of Section 397 Cr.P.C. thelearned GA has submitted that the jurisdiction of this Court is confinedto only examine the impugned order as to whether it was passed withoutjurisdiction or is illegal or improper. However, on perusal of theimpugned order, it can be seen that there is no legal infirmity orillegality notice in the same.

13. The learned GA has further submitted that the learned trialcourt has shown due regard to all factors involved in the case of theparties and in the order of sentence, consideration has been given to theage of the accused/petitioner, who was 40-45 years at that time, the ageof the survivor who was 12 years old at the relevant period, the nature ofthe crime, the compensation for the injury sustained to her psyche forwhich the petitioner is liable to pay has been duly taken note of whileawarding such compensation and therefore, there is no question thatsuch amount of fine which is actually the award of compensation tothe survivor is not justified. In support of his contention, the learned GAhas cited the case of Rajendra Bhagwanji Umraniya v. State of Gujarat,2024 SCC Online SC 927, para 18, 19, 22, 23 & 24.

14. Again, the learned GA has submitted that the case against thepetitioner involves sexual assault against a minor, any reduction of thesentence imposed could be assumed to be misplaced sympathy, which,under the facts and circumstances of the case cannot be extended to thepetitioner/accused when the learned trial court had taken everything intoconsideration and after careful appreciation of the available evidence,had meted out the sentence as such. In this context, the case of State ofPunjab v. Dil Bahadur, 2023 SCC Online SC 348, para 14 and 17 iscited in support thereof.

15. This Court is well aware of the fact that the consideration atthis point of time would revolve only on the issue of the quantum of fineimposed by the learned trial court while awarding the sentence ofconviction to the petitioner/accused. It is the contention of the learnedcounsel for the petitioner that the learned trial court had imposed asentence of 3(three) years, under Section 8 of the POCSO Act, whereinthe maximum sentence that could be awarded is 5(five) years and asentence of 1(one) year under Section 354 IPC. Therefore, even if thisCourt is inclined to reduce the term of sentence imposed, it cannot bedone so statutorily. The reliance of the learned GA in the case of DilBahadur (supra) may not be relevant to the facts of the present casewherein as observed, the term of imprisonment of the petitioner hasbeen reduced to the minimum. Whereas, the Hon’ble Supreme Courttaking the said case of Dil Bahadur speaks about reduction of sentenceor account of misplaced or undue sympathy.

16. The learned GA has also impressed upon this Court that the fineimposed upon the petitioner/accused apart from the same being mandatory as per the relevant sections of law are concerned, that is,Section 8 of the POCSO Act and Section 354 IPC where not only theterm of imprisonment has been prescribed but that an additional penaltyby way of payment of fine has also been stipulated. The learned trialcourt had made it clear that the payment of fine is in the form ofcompensation to be awarded to the survivor and as such, there is noquestion of reduction of the same.

17. In this connection, the reference made to the case of RajendraBhagwanji Umraniya (supra) cited by the learned GA wherein the ApexCourt has discussed at length the concept of victim compensation vis-à-vis the provision the Section 357 of the Criminal Procedure Code isworth noting, the relevant portion being reproduced herein below as:

“18. Section 357 of the Criminal Procedure Code, 1973 readsthus:

“357. Order to pay compensation.–(1) When a Courtimposes a sentence of fine or a sentence (including a sentenceof death) of which fine forms a part, the Court may, whenpassing judgment, order the whole or any part of the finerecovered to be applied–

(a) in defraying the expenses properly incurred in theprosecution:prosecution:

(b) in the payment to any person of compensation forany loss or injury caused by the offence, whencompensation is, in the opinion of the Court,recoverable by such person in a civil court;any loss or injury caused by the offence, whencompensation is, in the opinion of the Court,recoverable by such person in a civil court;

(c) when any person is convicted of any offence forhaving caused the death of another person or ofhaving abetted the commission of such anoffence, in paying compensation to the personswho are, under the Fatal Accidents Act, 1855 (13of 1855), entitled to recover damages from theperson sentenced for the loss resulting to themhaving caused the death of another person or ofhaving abetted the commission of such anoffence, in paying compensation to the personswho are, under the Fatal Accidents Act, 1855 (13of 1855), entitled to recover damages from theperson sentenced for the loss resulting to them from such death;

(d) when any person is convicted of any offencewhich includes theft, criminal misappropriation,criminal breach of trust, or cheating, or of havingdishonestly received or retained, or of knowing orof having voluntarily assisted in disposing of,stolen property knowing or having reason tobelieve the same to be stolen, in compensatingany bona fide purchaser of such property for theloss of the same if such property is restored to thepossession of the person entitled thereto.which includes theft, criminal misappropriation,criminal breach of trust, or cheating, or of havingdishonestly received or retained, or of knowing orof having voluntarily assisted in disposing of,stolen property knowing or having reason tobelieve the same to be stolen, in compensatingany bona fide purchaser of such property for theloss of the same if such property is restored to thepossession of the person entitled thereto.

