C. Ganga vs Lakshmi Ammal And Anr. on 31/3/2008
R. Basant, J.
1. Are the criminal courts jurisdictionally competent to impose a sentence of imprisonment in default of a direction to pay compensation under Section 357(3) CrP.C? What is the correct law on the point? Is the law declared in Harikrishnan and State of Haryana v. Sukhbir Singh and Ors. reiterated unambiguously in Suganthi Suresh Kumar v. Jagdeeshan . in any way altered by the
subsequent decision of the Supreme Court in Ettappadan Ahammedkutty @ Kunhappu v. E.P. Abdullakoya @ Kunhi Bappu and Anr. 2008 (1) KLT 851 SC? Will it now be lawful for the Magistrate to impose such a default sentence?
2. The question appears to be a vexing one and it appears that there is absolute confusion in the subordinate judiciary about the correct law that ought to be followed. I deem it my duty to help the subordinate judiciary to ascertain the law with clarity. Such confusion cannot be permitted to continue. The question came up for consideration in many cases and all counsel who wanted to advance arguments were permitted to advance such arguments before me in this case on that aspect. All of them have been heard and permitted to assist this Court. Two young counsel of this Court, Sri. Jawahar Jose and Sri. C.V. Manu Vilsan were also requested to look up the matter in detail and assist the court as amicus curiae. They have certainly done justice to the assignment given to them by this Court and I place on record my appreciation for the work done by them.
3. There can be no doubt whatsoever that a direction for payment of compensation to the victim can be issued by a Magistrate under Section 357(3) Cr.P.C. It is also well settled by now that such a direction can be issued for payment of amounts beyond the maximum fine which a Magistrate can impose under Section 29 of the Cr.P.C. The last trace of doubt, if any, on this aspect is laid to rest by the decision in Bhaskaran v. Balan 1999(3) KLT 440 (SC). The Supreme Court observes so in paragraph 30 and 31 of the said decision.
30. It is true, if a judicial magistrate of first class were to order compensation to be paid to the complainant from out of the fine realised the complainant will be the loser when the cheque amount exceeded the said limit. In such a case a complainant would get only the maximum amount of Rupees five thousand.
31. However, the magistrate in such cases can alleviate the grievance of the complainant by making resort to Section 357(3) of the Code. It is well to remember that this Court has emphasized the need for making liberal use of that provision (Hari Krishnan and State of Haryana v. Sukhbit Singh and Ors. JT 1988 (3) SC 11). No limit is mentioned in the sub-section and therefore, a magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to. the complainant. Thus, even if the trial was before a court of magistrate of first class in respect of a cheque which covers an amount exceeding Rs. 5,000/- the court has power to award compensation to be paid to the complainant.
4. The next question is whether a default sentence can be imposed for failure to comply with the direction under Section 357(3) Cr.P.C. I shall first try to analyse the provisions of Code to ascertain whether such a power is available to the court. I shall proceed to consider precedents on the point later. I must readily confess that I have not been able to place my finger on any provisions of the Code which specifically declares that such a default sentence can be imposed. Section 357(3) Cr.P.C. only directs that when a court imposes a sentence of which fine does not form a part, the court may, when passing judgment order the accused persons 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 persons have been so sentenced. Significantly, Section 357(3) Cr.P.C. does not speak of the manner in which the direction can be enforced.
5. It is pointed out to me by the amicus curiae that in so far as directions for payment of compensation and cost under Sections 358 and 359 Cr.P.C. are concerned there are specific provisions therein which stipulate that if payment is not made of such amounts a default sentence can be imposed. But in so far as Section 357(3) Cr.P.C. is concerned, no such specific stipulation is seen made. We now come to the manner in which such amount can be recovered. Section 431 Cr.P.C. deals with the recovery of amounts other than fine. It reads as follows:
431. Money ordered to be paid recoverable as a fine:- Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:
6. Reading Section 357(3) Cr.P.C. and Section 431, it is evident that the amount of compensation directed to be paid under Section 357(3) Cr.P.C. though not a fine will have to be recovered "as if it were a fine". Non fine is deemed to be a fine for the purpose of recovery under Section 431 Cr.P.c. An amount of compensation ordered is no fine; but the law mandates in Section 431 that the courts must recover the same by deeming it to be a fine - "as if it were a fine". That is the mandate of Section 431 Cr.P.C. The fiction is to be employed and must continue till the purpose of the fiction is exhausted. The fiction is pressed into service to facilitate recovery. Until the recovery is made, the deeming provision - the legal fiction - that compensation must be deemed to be fine must remain. All methods of recovery of fine must hence be held to be available for recovery of deemed fines also.
