DHARMESH @ DHARMENDRA @ DHAMO JAGDISHBHAI @ JAGABHAI BHAGUBHAI RATADIA & ANR.versusTHE STATE OF GUJARAT

                          [2021] 8 S.C.R. 1                              1


 DHARMESH @ DHARMENDRA @ DHAMO JAGDISHBHAI                               A
     @ JAGABHAI BHAGUBHAI RATADIA & ANR.
                                  v.
                    THE STATE OF GUJARAT
                 (Criminal Appeal No. 432 of 2021)                       B
                           JULY 07, 2021
   [SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]
       Bail: Imposition of condition for bail – Free fight between
two groups in Amreli resulting in death of two persons – Case against
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13 persons – Appellants, arrayed as accused no.12 and 13, were
arrested – By impugned order, they were granted bail – However,
they were aggrieved by the condition imposed on them for bail
requiring them to deposit Rs.2 lakhs before the trial court as
compensation to victims – Held: In cases of offences against body,
compensation to the victim should be a methodology for redemption        D
– Similarly, to prevent unnecessary harassment, compensation has
been provided where meaningless criminal proceedings had been
started – Such a compensation can hardly be determined at the
stage of grant of bail – The direction contained in impugned order
for deposit of compensation of Rs.2 lakhs for the legal heirs of the
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deceased is set aside – Specific allegation against the appellants
was that they had beaten the complainant and the witnesses and
not any of the deceased – Apart from the appellants, out of total 13
arrayed accused, 11 were released on bail by the High Court and/
or Sessions Court – High Court in their cases, had imposed stringent
conditions including an embargo from entering the geographical           F
limits of Amreli and regularly marking presence before the police
station amongst other conditions – In view of that, same terms and
conditions imposed for grant of bail to the appellants – The direction
for deposit of compensation of Rs.2 lakhs is substituted with the
condition that the appellants will not enter the geographical limits
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of Amreli for a period of six months except for marking presence
before the concerned police station and to attend the court
proceedings – Appeal allowed.
      Palaniappa Gounder v. State of Tamil Nadu & Ors.
      [1977] 3 SCR 132 – referred to.
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2            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A                           Case Law Reference
    [1977] 3 SCR 132                 referred to                 Para 12
          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    432 of 2021.
B         From the Judgment and Order dated 15.12.2020 of the High Court
    of Gujarat at Ahmedabad in R/Criminal Misc. Application No. 17566 of
    2020.
          Ms. Aastha Mehta, Tushar Gokani, Ms. Vishakha, Atul Kumar,
    Advs. for the Appellants.
C         Aniruddha P. Mayee, Adv. for the Respondent.
          The Judgment of the Court was delivered by
          SANJAY KISHAN KAUL, J.
           1. An unfortunate incident took place on 10.11.2019, which is
D   alleged by the complainant to be caused by certain members of his caste
    providing assistance to the police which resulted in a free fight where
    the appellants herein were also present. Two persons succumbed to
    their injuries and an FIR was registered on 11.11.2019 with the Amreli
    Police Station against 13 persons, being CR No.I-94 of 2019 under
    Sections 302, 307, 324, 323, 506(2), 504, 143, 144, 147, 148, 149, 120B
E   and 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. A
    counter FIR was also filed on 11.11.2019, being I-95/2019 against the
    complainant 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 the
F   Gujarat 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 of
    the impugned judgment dated 15.12.2020, bail was granted to them.
    However, they are aggrieved by the condition imposed on them for bail,
G   requiring them to deposit Rs.2 lakh each as compensation to the victims
    before the learned trial court within a period of three months.
          3. The narrow compass of the arguments before us rests on the
    absence of any provision in the Code of Criminal Procedure, 1908
    (hereinafter referred to as the ‘CrPC’) entitling the Court to impose
H   such a condition for payment of compensation for grant of bail. It is the
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submission of the learned counsel for the appellants that the High Court       A
imposed 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 different
provisions dealing with the aspect of compensation under the CrPC.
      5. In respect of the aforesaid, the first provisions referred to was     B
Section 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, the          C
      Court may, when passing judgment, order the whole or any part
      of the fine recovered to be applied-
      (a) in defraying the expenses properly incurred in the prosecution;
      (b) in the payment to any person of compensation for any loss or
      injury caused by the offence, when compensation is, in the opinion       D
      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       E
      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 includes
      theft, criminal misappropriation, criminal breach of trust, or
      cheating, or of having dishonestly received or retained, or of having    F
      voluntarily assisted in disposing of, stolen property knowing or
      having reason to believe the same to be stolen, in compensating
      any bona fide purchaser of such property for the loss of the same
      if such property is restored to the possession of the person entitled
      thereto.
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      (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, if an appeal be presented,
      before the decision of the appeal.

