# PALANIAPPA GOUNDER v. STATE OF TAMIL NADU & ORS

- **Citation:** [1977] 3 S.C.R. 132
- **Court:** Supreme Court of India
- **Decided:** 1977-03-04
- **Case number:** Criminal Appeal No. 190 of 1976
- **Bench:** Y. V. Chandrachud, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/palaniappa-gounder-v-state-of-tamil-nadu-ors-7159
- **Pages:** 7

## Headnote

·
. Cbmpensation to persons injured out of a1nount reali'sed by sentence of
fine-Propriety· of inzposition of
heary
{i1re,
while
sentencing-Guidelines
to the Courts for imposing
sentence of
fine-Section 357 of the Code
of
Criminal Procedure (Act 11 o/ 1974), 1973.
·
The appellant was convicted by the Sessions Judge. Salem for an offeiice
under s. 302 I.P.C. and was sentenced to death. The lligh Court motlified che
sentence of death to one of life imprisonment. However, exercising its Powers
under s. 367(4) of the Criminal Procedure Code, 1973, the High Court imposed
a fine of Rs. 20,000/- under s. 357(1)(c) of the Code.
Special Leave \\'·as
granted, by the court, limiting it into the question of propriety of the fine
imposed by the High Court.
·
Allowing the appeal in part and reducing the fine the Court,
HELD: ·(i) A saving provision which saves·· the inherent powers of the
court cannot over-ride an express provision contained in the
Statute
which
saves that power. That did not however affect the power of the High Court
to deal with the application merely because the application was wrongly described as having been made under a wrong section. In the instant case, the
High Court correctly passed an order of compensation not under s. 482 but
under s. 357(1)(c) of the Code and the application filed in the High Covrt
\Vas maintainable at the instance of the son and daughter of the deceased.
[133 H, 135 F-G]
(ii) Under s. 302 l.P.C. not only a sentence of imprisonment for life but
e\"en a sentence of death can legitim:itely be combined with a sentence of fine.
For the offence of murder; the court do ha·vc the pov,rer to impose the sentence
of fine.
[136 B-C]
(iii) Legitimacy is nOt to be confused \Vith propriety and the ,fact that the
court rossesscs a certain power does not mean that it must exercise it. Though
there 1s power to combine a sentence of death with a sentence of fine that
power is to be sparingly exercised because the sentence of death is an extreme
.penalty to impose and adding to that grave penalty a sentence of fine is hardly
calculated to serve any social purpose. [136 C-E]
(iv) The first concern of the court, after recording an order of conviction.
ought to be to determine the proper sentence to pass. The sentence must be
proportionate to the nature of the offence and the
sentence,
including
the
sentence of fine. must not be unduly excessive. In fact, the primary object
of impOsing a fine is not to ensure that the offender will undergo the sentence
in default of payment of fine but to see that the fine is realised which can
happen only when the fine is not unduly excessive, having regard to all the
circumstances of the case, including the means of the offender. [137 D-F]
(v) Since by s. 357(1)(c) of the code of 1973 and its precursor s. 545(1)
(bb) of the code of 1898 compensation can only come out of fine, it is always
necessary to consider in the first instance \\'hether the sentence of fine fa at
all called for, particularly when the offender is sentenced to death or life
imprisonment. If so, the fine must not be execessive, having regard to all
the circumstances of the case Hke motivation of the
offence,
the pecuniary
JZain likelv to have been made by the offender by committing the offence and
his means to pay the fine.
The High Court in the instant case in.stead of
· applying its mind to these factors, considered only what · compensation
the
· heirs ought to receive. There is no warrant for the assumption made by the
High Court as regards- the retention of .. abilities .in fact" or as regards the
"extent of I05S 'to the dependants." (137 A-C, 138 A-CJ
'
,
r
PALANIAPPA GOUNDER v. TAMIL NADU (Chandrachud; J.)
133
S1ate v. Pandurang Shinde, A.LR. (1956] Born 711, 714 referred to.
A
Adamji Umar Dalal v. The State of Bombay, (1952] S.C.R. 172, applied.
(vi) ln view of the fact that the appellant was under the sentence of death
since it'i imposition by the Sessions Court and its reduction to life iniprisonment b

## Text

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132
PALANIAPPA GOUNDER
v.