7. Section 421(1) Cr.P.C. deals with the procedure for recovery of the fine amount. It reads as follows:
Section 421 Warrant for levy of fine.- (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, it the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.
8. While it is true that Section 421 enumerates the procedure for recovery of the fine amount, it must be noted that Section 421 does not at all fetter the option of the Magistrate to impose a default sentence. It is not the law that a Magistrate has to exhause the procedure under Section 421 Cr.P.C. before imposing or executing a default sentence. Nor is it the law that the liability for the fine amount being recovered under Section 421 Cr.P.C. would come to an end in all cases as soon as the default sentence is undergone. Wherever the legislature wanted attempt for recovery under Section 421(1) Cr.P.C. to be exhausted before imposing a default sentence, it has been made clear in the statutory provision itself. Reference to the language of Section 125(3) Cr.P.C. and Section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act in this context relevant. A default sentence under Section 125(3) of the Code of Criminal Procedure and Section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act can be imposed only if the maintenance amount remains "unpaid after the execution of the warrant" for levying such amount. Not so in the case of fines stricto senso or deemed fines under Section 431 Cr.P.C. That appears to me to be significant.
9. That takes me to the next question as to where one can locate the legal authority for imposing a default sentence for non payment of fine (or deemed fine). A default sentence it must be noted is no punishment under law. Section 53 I.P.C. deals with the various punishments that can be imposed. Imprisonment in default of payment of fine is not a punishment prescribed under Section 53 I.P.C. It speaks only of five punishments (after deletion of the third clause) and significantly imprisonment in default of fine is not a punishment stipulated under the Indian Penal Code. No punishment can be imposed unless such punishment is reckoned as a punishment under the Indian Penal Code.
10. What then is the legal authority for imposing and the character of a default sentence - be it for non-payment of fine or deemed fine? It is here that we come to the relevant stipulations under the I.P.C. and the Cr.P.C. Section 64 to Section 70 I.P.C. deal with imposition of the sentence of imprisonment for non-payment of fine. I extract them below:
64. Sentence of imprisonment for non-payment of fine. - (In every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable (with offender is sentenced to a fine,) it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a communication of a sentence.
65. Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable.- The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.
66. Description of imprisonment for non-payment of fine:- The imprisonment which the Court imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence.
67. Imprisonment for non-payment of fine, when offence punishable with fine only.- If the offence be punishable with fine only, (the imprisonment which the Court imposes in default of payment of the fine shall be simple, and) the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case.
68. Imprisonment to terminate on payment of fine.- The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.
69. Termination of imprisonment on payment of proportional part of fine -If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminatable.
70. Fine leviable within six years, or during imprisonment. Death not to discharge property from liability- The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period, and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts.
11. In the Cr.P.C, we get the relevant stipulations in Section 30 which is extracted below: .
30. Sentence of imprisonment in default of fine.- (1) The Court of a Magistrate may a award such term of imprisonment in default of payment of fine as is authorised by law:
Provided that the term-
(a) is not in excess of the powers of the Magistrate under Section 29;
(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this Section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29.
