[1951] EACA 330

# APPELLATE CIVIL

Before MODERA, J., WINDHAM, J. and CONNELL, Ag. J.

#### SULTANALI KURJI MEGHJI, *Appellant (Original Plaintiff)*

v

# ABSOLUM ODHIAMBO, Respondent (Original Defendant)

### Civil Appeal No. 18 of 1950

(Appeal from the decision of R. M.'s Court at Kisumu—H. G. Sherrin, Esq.)

Assault and damages—Compensation awarded in previous criminal proceedings—Whether res judicata—Penal Code section 25 and section 31—Criminal Procedure Code section 175.

The respondent pleaded guilty to assault causing bodily harm to the appellant and was ordered to pay compensation Sh. 250. The appellant filed the present suit claiming special and general damages for the same assault. The Magistrate held that the award of compensation under section 31 Penal Code operated as res judicata.

Held $(21-3-51)$ .—(1) That both the Penal Code and Criminal Procedure Code must be interpreted the one as complimentary to the other.

(2) The correct interpretation of section 175 (3) of the Criminal Procedure Code taken in conjunction with section 31 Penal Code is that the Court is at liberty to assess some compensation as a punishment but that such compensation cannot be regarded as necessarily complete.

(3) The award of compensation under section 31 did not operate (so.far as subsequent civil proceedings were concerned) as res judicata.

# $\sim$ M. H. Malik for the appellant.

Khanna for the respondent.

JUDGMENT.—On 14th November, 1949, in Cr. C. 1471/49 the respondent to the present appeal pleaded guilty before the Resident Magistrate at Kisumu to a charge of assault causing actual bodily harm to the present appellant contra section 245 Penal Code. The sentence of the Court was that the respondent was fined Sh. 250 also to pay Sh. 250 compensation to the appellant. The fine and amount of compensation were at once paid by the respondent.

On 6th January, 1950, the appellant filed a civil suit No. 7/1950 in the Resident Magistrates' Court at Kisumu claiming against the respondent Special and General Damages for the assault which had been the subject matter of the criminal charge and in the plaint credit was given for Sh. 250 compensation. which had been awarded at the hearing of the latter charge.

The respondent duly filed his defence and the case proceeded to hearing on 19th May, 1950, when it was claimed that the matter was in fact res judicata by virture of the award of compensation in the Criminal Case on 14th November, 1949.

From the record of the civil suit $(C. C. 7/1950)$ it appears that evidence for the appellant (then plaintiff) and for the respondent (then defendant) was led and that thereafter the hearing was adjourned for a ruling as to the question of res judicata.

On 23rd November, 1950, the learned Magistrate delivered his ruling upholding the contention of the respondent (defendant) and the suit was dismissed with costs. It is against this ruling and dismissal of the suit that the appellant (plaintiff) appeals to this Court which is by direction constituted of *three Judges*.

... The one and only point of substance for our decision is whether the learned. Magistrate erred in law in finding that a grant of compensation under section 31 of the Penal Code is a bar to a subsequent civil action for damages or in other words whether the awarding of compensation under that section is such a determination as to constitute a res judicata in the matter of civil redress for damages.

There can in our opinion be no shadow of doubt that any person who sustains bodily harm at the hands of another person is entitled to set in motion both the criminal and the civil law either contemporaneously or otherwise, but Mr. Khanna on behalf of the respondent maintains that there must be an election to this extent that should criminal proceedings, in which compensation is awarded, be first instituted that is the be all and end all of the redress allowed to the complainant. He bases his argument upon two submissions:-

- (a) That certain sections of the Penal Code and Criminal Procedure Code. to both of which sections we will refer are mutually exclusive. - (b) That the determination of the learned Magistrate in regard to compensation constituted a *res judicata* as far as damages are concerned.

It is manifestly clear to us that for the due administration of the Criminal Law in this Colony regard must be had to the Penal Code and the Criminal Procedure Code and that both codes must be interpreted the one as complimentary to the other.

Section 25 Penal Code postulates the punishments which may be inflicted by a Court: Payment of Compensation is one of these punishments. Section 31 Penal Code reads as follows: -

"Any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence. Any such compensation may be either in addition to or in substitution for any other punishment."

This latter section is a permissive section and does not stipulate regarding the amount of compensation whether "some" or "complete".

Section 175 Criminal Procedure Code comprises three sub-sections and reads as follows: $\rightarrow$

- "(1) Whenever any court imposes a fine, or confirms on appeal, revision or otherwise a sentence of fine, or a sentence of which a fine forms part, the court may, when passing judgment, order the whole of any part of the fine recovered to be applied— - (a) in defraying expenses properly incurred in the prosecution; $(a)$ - (b) in the payment to any person of compensation for any loss or injury $\frac{1}{2}$ caused by the offence when substantial compensation is in the opinion of the court recoverable by civil suit. - (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. - (3) 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."

The intention of these three sub-sections is in our view to give direction to the Courts in certain circumstances and the intention as expressed in each sub-section leaves no difficulty of interpretation. The sub-sections are not interdependent to the extent that sub-section (1) governs sub-section (3), as suggested by Mr. Khanna. From a perusal, however, of sub-section $(1)$ $(b)$ and of subsection (3) we are satisfied that the jurisdiction of the civil courts has not been ousted or indeed replaced by the provisions of section 31 Penal Code. Furthermore and by similar reasoning we are unable to agree that the word "compensation" in section 31 Penal Code must be interpreted as meaning "complete" or "total" compensation.

Though the wording of sub-section (3) of section 175 Criminal Procedure Code does seem to us as being more appropriate in the matter of directions to a civil rather than a criminal court, we have no doubt that the correct interpretation of the section taken as a whole in conjunction with section 31 Penal Code is that the Court is at liberty to assess some compensation as a punishment should it so deem fit, but that such compensation cannot be regarded as necessarily complete.

For similar reasons we are unable to accept the argument advanced by respondent's learned advocate that in the award of compensation under section 31 Penal Code there is a determination constituting res judicata.

Finally Mr. Khanna has urged that the appellant's remedy lay in revision under section 361 and succeeding sections of the Criminal Procedure Code, we need only say in this regard that the appellant was not the accused but the complainant and that the sections quoted here in these circumstances in our view have no application.

The appeal is allowed, the matters in dispute will be remitted to the Lower Court for determination and the appellant will have the costs of this appeal.