(2) If the fine is imposed in a case which is subject toappeal, no such payment shall be made before the periodallowed for presenting the appeal has elapsed, or, if anappeal be presented, before the decision of the appeal.

(3) When a Court imposes a sentence, of which fine doesnot 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 personwho has suffered any loss or injury by reason of the act forwhich the accused person has been so sentenced.

(4) An order under this section may also be made by anAppellate Court or by the High Court of Session whenexercising its powers of revision.

(5) At the time of awarding compensation in anysubsequent civil suit relating to the same matter, the Courtshall take into account any sum paid or recovered ascompensation under this section.”

19. Way back in 1981, this Court speaking through KrishnaIyer, J. in Maru Ram v. Union of India [(1981) 1 SCC 107],held that while social responsibility of the criminal to restorethe loss or heal the injury is part of the punitive exercise; thelength of the prison term is no reparation to the crippled orbereaved and is futility compounded with cruelty. Section 357provides power to award compensation to victims of theoffence out of the sentence of fine imposed on accused. Timeand again this Court has reiterated that it is an importantprovision but courts seldom invoke the same. It empowers thecourt to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order theaccused to pay some amount by way of compensation to victimwho has suffered by the action of accused.

22. The idea of victim compensation is based on the theory ofvictimology which recognizes the harsh reality that victims areunfortunately the forgotten people in the criminal justicedelivery system. Victims are the worst sufferers. Victims’family is ruined particularly in cases of death and grievousbodily injuries. This is apart from the factors like loss ofreputation, humiliation, etc. Theory of Victimology seeks toredress the same and underscores the importance for criminaljustice administration system to take into consideration theeffect of the offence on the victim’s family even though humanlife cannot be restored but then monetary compensation will atleast provide some solace.

23. The provision of Section 357 recognizes the aforesaid andis victim centric in nature. It has nothing to do with the convictor the sentence passed. The spotlight is on the victim only. Theobject of victim compensation is to rehabilitate those who havesuffered any loss or injury by the offence which has beencommitted. Payment of victim compensation cannot be aconsideration or a ground for reducing the sentence imposedupon the accused as victim compensation is not a punitivemeasure and only restitutory in nature and thus, has no bearingwith the sentence that has been passed which is punitive innature.

24. The words “any loss or injury” used in Section 357 of theCrPC clearly indicates that the sole factor for deciding thecompensation to be paid is the victim’s loss or injury as a resultof the offence, and has nothing to do with the sentence that hasbeen passed. Section 357 of CrPC is intended to reassure thevictim that he/she is not forgotten in the criminal justicesystem. It is a constructive approach to crimes based on thepremise that mere punishment of the offender may not givesolace to the victim or its family.”

18. This Court is in agreement with the proposition of law as foundin the said authorities cited by the learned GA and is also aware of thefact that the direction of the court for a convict to undergo a certain period of imprisonment cannot be connected to the amount of fineimposed along with it inasmuch as the aforesaid provision of Section 8POCSO Act and 354 IPC (supra) provides for imposition of fineindependent of the period of imprisonment when the words “liable tofine” and “or with fine” respectively have been used. The onlyconnection to the imposition of fine and the period of imprisonment thatcan be found in the sentence awarded is that the trial court has directedthat in default of payment of fine the petitioner is to undergo furtherimprisonment of another 1(one) year.

19. This direction for payment of fine, in default thereof to furtherundergo imprisonment of another year would be the only aspect to beconsidered by this Court at this juncture.

20. The learned counsel for the petitioner has referred to theprovision of Section 63 IPC to say that though there is no limit to theamount of fine to be imposed as far as the case of the petitioner isconcerned, however, the same should not be excessive, keeping in mindthe financial capability and capacity of the petitioner who would beunable to pay the amount of fine on account of him being unemployed.The case of Shantilal (supra), para 32 and 39 has been relied upon by thepetitioner in the context, the same being hereby reproduced as follows:

“32. A general principle of law reflected in Sections 63 to 70IPC is that an amount of fine should not be harsh or excessive.The makers of IPC were conscious of this problem. The authorsof the Code, therefore, observed:

"Death, imprisonment, transportation, banishment,solitude, compelled labour, are not, indeed, equallydisagreeable to all men. But they are so disagreeable to allmen that the legislature, in assigning these punishments tooffences, may safely neglect the differences produced by

temper and situation. With fine, the case is different. Inimposing a fine, it is always necessary to have as muchregard to the pecuniary circumstances of the offender as tothe character and magnitude of the offence. The muletwhich is ruinous to a labourer is easily borne by atradesman, and is absolutely unfelt by a rich zamindar. It isimpossible to fix any limit to the amount of a fine whichwill not either be so high as to be ruinous to the poor, or solow as to be no object of terror to the rich. There are manymillions in India who would be utterly unable to pay a fineof fifty rupees; there are hundreds of thousands fromwhom such a fine might be levied, but whom it wouldreduce to extreme distress; there are thousands to whom itwould give very little uneasiness; there are hundreds towhom it would be a matter of perfect indifference, andwho would not cross a room to avoid it. The number of thepoor in every country exceeds in a very great ratio thenumber of the rich. The number of poor criminals exceedsthe number of rich criminals in a still greater ratio. And tothe poor criminal it is a matter of absolute indifferencewhether the fine to which he is liable to be limited or not,unless it be so limited as to render it quite inefficient as amode of punishing the rich. To a man who has no capital,who had laid by nothing, whose monthly wages are justsufficient to provide himself and his family with theirmonthly rice, it matters not whether the fine for assault beleft to be settled by the discretion of the courts, or whethera hundred rupees be fixed as the maximum. There are nodegrees in impossibility. He is no more able to pay ahundred rupees than to pay a lakh. A just and wise Judge,even if entrusted with a boundless discretion, will not,under ordinary circumstances, …would leave it quite inthe power of an unjust or inconsiderate Judge to inflict onsuch an offender all the evil which can be inflicted on himby means of fine….

It appears to us that the punishment of fine is a peculiarlyappropriate punishment for all offences to which men areprompted by cupidity; for it is a punishment whichoperates directly on the very feeling which impels men tosuch offences. A man who has been guilty of great offences arising from cupidity, of forging a bill ofexchange, for example, of keeping a receptacle for stolengoods, or of extensive embezzlement, ought, we conceive,to be so fined as to reduce him to poverty. That such a manshould, when his imprisonment is over, return to theenjoyment of three-fourths of his property, a propertywhich may be very large and which may have beenaccumulated by his offences, appears to us highlyobjectionable. Those persons who are most likely tocommit such offences would often be less deterred byknowing that the offender had passed several years inimprisonment, than encouraged by seeing him, after hisliberation, enjoying the far larger part of his wealth…”

39. We are mindful and conscious that the present case is underthe NDPS Act. Section 18 quoted above provides penalty forcertain offences in relation to opium poppy and opium.Minimum fine contemplated by the said provision is rupees onelakh (“fine which shall not be less than one lakh rupees”). It isalso true that the appellant has been ordered to undergosubstantive sentence of rigorous imprisonment for ten yearswhich is minimum. It is equally true that maximum sentenceimposable on the appellant is twenty years. The learned counselfor the State again is right in submitting that Clause (b) of sub-section (1) of Section 30, CrPC authorises the court to awardimprisonment in default of payment of fine up to one-fourthterm of imprisonment which the court is competent to inflict aspunishment for the offence. But considering the circumstancesplaced before us on behalf of the appellant-accused that he isvery poor; he is merely a carrier; he has to maintain his family;it was his first offence; because of his poverty, he could not paythe heavy amount of fine (rupees one lakh) and if he is orderedto remain in jail even after the period of substantive sentence isover only because of his inability to pay fine, serious prejudicewill be caused not only to him, but also to his family memberswho are innocent. We are, therefore, of the view that though anamount of payment of fine of rupees one lakh which isminimum as specified in Section 18 of the Act cannot bereduced in view of the legislative mandate, ends of justicewould be met if we retain that part of the direction, but orderthat in default of payment of fine of rupees one lakh, the appellant shall undergo rigorous imprisonment for six monthsinstead of three years as ordered by the trial court andconfirmed by the High Court.”

21. Upon due consideration, this Court in exercise of its powerunder Section 397 Cr.P.C would partly agree with the learned GA thatthe impugned judgment as a whole merits no interference as the samehas been passed taking everything into consideration. However, only asregard the imposition of fine, this Court finds that the learned trial courthas failed to properly consider the financial status of the petitioner, thefact that he is working in a Grade-IV post as a muster roll which couldbe temporary in nature and also that he has since been relieved from hisemployment, the amount of fine imposed may have been excessive.Thus, impropriety in the impugned sentence is accordingly detectedwhich would allow this Court to revise the same, if so warranted.

22. This Court is also brought to notice that the petitioner hadalready undergone the substantial period of imprisonment and is aboutthree months or so in custody in excess of the said period, which in allprobability could be termed as a part compliance to the period of defaultpayment of fine. Be that as it may, under the circumstances, this Court isof the considered opinion that in striking a balance between theentitlement of the survivor in terms of compensation and theconsideration of the pecuniary situation of the petitioner, it would besufficient to direct that the petitioner pay a consolidated amount of fineof 1,00,000/- (rupees one lakh) only to be finally let off in this case.₹

23. Accordingly, this petition is hereby disposed of with a directionthat the petitioner deposit a sum of 1,00,000/- (rupees one lakh) only₹following which he is to be released from custody.

Judge