STATE OF TAMIL NADU & ORS.
March 4, 1977
(Y. V. CHANDRACHUD AND P. K. GOSWAMI, JJ.]
·
. Cbmpensation to persons injured out of a1nount reali'sed by sentence of
fine-Propriety· of inzposition of
heary
{i1re,
while
sentencing-Guidelines
to the Courts for imposing
sentence of
fine-Section 357 of the Code
of
Criminal Procedure (Act 11 o/ 1974), 1973.
·
The appellant was convicted by the Sessions Judge. Salem for an offeiice
under s. 302 I.P.C. and was sentenced to death. The lligh Court motlified che
sentence of death to one of life imprisonment. However, exercising its Powers
under s. 367(4) of the Criminal Procedure Code, 1973, the High Court imposed
a fine of Rs. 20,000/- under s. 357(1)(c) of the Code.
Special Leave \\'·as
granted, by the court, limiting it into the question of propriety of the fine
imposed by the High Court.
·
Allowing the appeal in part and reducing the fine the Court,
HELD: ·(i) A saving provision which saves·· the inherent powers of the
court cannot over-ride an express provision contained in the
Statute
which
saves that power. That did not however affect the power of the High Court
to deal with the application merely because the application was wrongly described as having been made under a wrong section. In the instant case, the
High Court correctly passed an order of compensation not under s. 482 but
under s. 357(1)(c) of the Code and the application filed in the High Covrt
\Vas maintainable at the instance of the son and daughter of the deceased.
[133 H, 135 F-G]
(ii) Under s. 302 l.P.C. not only a sentence of imprisonment for life but
e\"en a sentence of death can legitim:itely be combined with a sentence of fine.
For the offence of murder; the court do ha·vc the pov,rer to impose the sentence
of fine.
[136 B-C]
(iii) Legitimacy is nOt to be confused \Vith propriety and the ,fact that the
court rossesscs a certain power does not mean that it must exercise it. Though
there 1s power to combine a sentence of death with a sentence of fine that
power is to be sparingly exercised because the sentence of death is an extreme
.penalty to impose and adding to that grave penalty a sentence of fine is hardly
calculated to serve any social purpose. [136 C-E]
(iv) The first concern of the court, after recording an order of conviction.
ought to be to determine the proper sentence to pass. The sentence must be
proportionate to the nature of the offence and the
sentence,
including
the
sentence of fine. must not be unduly excessive. In fact, the primary object
of impOsing a fine is not to ensure that the offender will undergo the sentence
in default of payment of fine but to see that the fine is realised which can
happen only when the fine is not unduly excessive, having regard to all the
circumstances of the case, including the means of the offender. [137 D-F]
(v) Since by s. 357(1)(c) of the code of 1973 and its precursor s. 545(1)
(bb) of the code of 1898 compensation can only come out of fine, it is always
necessary to consider in the first instance \\'hether the sentence of fine fa at
all called for, particularly when the offender is sentenced to death or life
imprisonment. If so, the fine must not be execessive, having regard to all
the circumstances of the case Hke motivation of the
offence,
the pecuniary
JZain likelv to have been made by the offender by committing the offence and
his means to pay the fine.
The High Court in the instant case in.stead of
· applying its mind to these factors, considered only what · compensation
the
· heirs ought to receive. There is no warrant for the assumption made by the
High Court as regards- the retention of .. abilities .in fact" or as regards the
"extent of I05S 'to the dependants." (137 A-C, 138 A-CJ
'
,
r
PALANIAPPA GOUNDER v. TAMIL NADU (Chandrachud; J.)
133
S1ate v. Pandurang Shinde, A.LR. (1956] Born 711, 714 referred to.
A
Adamji Umar Dalal v. The State of Bombay, (1952] S.C.R. 172, applied.
(vi) ln view of the fact that the appellant was under the sentence of death
since it'i imposition by the Sessions Court and its reduction to life iniprisonment by the High Court since a sentence of life imprisonment
ha~ been
imposed on the appellant that being the only other sentence permissible under
the l:nv, the fine of Rs. 20,000 is unduly excessive and a sun1 of Rs.
3000/ -
\\oU!d meet the ends of justice.
[138 C-DJ
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 190
of 1976.