12. An analysis of the above provisions clearly reveals that default sentence is certainly not a punishment. It is only a method of enforcement of the direction for payment of amounts directed to be paid as fine. Wherever the Criminal Court has the jurisdictional competence to impose a fine, Sections 64 to 70 I.P.C. and Section 30 Cr.P.C. stipulate that the Court can recover the same by imposition of a default sentence. Section 25 of the General Clauses Act is also relevant in this context. The jurisdiction to impose a default sentence is only incidental to the power to impose a fine and the duty of the court to recover the same. It would be idle to look for a different provision to clothe the court with power to impose a deault sentence. If there is power/jurisdiction to impose a fine there is the power, jurisdiction responsibility and duty on the court to recovery the same. The power to impose a default sentence is only incidental to such duty. The defaulter is compelled to pay such fine under the threat of detention. Until payment is made, such detention may be ordered to continue subject to the maximum period prescribed by Sections 64 to 70 I.P.C. and Section 30 Cr.P.C. Imprisonment in default is no punishment. Detention in prison to enforce payment of amounts due is a concept known to the civil law of execution of decrees or orders. It is no punishment. It is only a step/method to compel payment. As soon as payment is made the imprisonment terminates also. Provisions of Sections 64 to 70 I.P.C. and Section 30 Cr.P.C. must certainly apply whether they be fines stricto sense or deemed fines as stipulated under Section 431 Cr.P.C. as both amounts are to be recovered. The deeming under Section 431 Cr.P.C. is pressed into service to facilitate recovery. It must continue till recovery is completed. Whether fine or deemed fine, Section 64 to 70 I.P.C. and Section 30 I.P.C. must have application. The point is that the default sentence is not a punishment stricto senso. It is only a method of enforcement of a direction for payment of fine.
13. If that be so, when Section 431 stipulates that the amounts/deemed fines are to be recovered as fines, provisions relating to imposition of default sentence to enforce recovery of the amounts must apply to such deemed fines also. If therefore appears to be very clear and easy to conclude that default sentence is not a punishment and that the same is only a method of recovery of fine/deemed fine. If it is no punishment and it is only a method of recovery, the fiction employed under Section 431 Cr.P.C. must apply and all courses which are available for recovery of fine amount must apply for recovery of non-fines - but deemed fines, under Section 431 Cr.P.C.
14. The contention that framer of the Code of Criminal Procedure which stipulates in Section 358 and 359 that a default sentence can be imposed for non-payment of amounts under those Sections has not thought it fit to incorporate such a provision in Section 357(3) is impressive at the first blush but cannot obviously stand closer and careful scrutiny. Sections 64 to 70 I.P.C. and Section 30 Cr.P.C. cannot help to identify the maximum default sentence that can be imposed on a non accused, against whom alone directions under Section 358 and 359 can be imposed. That, to mind clearly explains why the framers of the Code incorporated such provisions in Sections 358 and 359 Cr.P.C. So far as the directions under Section 357(3) Cr.P.C. is concerned the framers of the Code evidently knew that the deeming done under Section 431 Cr.P.C. would entail the application of Sections 64 to 70 I.P.C., and Section 30 Cr.P.C. and it was obviousbly felt that it was not necessary to incorporate identical provisions in Section 357(3) Cr.P.C. as in Section 358 or Section 359 Cr.P.C.
15. Thus from first principles and from the provisions of the Code I fine it easy to come to the conclusion that an amount directed to be paid under Section 357(3) Cr.P.C. must be deemed to be fine for the purpose of recovery under Section 431 Cr.P.C. and once so deemed provisions relating to imposition of default sentence for non payment of fine under the I.P.C. and the Cr.P.C. must apply for the recovery of such deemed fines also.
16. I shall now refer to the precedents on this aspect. In Shanthilal v. State of M.P. 2008(1) SC CRL. the Supreme Court observed thus in paragraph 31.
31. The term os imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or "otherwise". A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount.
17. The Supreme Court in Kuldip Kaur v. Surinder Singh had occasion to consider the very specific aspect in paragraphs 5 and 6 and had proceeded to observed that the imposition of sentence in default of payment is only a mode of enforcing recovery of the amount. Sentencing a person to jail (for default in payment of the amount due) is a "mode of enforcement" declared the Supreme Court in paragraph 6. The Supreme Court in that case was considering a direction to undergo default sentence under Section 125(3) Cr.P.C. and the question was whether such sentence would wipe off the liability. The conclusion therefore appears to be easy and unmistakable that the jurisdiction to impose default sentence is only incidental to the duty and powers to recover the fine amount directed to be paid. Such sentence imposed is only a made of enforcement of the direction to pay fine. Because of the deeming fiction under Section 431 Cr.P.C. deemed fine can also be recovered as if it were fine and hence all 'modes of enforcement' of a direction to pay fine are available to a court to recover deemed fines under Section 431 Cr.P.C. also.