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4             SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A         (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.
B
          (4) An order under this section may also be made by an Appellate
          Court or by the High Court or Court of Session when exercising
          its powers of revision.
          (5) At the time of awarding compensation in any subsequent civil
C         suit relating to the same matter, the Court shall take into account
          any sum paid or recovered as compensation under this section.”
                                                          (emphasis supplied)
           6. In the aforesaid context it was pointed out that the essential
    requirements 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) of
    Section 357 of the CrPC the said amount could be utilised for payment
    of compensation for any loss or injury caused by the offence when such
E   amount 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 imposes
    a sentence” and where a “fine does not form a part”, an accused may
    be asked to pay compensation when passing the judgment.
F
           9. It is, thus, submitted that it is clear from a plain reading of
    Section 357 that such compensation can only arise after the conclusion
    of trial albeit, of course, the same being a matter of discretion. Thus,
    without a full-fledged trial there cannot be a sentence and, thus, there
    cannot be any such compensation.
G         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 Judge
H         shall give a judgment in the case.
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         (2) If the accused is convicted, the Judge shall, unless he proceeds   A
         in accordance with the provisions of section 360, hear the accused
         on the question of sentence, and then pass sentence on him
         according to law.”
                                                        (emphasis supplied)
       11. It is submitted that a Judge has to hear an accused on the           B
question of sentence, which would also support the plea as per the scheme
of the Act that the sentence must precede grant of compensation.
       12. It is in the aforesaid context that this Court had opined in
Palaniappa Gounder v. State of Tamil Nadu &Ors.1 that a court
must take into account the nature of the crime, the injury suffered, the        C
justness of the claim, the capacity to pay and other relevant circumstances
in fixing the amount of fine or compensation. These aspects would be
considered only after giving an opportunity to the person convicted to
hear him out on these aspects and that would naturally be post the
conviction. The grant of bail, it was contended, would only be as we            D
say, even if charges are framed, a prima facie view based on the principle
of not unnecessarily keeping a person in custody.
      13. Learned counsel also referred to the provisions of Section
250(1) of the CrPC, which reads as under:
         “250. Compensation for accusation without reasonable                   E
         cause.
         (1) If, in any case instituted upon complaint or upon information
         given to a police officer or to a Magistrate, one or more persons is
         or are accused before a Magistrate of any offence triable by a
         Magistrate, and the Magistrate by whom the case is heard               F
         discharges or acquits all or any of the accused, and is of opinion
         that there was no reasonable ground for making the accusation
         against them or any of them, the Magistrate may, by his order of
         discharge or acquittal, if the person upon whose complaint or
         information the accusation was made is present, call upon him
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         forthwith to show cause why he should not pay compensation to
         such accused or to each or any of such accused when there are



1
    1977 SCR (3) 132                                                            H
6             SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A         more than one; or, if such person is not present, direct the issue of
          a summons to him to appear and show cause as aforesaid.”
                                                          (emphasis supplied)
           14. The aforesaid provision comes also at the same stage albeit
    where an accused is acquitted to award compensation if the Court is
B   satisfied that there was no reasonable ground for making the accusation
    against him. This is, of course, in a contra scenario.
          15. One further aspect pointed out by learned counsel for the
    appellant is that the inadequacy of compensation is appealable under
    Section 372 of the CrPC, which would naturally imply that a conclusion
C   has been reached on imposition of sentence and/or fine. The condition
    for award of damages as a condition for bail would not be appealable.
           16. We called upon learned counsel for the State to address
    submissions in this regard but she was not able to portray a picture
    against what has been placed before us by the learned counsel for the
D   appellants and, really cannot be so. In our view the objective is clear that
    in cases of offences against body, compensation to the victim should be
    a methodology for redemption. Similarly, to prevent unnecessary
    harassment, compensation has been provided where meaningless criminal
    proceedings had been started. Such a compensation can hardly be
E   determined at the stage of grant of bail.
          17. We may hasten to add that we are not saying that no monetary
    condition can be imposed for grant of bail. We say so as there are cases
    of offences against property or otherwise but that cannot be a
    compensation to be deposited and disbursed as if that grant has to take
F   place as a condition of the person being enlarged on bail.
          18. Once we come to the aforesaid conclusion, the direction
    contained in the impugned order for deposit of compensation of Rs.2
    lakh for the legal heirs of the deceased naturally cannot be sustained
    and has to be logically set aside.
G          19. We also consider it appropriate not only to consider the
    aforesaid 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 time
    of issuance of notice.
          20. In the aforesaid context, learned counsel for the appellants
H   contended that the specific allegations against the two appellants as
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Accused Nos. 12 & 13 is that they had beaten the complainant and the            A
witnesses and not any of the deceased. It was a case of free fight
between 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 bail
without imposing the aforesaid condition. In case of these accused,
specific roles related to (a) blows being given with wooden sticks and
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iron pipes with a shout to kill, (b) blow with the stick to the complainant
and witnesses and (c) the allegation of forwarding a Whatsapp recording
to create animosity between the two groups. Apart from these four
accused, it was urged that out of total 13 arrayed accused, 11 had been
released on bail by the High Court and/or Sessions Court. The High
Court had imposed stringent conditions including an embargo from                C
entering the geographical limits of Amreli and regularly marking presence
before the police station amongst other conditions. Learned counsel for
the appellants claims parity with those orders and submits that the
appellants may be imposed with the same conditions even though their
role was much less than the other accused persons.
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       21. Learned counsel for the State, once again, cannot dispute the
role of the appellants vis-à-vis the role of the other accused, who had
been enlarged on bail on the aforesaid terms and conditions.
       22. In view of the aforesaid, we consider it appropriate to impose
the same terms and conditions for grant of bail upon the appellants and         E
set aside condition (f) of the bail requiring the appellants to deposit Rs.2
lakh each towards compensation to the victims before the trial court and
the consequential orders for disbursement. This condition is instead to
be substituted with the condition that the appellants will not enter the
geographical limits of Amreli for a period of six (6) months except for
marking presence before the concerned police station and to attend the          F
court proceedings.
      23. The appeal is accordingly allowed in the aforesaid terms leaving
the parties to bear their own costs.

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Devika Gujral                                                 Appeal allowed.




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