(Appeal by Special Leave from the Judgment and Order
15-7-1975 of the Madras High Court in Criminal Appeal No.
75.
Vineet Kumar and M. Mudgal, for the appellant.
A. V. Rangam and Miss A. Subhashni, for respondent No. 1
K. Jayaram and K. Ram Kumar, for respondents Nos. 2-4.
The Judgment of the Court was delivered by
dated
162(
CHANDRACHUD, J.
The appellant, Palaniappa Gounder, was convicted by the learned Principal Sessions Judge, Salem, under s. 302 of
the Penal Code and was sentenced to death on the charge that on
August 23, 1974 he had
committed
the murder of one Sengoda
Goundar.
Two appellant's son and daughter-in-law were convicted
by the learned Judge for abetting the murder and were sentenced to
life imprisonment.
The three accused filed an appeal in the High
Court of Madras which upheld the appellant's conviction under s.
302 but reduced the sentence from death to imprisonment of life.
However, while reducing the substantive sentence the High Court
imposed a fine of Rs. 20,000/- on the appe:Jant and directed that out
of the fine, if realised, a sum of Rs. 15,000/- should be paid to the son
and daughters of the decea5ed under s.
357(1) (e) of the Criminal
Procedure Code. 2 of 1974. The other two accused were acquitted by
the High Court. We are not concerned in this appeal with the legality
of the appellant's conviction or with the acquittal of his daughter and
son-in-law. The special leave granted by this Court is limited to the
question of the propriety of the fine imposed by the High Court.
The reason and occa5ion for imposing the sentence of fine was
that an application was filed before the High Court under s. 482
of
the Criminal Procedure Code by a son and two daughters of the
dccea5ed praymg that the appellant,
his son and daughter-in-law
be asked to pay to them, as heirs of the deceased, compensation in the
sum of Rs. 40,0001- for the death of their father.
Section 482 of the Code under which the heirs of the deceased
fil~d .the application for compensation corresponds to s. 561-A of the
Cnmr~al Procedure Code of 1898. It saves the inherent powers of
the Htgh Court to make such orders as may be necessary to give ~ffect
to any order under the Code or to prevent abuse of the process of
any Court or otherwise to secure the ends of justice.
A provision
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SUPREME COURT REPORTS
[1977] 3 S.C.R.
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which saves the inherent powers of a Court cannot over-ride any express
. provision containc<l in the statute which saves that power.
This is
put in another form by saying that if there is an express provision in
a statute governing a particular .subject matter there is no scope for •
invoking or exercising the inherent powers of the Court because the
Court ought. to apply the provisions of the statute which are made
advisedly to govern the particular subject matter.
From this it will
B
be clear that the application made by the heirs of the deceased for
compensation could not have been made under s. 482 since S· 357
expressly confers power on the court to pass an order for payment of
compensation in the circumstances mentioned therein.
That did not,
however, affect the power of the High Court to deal with the application because though the application was wrongly described a.o having
been made under s. 482 the High Court could deal with it as if it were
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made under s. 357 of the Code.
That in fact is what the High Court
proceeded to do, for it passed the order of compensation not under s.
482 but under s. 357(l)(c) of the Code.
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Section 357 of the Code of Criminal Procedure, 2 of 1974, reads
thus :
"357. Order to pay compe11sa1io11.
(1) When a Court imposes a sentence of fine or a sentence
(including a sentence of death) of which fine forms a part,
the 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 of the Court, recoverable by such
person in a Civil Court;
(c)
(d)
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 arc, under the Fatal Accidents
Act, 1855 (13 of 1855), entitled to recover damages
from the person sentenced for the loss resulting to them
from such death;
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 voluntarily assisted
in disposing of, stolen
property knowing
or having
reasons 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.
PALANIAPPA GOUNDER v. TAMIL NADU (Chandrachud, J.)
135
(2) If the fine is imposed in a case which is subject
to
A
appeal, no such payment shall be made before the period
allowed for presenting the appeal has
elapsed, or, of an
appeal be presented, before the decision of the appeal.
( 3) When a Court imposes a sentence, of which fine does
not form a Part, the Court may, \Vhen 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.
( 4) An onicr under this section may also be made by an
Appellate Court or by the High Court or Court of Sessions
when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall
take into account any sum paid or recovered as compensation under this section."