18. Having thus come to such conclusion from principles, statutory decisions of the Supreme Court on the question as to how an amount directed to be paid under Section 357(3) Cr.P.C. is to be recovered. It will be apposite first of all to take note of the decision in Harikrishnan and State of Haryana v. Sukhbir Singh and Ors. where the court considered the manner in which a
direction for payment of compensation can be recovered. That was the decision of a two Judge bench. The court said so in paragraphs 10 and
10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not of concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive the victim crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way.
11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The court may enforce the order by imposing sentence in default.
19. We are also now concerned only with Sub-section 3. It is held unambiguously in Harikrishnan that the court may enforce the order under Section 357(3) Cr.P.C. by imposing sentence default. What I want to note particularly is that the learned Judges were specifically dealing with Section 347(3) Cr.P.C. and had declared unambiguously that the court may enforce the order by imposing sentence in default. The principles of victimology have also got to be borne in mind. Criminal Justice is not only punitive; but is certainly restitutive also. This has been declared by the Supreme Court and the High Courts repeatedly. We can ill-afford to ignore the plight of the third party in every crime - the victim of the crime. He deserves to be compensated. He deserves to be assured that the system has not forgotten him. It follows that a toothless direction under Section 357(3) Cr.P.C. is unlikely to achieve this result. The decision of the two Judge Bench in Harikrishnan clearly shows that a direction for payment of compensation under Section 357(3) Cr.P.C. can be enforced by imposing a sentence in default.
20. Even after the decision in Harikrishnan. it appears that there were lingering doubts in the minds of the courts as to whether such a default sentence can be imposed. The Supreme Court in Harikrishnan had nor discussed the juriscrudential basis on which such a direction can be issued. That evidently led to a lot of confusion and in the Kerala High Court itself, we find many decisions in which different views were taken by Judges holding the opinion that a default sentence cannot be imposed when attempt is made to recover compensation under Section 357(3) Cr.P.C. See the following decisions:
1. Rajendran v. Jose 2001 (3) KLT 431
2. Radhakrishnan Nair v. Padmanabhan 2000(2) KLJ 349
3. Siby v. Vilasini 1988 (2) KLT 462
21. The confusion, if any on this aspect was, according to me, laid to rest by another two Judge Bench of the Supreme Court itself in Suganthi. A learned Judge of this Court had taken the view that default sentence cannot be imposed. The Supreme Court expressed in unambiguous terms that such a view is impermissible. I need only extract paragraphs 8 to 10 of the decision in Suganthi to remove the last trace of doubt if any on this aspect.
8. It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Court in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India that the High Court
cannot question the correctness of the decision of the Supreme Court even though the point; sought before the High Court was not considered by the Supreme Court.
9. That apart, Section 431 of the Code has only prescribed that any money (other than fine) payable by virtue of an order made under the Code shall be recoverable" as if it were a fine". Two modes of recovery of the fine have been indicated in Section 421(1) of the Code. The proviso to the sub-section says that if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue such wan-ant for levy of the amount.
10. When this Court pronounced in Hari Singh v. Sukhbir Singh (supra) that a court may enforce an order to pay compensation "by imposing a sentence in default" it is open to all courts in India to follow the said course. The said legal position would continue to hold good until it is overruled by a larger Bench of this Court. Hence learned Single Judge of High Court of Kerala has committed an impropriety by expressing that the said legal direction of this Court should not be followed by the subordinate courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose 2001 (3) Kerala Law Times 431. It is unfortunate that when the Sessions Judge had correctly done in a course in accordance with the discipline the single Judge of the High Court has incorrectly reversed it.
22. In the light of the unambiguous pronouncement in Suganthi explaining Harikrishnan no surviving doubt can linger in the minds of the judicial functionaries as to whether such a default sentence can be imposed or not. The Supreme Court has declared in Suganthi that the said legal position declared in Harikrishnan shall continue to hold good until it is overruled by a larger Bench of this Court. Accordingly criminal courts have thereafter been imposing such default sentence.
