MINAKETAN SENAPATI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE informant in a criminal prosecution and the minor injured boy are the petitioners assailing the revisional order of the learned Sessions Judge setting aside an order passed by the trying Magistrate directing payment of Rs. 100/ - to petitioner No. 1 and Rs. 50/ - to the wife of the petitioner No. 2 while releasing the opp. party No. 2 accused Under Section 4 of the Probation of Offenders Act. The opposite party No. 2 stood trial Under Sections 448, 341, 323, 325 and 294 IPC and was ultimately convicted of the charges, but the learned Magistrate directed his release under the Probation of Offenders Act and applying the provisions of Section 357(3), Cr PC levied the compensation. In a suo motu revision, the learned Sessions Judge held the order levying compensation to the unwarranted as Section 357(3), CrPC was applicable only when a sentence of fine or a sentence of which fine forms a part is passed. He was of the view that since the opp. party No. 2 was directed to be released under the provisions of the Probation of Offenders Act and no sentence of fine was imposed, Section 357(3) had no application for which he set aside the order. The view was also expressed that the provisions of Section 5 of the Probation of Offenders Act was not applicable as the learned trial Court has imposed, while directing compensation to be paid, a default sentence for its non - payment. Besides, the learned Sessions Judge was of the view that compensation is to be imposed only in rare cases and in case of loss or injury capable of being assessed in terms of money and cannot be awarded unless there is substantial loss. Mr. Misra, learned counsel for the petitioners, submits that the order by the learned Sessions Judge could not have been passed without hearing the petitioners since that right had accrued in their favour by virtue of the order passed by the learned Magistrate. Besides he also submits the order of compensation to have been correctly passed.

(2.) BOTH the submissions of the learned counsel have force. Though undoubtedly at the time the order for compensation was passed neither the informant nor the injured had a right to be heard, yet once such an order is passed in their favour, they cannot be made to lose it at revisional stage without being heard. The principles of the rule of audi alteram partem to criminal proceedings is no longer in doubt, and is applicable to such proceedings without exception, vide (1988) 1 OCR 612 (M/s. Orient Paper and Industries Limited v. The Registrar of Companies, Orissa). Since admittedly the learned Sessions Judge passed the impugned order in suo motu revision without hearing the petitioners, the order was vitiated in law. Though because of such defect the present revision is to be allowed and the case sent back to the learned Sessions Judge for re -hearing, yet the learned counsel for the petitioners submits that he shall address this Court on merits and that there is no necessity to send back the case. That being so, the learned counsel is permitted to argue the case.

(3.) THE conviction in the case inter alia was Under Sections 323 and 325, IPC. Petitioner No. 1 was found to have suffered a fracture. There was also injury sustained by the wife of the informant. The direction for compensation on such account hence cannot be said foreign to the concept of Section 5. As a matter of fact, considering the question of Section 357(3),CrPC, the Supreme Court observed in AIR 1988 SC 2127 (Hari Kishan v. Sukhbir Singh) that Section 357(2) is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of it. It empowers the Court to award compensation to victims while passing the judgment of conviction. This power is intended to do some filing to re -assure the victim that he or she is not forgotten in the criminal justice system.