Clauses (a), (b) and (d) of s. 357(1) need not be considered
firstly because the High Court has passed the order of compensation
under cl. ( c) and secondly because those clauses have no application.
No order having been passed by the High Court for
defraying the
expenses incmred in the prosecution cl. (a) does not come for consideration.
Clause (b) has no application to cases in which the heirs
of a person whose death has been caused apply for compensation
because that clause deals with the payment of compensation to
the
very person to whom any loss or injury has been caused as a result
of the offence committed against him or his property and when compensation is recoverable by such person in a Civil Court.
Clause
( d) deals with a different Class of cases
altogether and need not
detain us.
Clause (c) of s. 357(1) under which the High Court has passed
the order for compensation enables the Court to direct that the whole
or any part of the fine recovered may be applied in paying compensation to the persons who are under the Fatal Accidents Act, 1855
entitled to recover damages from the person sentenced for the loss
resulting to them from the death of the person whose heirs, as described in the Act nf 1855, they claim to be.
Since under the Act of
1855, persons who may be compensated are the wife, husband, parent
(including grand-parents) and child (including grand-children
and
step-children), the application filed in the High Court was maintainable at the instance of the son and daughters of the deceased.
It cannot however be overlooked that the order for compensation
can be passed under s. 357(l)(c) only when "a Court imposes a
'~ntence of fine or a sentence (including a sentence of death)
of
which fine forms a part".
We are concerned in this appeal to examine primarily the legality and
propriety of the
sentence of fine
imposed by the High Court because upon that would depend the efficacy and indeed the very existence of the order for payment of compensation to the heirs of the deceased.
The compensation, as
10-240SCI 177
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[1977] 3 S.C.!L
provided in the section, has to come out of the fine. Therefore, if on a
proper application of the principles of sentencing, the fine imposed by
the High Court is found to be excessive and has therefore to be
reduced, the order regarding the payment of compensation must suffer
a corresponding variation.
There can be no doubt that for the offence of murder Courts have
the power to impose a sentence of fine under s. 302 of the Penal Code.
That section provides that whoever commits murder shall be punished
with death, or imprisonment for life, and "shall also be liable to fine''.
That is why section 357 (!) of the Code speaks
of "a sentence
(including a sentence of death) of which fine forms a part.''
That is
only an instance of the practical application of s. 302 under which
not only a sentence of imprisonment for life but even a sentence of
death can legitimately be combined with a sentence of fine.
But legitimacy is not to be confused with propriety and the fact
that the Court possesses a certain power does not mean that it must
always exercise it. Though, therefore, the High Court had, the
power to impose on the appellant a sentence of fine alongwith the
sentence of life imprisonment the question still arises whether a sentence of fine of Rs. 20,0001- is justified in the circumstances of the
case.
Economic offences are generally visited
with heavy
fines
because an offender who has enriched himself unconscionably
or
unjnstifiably by violating economic laws fan be assumed legitimately
to J'OSsess the means to pay that fine.
I-le must disgorge his ill-gotten
wealth.
But quite different
considerations would, in the generality
ol cases, apply to matters of the present kind.
Thought there
is
power to combine a sentence of death with a sentence of fine
that
power in sparingly exercised because the sentence of death is
an
extreme penalty to impose and adding to that grave penalty a sentence
of fine is hardly calculated to serve any social purpose.
In fact the
common trend of sentencing is that even a sentence of life imprisonment is seldom combined with a heavy sentence of fine.
We cannot,
of course, go so far as to express approval of the unqualified view
taken in some of the cases that a sentence of fine for an offence of
murder is wholly "inapposite" (See, for example, State v. Pandurang
Shinde('), but before imposing the sentence of fine, particnlarly
a
heavy fine, alongwith the sentence of death or life imprisonment, one
must pause to consider whether the sentence of fine is at all called fat"
and if so, what is a proper or adequate fine to impose in the circumstances of the case. As observed by this Court in Adam Ji Umar Dalal v.
The State of Bombay,(') determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can
be laid down, it being a matter of discretion which is to be guided. by
a variety of considerations but the court must always bear in mmd
the necessity of maintaining a proportion between the offence and the
penalty proposed fo~ it.