23. I must say that the jurisdiction to impose such default sentences for non-payment of the compensation amount has helped considerably in doing justice to the victim as also the offender in many cases. Section 138 of the Negotiable Instalments Act was introduced by the Parliament in 1988 and with one stroke what was hitherto only a moral or civil wrong got transformed into a culpable penal offence. Conscience of the courts was not satisfied that deterrent substantive sentence of imprisonment would be justified in such cases. Courts have been resorting to the medhodology of imposing a substantive sentence of imprisonment till rising of court coupled with a direction that the accused must undergo a default sentence if payment is not made. Thereby in the initial twilight period of enforcement of such a new penal provision, justice was worked out by not compelling the offender to serve any deterrent substantive sentence of imprisonment, ensuring at the same time that he makes amends for his culpable indiscretion by making payments to compensate the victim.
24. It is at this juncture that we have to consider the latest decision of another two Judge bench of the Supreme Court in Ettappadan Ahammedkutty @ Kunhappu v. E.P. Abdullakoya @ Kunhi Bappu and Anr. 2008(1) KLT 851 SC. I extract the entire decision below.
Compensation can be directed to be paid both in terms of Sub-section (1) of Section 357 of the Code of Criminal Procedure as also Sub-section (3) thereof. However while exercising jurisdiction under Sub-section (3) of Section 357, no direction can be issued that in default to pay the amount of compensation, the accused shall suffer simple imprisonment. Such an order could have been passed only in terms of Sub-section (1) of Section 357. If the compensation directed to be paid by the court in exercise of its jurisdiction under Sub-section (3) of Section 357 Cr.P.C. is not deposited, the same can be realised as fine in terms of Section 423 of the Code. We are, therefore, of the opinion that the part of the impugned order whereby and whereunder the appellant has been directed to undergo imprisonment for a period of one month, in the event of default to pay compensation under Sub-section (3) of Section 357, is set aside. Rest of the order of the High Court is upheld.
The appeal is disposed of with the aforementioned observations.
25. Does the decision in Ahammedkutty offset and dislodge the dictum in Harikrishnan and Suganthi? This is the problem posed before me. This is the dilemma before the courts below.
26. It is not necessary for me in this case to advert to specific precedents regarding the binding nature of such a later precedent. My attention has been drawn to the decision
1. Mamaleshwar Prasad and Anr. v. Kanhaiya Lal (Dead)
2. Government of A.P. and Anr. v. B. Sathyanarryana Rao 2004(4) SCC 262 Paragraph 8
3. Nirmaljeet Kaur v. State of M.P. and Anr. Paragraph 21
4. Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr.
27. The law of precedents appears to be clear. I may only attempt to reiterate the same from principle and precedent. The following principles appear to be settled beyond controversy.
(i) The law declared by the Supreme Court, under Article 141 of the Constitution of India, is binding on all other courts.
(ii) Conflict between two decisions cannot be lightly inferred or assumed. Every attempt must be made by the courts to harmonise the various binding precedents. It will have to be assumed and presumed that, though not specifically referred to, the court was aware of all binding precedental dicta and statutory provisions.
(iii) If there be, and if only there be, unavoidable and irreconcilable and inescapable conflict, the question of which decision to follow and which to be reckoned as binding would arise. Then the decision of the larger bench must be followed. The position is the same whether the larger bench is prior or later in point of time. In such a situation the fact that the larger bench does not refer to the earlier decision of the smaller bench is irrelevant.
(iv) A smaller bench or a co-ordinate bench cannot lay down a legal proposition different from an earlier binding decision of a larger or co-ordinate bench. If there be disagreement, the smaller bench must follow the earlier binding decision and a co-ordinate bench is bound to refer the matter to a larger bench for its decision. The smaller bench if it disagrees can at best only request the Chief Justice to invoke his powers to place the matter before a larger bench. Consequently it must be assumed and presumed that no smaller or co-ordinate bench even lays down or intends to lay down a principles contrary to the binding decision of an earlier larger or co-ordinate bench.
