(1.) During my recent visit to the Court of the District Magistrate,. Trivandrum, it came to my notice that in Calendar Case No. 92 of 1965, decided on July, 11, 1967, on a complaint instituted by the Drugs Inspector, Special Intelligence Branch, Trivandrum - 3, and prosecuted through an Assistant Public Prosecutor, the District Magistrate has fined the accused 1 and 2 Rs. 250/- each, and the 5th accused Rs. 350/-, and ordered further:
"Out of the fine of Rs. 850/- realised from the accused, fifty per cent namely Rs. 425/- will be paid to P. W. 1 towards expenses of the prosecution under S.545(1)(a) of the Code of Criminal Procedure."
As the order appeared unwarranted, notice was issued to the Drugs Inspector "to show cause why the order under S.545(1)(a) .. should not be set aside", and in response thereto he has entered appearance through Shri C. J. Antony, Government Counsel, and been heard.
(2.) The efficacy of a law and its social utility depend largely on the manner and the extent of its application by the Courts. A good law badly administered may violate its social purpose, and if overlooked in practice fail in purpose and utility. It is a sad fact that this Section is seldom taken note of by the magistracy in this State and I had occasion to tell some magistrates that this Section has a social purpose to serve and has to be applied in appropriate cases. Indeed, the primary purpose of criminal justice may be not the adjustment of economic relations, but the administration of sanctions against individual offenders, ranging from monetary fines to long prison terms and, in extreme cases, capital punishment. But it cannot be said that the adjustment of financial losses is not the concern of criminal law at all. S.545 Crl P. C. expressly provides for that, as it reads:
"545. Power of Court to pay expenses or compensation out of fine.-- (1) Whenever under any law in force for the time being a Criminal Court, imposes a fine or confirms in appeal revision or otherwise 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 expanses properly incurred in the prosecution,
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when substantial compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(bb) 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 (XIII of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(c) 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 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.
(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."
Even though punishments with fine are not rare in the subordinate Courts, the propriety of awarding costs of the prosecution or the necessity of awarding compensation for loss or injury caused by the offence to the victim or his relatives when he is no more, has seldom attracted the attention of the magistracy in the State.
(3.) The instant case is one of the misapplication of the S.545 Crl. P. C. The order of the District Magistrate is to pay the complainant, Drugs Inspector, Rs. 425 "towards expenses of the prosecution''. He does not appear to have adverted to the factum of any expenditure on the part of the complainant; but directs 50% of the fine to be paid to the Drugs Inspector. Counsel for the Drugs Inspector frankly conceded that little expense has been met by the Drugs Inspector in the prosecution of this case, which came by way of his official function, and has been conducted through a Public Prosecutor. The Section requires the Magistrate to award, out of the fine realised, "expenses properly incurred in the prosecution." Needless to say that if the Drugs Inspector has not met any expense out of his pocket, he is not entitled to any compensation under S.545(1)(a) Crl. P.C.;