Speaking for .th~ Court Mahajan J. observed
in that case that : "m imposmg a fme it 1s nec0ssary to have as mnch
regard to the pecuniary circumstances of the accused persons as to the
(1) A.LR. [19561 Born 711, 714.
(2) [1952] S.C.R. 172.
ll
PALANIAPPA GOUNDER v. TAMIL NADU (Chandrachud, J.)
J 31
character and magnitude of the offence, and where a substantial term
of imprisomnent is inflicted, an excessive fine should not accompany
it except in exceptional cases" (p. 177).
Though that case related
to an economic offence, this Court reduced the sentence of fine from
Rs. 42,3001- to Rs 4,000/- on the ground that due regard was not
paid by the lower Court to the principles governing the imposition of
a sentence of fine.
The High Court imposed in the instant case a fine of Rs. 20,000/-
on the ground that "the deceased was aged about 48 years am! was
actively supervising the cultivation of the family lands and would have
Jived for another 15 to 20 years with his abilities in tact, and the Jo,;s
to the dependents, viz., the son and daughters would be about Rs.
20,000/-".
Except for the bald and bare statements contaiJ!ed
in
the petition for compensation filed by the heirs of the deceased, there
is no warrant for the assumption made by the High Court as regards
the retention of "abilities in tact" or as regards the extent of "loss to
the dependents".
It appears to us that the High Court first considered what compensation ought to be awarded to the heirs of the deceased r,nd then
imposed by way of fine an amount which was higher than the c.1111pensation because the compensation has to come out of the amount
of fine.
Apart from the fact that even the compensation was
not
fixed on any reliable data, the High Court, with respect, put the c:art
before the horse in leaving the propriety of fine to depend upon the
amount of compensation.
The first concern of the Court, after recording an order of conviction, ought to be to determine the proper sentence to pass.
The sentence must be proportionate to the nature of
the offence and the sentence, including the sentence of fine, must not
be unduly excessive.-
In fact, the primary object of imposing a
fine is not to ensure that the offender will undergo the sentcn<:e in default of poyment of fine but to see that the fine is realized, which can
happen only when the fine is not unduly excessive having regard to all
the circumstances of the case, including the means of the offender.
Sect:on 357 (I) ( c) of the new Code corresponds to s.545 (I) (bb)
of the Code of 1898 which was introduced by s. 110 of Amending
Act 26 of 1955.
The statement of objects and reasons of that Act
shows that the Joint Committee took the view that, in suitable cases,
the person who causes death should compensate the heirs and dependents of the deceased for the loss resulting from the death.
The
Joint Committee was in full agreement with the view that in a case
where death has resulte<l from
homicide, the Court should
award
compensation to the he'rs of the deceased because that would result
"in settling the claim once for all by doing away with the need for a
further claim in a civil
Court, needless worry and
expense to both
sides of the party".
The views of the Joint Committee incorporated
in the Statement of Objects and Reasons to the Amending Act of 1955
arc undoubtedly entitled to consideration but those views only reflect
that there should reside in the criminal Court the power in aoprooriate
cases to pass an order of compensation in favour of the he'rs cf the
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deceased.
It cannot, however, be overlooked that since by s. 357
(1) (c) of the new Code and its precursor, s. 545(1) (bb) of the old
Code, compensation can only come out of fine, it is always necessary
to consider in the first instance whether the sentence of fine is at all
called for, particularly when the offender is sentenced to death or life
imprisonment.
If so, the fine must not be excessive, having regard
to all the circumstances of the case like motivation of the offence, the
pecuniary gain likely to have been made by the offender by committing
the offence and his means to pay the fine.
The High Court, instead of applying its mind to
these factors,
considered only what compensation the heirs of the deceased ought to
receive.
And that question it decided on inadequate data.
In view
of the fact that the appellant was under the sentence of death since
its imposition by the Sessions Court and its reduction to life imprisonment by the High Court and since a sentence of life imprisonment has
been imposed on the appellant, that being the only other sentence
permissible under the law, the fine of Rs. 20,000 imposed by the High
Court seems to us unduly excessive.
In the circumstances we reduce
it to a sum of Rs. 3,0001- and direct that the fine or so much of it as
is recovered shall be paid to the son and daughters of the deceased
who had filed the petition in that behalf in the High Court.
S.R.
Appeal allowed in purl.