(v) If a smaller or co-ordinate bench refers to the decision of an earlier larger bench or-ordinate bench and takes a decision explaining the same, such explanation/understanding of the larger/co-ordinate bench decision by such smaller or co-ordinate bench shall be followed later by all smaller of coordinate benches unless they resort to the course of reference as indicated in (iv) above.
(vi) If any smaller or co-ordinate bench unfortunately overlooks or omits to refer to an earlier binding precedent of a larger or co-ordinate bench and a conflict of the nature referred to in proposition (i) exists such later decision has no binding sway and must be reckoned as rendered per incurium. Such decisions per incurium cannot be followed. Subordinate courts with respect must choose to follow the earlier binding precedents notwithstanding the later per incurium decision of the smaller or co-ordinate bench.
28. The counsel contend that the decision in Ahammedkutty unfortunately does not refer to Harikrishnan and Suganthi and the contra legal position taken in Ahammedkutty cannot be held to be of much binding value. In paragraph 7 of Mamaleshwar Prasad and Anr. v. Kanhaiya Lal (Dead) Through L.Rs. it is observed so by the three Judge Bench of the Supreme Court in the following words.
Certainly of the law, consistency of rulings an comity of courts - all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cases. The Court does not intend to detract from the rule that in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents.
29. The counsel contend that inasmuch as Ahammedkuty does not refer to earlier binding precedents in Harikrishnan and Suganthi it must be held to be a decision rendered per incurium and hence not binding under Article 141 of the Constitution of India. I do note that unfortunately Harikrishnan and Suganthi were not brought to the notice of their lordships of the two judge bench when Ahammedkutty was decided. There is irreconciliable and head on conflict between the dicta in them. It is impossible to harmonise the conflicting stands taken in the said two decisions. Proposition (vi) explained above has to apply and the subordinate courts can only follow Harikrishnan and Suganthi until as stated in Suganthi a larger bench of the Supreme Court chooses to overrule the dictum.
30. Perhaps one way of looking at the whole issue is that in an appropriate case it is open to a court not to impose a default sentence. Merely because Sections 64 to 70 I.P.C. and Section 30 Cr.P.C. permits and enables imposition of a default sentence, it is not invariable that such a default sentence ought to be imposed in all cases. But I must hasten to add that ordinarily and normally, and in the absence of exceptional and compelling reasons, no court should issue a toothless direction under Section 357(3) Cr.P.C. That option - not to impose a default sentence must be invoked only in exceptional cases and in the teeth of compelling reasons. It is therefore declared that Harikrishnan and Suganthi will have to be followed by all subordinate courts in Kerala notwithstanding Ahammedkutty and that the criminal courts are competent to impose a default sentence while directing payment of compensation under Section 357(3) Cr.P.C.
31. Coming to the facts of the case, the petitioner was found guilty, convicted and sentenced under Section 138 of the Negotiable Instruments Act to undergo simple imprisonment for a period of six months. He was further directed to pay an amount of Rs. 1,00,000/- as compensation to the complainant under Section 357(3) Cr.P.C. In appeal, the learned Sessions Judge allowed the appeal in part. Conviction was confirmed. Sentence was altered. The accused was sentenced to undergo imprisonment till rising of court. Further, he was directed to pay an amount of Rs. 1,00,000/- as compensation and in default to undergo simple imprisonment for a period of six months. The verdict of guilty and conviction are not assailed on any aground. But it is contended that the default sentence imposed is not justified in the light of the decision in Ahammedkutty.
32. I have already taken the view that in the light of Harikrishnan and Suganthi, the decision in Ahammedkutty cannot have the sway of a binding precedent. Imposition of the default sentence is thus found to be valid and legal. I am, in these circumstances, satisfied that the impugned appellate judgment does not warrant any interference. Counsel prays that a short further time may be granted to the petitioner to raise the compensation amount, pay the same and avoid the default sentence. Proceedings were initiated as early as in 2004. The cheque bore the date 15-11-03. I do not find much merit in the prayer for any further time for making the payment but however, I am satisfied that there can be a direction that the sentence shall not be executed till 2-5-08. On or before that date, the petitioner shall appear before the learned Magistrate for execution of the sentence.
33. This revision petition is in these circumstances dismissed with the above observations/directions. Issue copy of this order to all criminal courts in the State.