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PETITIONER: MOHAMED DASTAGIR

       Vs.

RESPONDENT: THE STATE OF MADRAS

DATE OF JUDGMENT: 26/02/1960

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. WANCHOO, K.N. SHAH, J.C.

CITATION:  1960 AIR  756            1960 SCR  (3) 116  CITATOR INFO :  RF         1961 SC  29  (22)  R          1961 SC1808  (14)  RF         1981 SC 379  (62)

ACT:        Fundamental   Right-Protection   against   conviction-Police        Officer  refusing  offer  of bribe, but  asking  accused  to        produce   notes-Such   Production,  if   under   compulsion-        Conviction  based  on  such  notes-Validity-Constitution  if        India, Art. 20 (3).  Appeal against acquittal-Appearance  by        Counsel  for  accused  in appeal-Non-service  of  notice  on        accused, if vitiates conviction-Code of Criminal  Procedure,        1898 (Act V of 1898,) S. 422.

HEADNOTE: The appellant was tried by the Special judge Tiruchirappalli under  s. 165A of Indian Penal Code for attempting to  bribe K, a Deputy Superintendent of Police.  The prosecution  case was  that  in  connection  with  the.investigation  by   the Inspector  of Police of a case involving the appellant,  the latter  went to K’s bungalow and presented to him  a  closed envelope, that when K found that it contained currency notes he  threw  it  away  which the  appellant  picked  up,  that thereupon  K  asked the appellant to  produce  the  currency notes and the appellant complied with the demand that K then gave  information to a Magistrate about the attempt made  by the  appellant  to  offer him a bribe.   The  Special  judge acquitted the appellant.  On appeal, the High Court accepted the prosecution case and convicted the accused.  In the High Court  Counsel for the appellant entered  appearance  before notice  of  appeal  under s. 422 of  the  Code  of  Criminal Procedure  was issued to the appellant and when  the  appeal was  ready for hearing intimation was given under the  rules to  the Special judge to communicate to the appellant  about the   appeal   filed  against  him.    The   questions   for determination  were  (1) whether the protection  under  Art. 20(3) of the Constitution of India had been violated by ask- ing  the  accused  to produce the currency  notes,  and  (2) whether  the  provisions of s. 422 of the Code  of  Criminal

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Procedure, had not been complied with because notice of  the appeal had not been served on the appellant. Held,  (i) that there was no contravention of Art. 20(3)  as the appellant was not in the position of a person accused of an  offence when he was asked to produce the currency  notes and that, in any case, on the facts proved the appellant was not compelled to be a witness against him. M.   P.  Sharma v. Satish Chandra and others, [1954]  S.C.R. 1077. considered. (2)  that in an appeal under s. 4I7 Of the Code of  Criminal Procedure under S. 422 notice of the appeal has to be  given to the accused, but where, as in the present case, the  High Court  found  on  the facts that  the  appellant  was  fully apprised of the time and place at which the appeal would  be heard, and counsel 117 appeared on his behalf and argued the appeal the fact that a formal notice of the appeal was not served on him would  not vitiate the conviction.

JUDGMENT:        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 137  of        1957.        Appeal  from the judgment and order dated October 31,  1956,        of the Madras High Court in Criminal Appeal No. 20/1956.  B.        Dadachanji,        C. B. Aggarwala , S. N. Andley, J., Rameshwar Nath and P. L.        Vohra,  for the appellant. R. Ganapathy Iyer and T. M.  Sen,        for the respondent.        C.   K. Daphtary, Solicitor-General of India, H. J. Umrigar_        and T. M. Sen, for the Intervener (Union of India).        1960, February, 26.  The Judgment of the Court was delivered        by        IMAM,  J.-This is an appeal on a certificate granted by  the        High Court of Madras.        The   appellant   was  tried  by  the   Special   Judge   of        Tiruchirappalli  under s. 165A of the Indian Penal Code  for        attempting to bribe Mr. Kaliyappan, Deputy Superintendent of        Police  of  Ramanathapuram.  The Special Judge came  to  the        conclusion  that the charge framed against the  accused  had        not   been  established.   He  accordingly,  acquitted   the        appellant.   Against  the order of acquittal  the  State  of        Madras appealed to the High Court of Madras under s. 417  of        the Code of Criminal Procedure.  The High Court came to  the        conclusion that the evidence established that the  appellant        had  attempted to bribe the aforesaid Deputy  Superintendent        of Police.  It accordingly convicted the appellant under  s.        165A,  Indian  Penal  Code and sentenced him  to  6  month’s        rigorous  imprisonment and a fine of Rs. 1,000, in  default,        to undergo further rigorous imprisonment for 6 months.        According  to the prosecution case, the appellant  attempted        to  bribe  Mr.  Kaliyappan,  the  Deputy  Superintendent  of        Police,  by  offering  him a Bum of money  contained  in  an        envelope  at his bungalow in the morning of June  14,  1954.        In order to appreciate the circumstances in which the  bribe        was  offered, reference to certain events which led  to  the        incident        118        on  June 14 at the bungalow of the Deputy Superintendent  of        Police  becomes necessary.  In village Irwadi there are  two        factions one headed by the appellant and his brother and the        other  headed by the village munsif.  On June 3,  1954,  two        complaints reached the Keelakarai Police Station, one by the

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      appellant  against the village munsif and the other  by  the        village  munsif  against the appellant.   According  to  the        appellant  on June 3, 1954 after prayers in the  mosque  the        village  munsif had abused him and had attempted  to  murder        him with a knife.  Some persons intervened but he managed to        escape  but was chased by the village munsif to  his  house.        The version of the village munsif was that he was busy  that        day preparing the receipt for the release of the appellant’s        impounded  cattle when the latter abused him, beat him  with        his  shoe  and  kicked  him in  the  stomach  causing  minor        injuries.  On June 5, 1954, the appellant met Mr. Kaliyappan        at the Central Bus-stand at Madurai and handed over to him a        petition,  Ext.   P-1  in which he  complained  against  the        village munsif.  Mr. Kalivappan made ail endorsement on this        petition directing the Inspector of Ramanathapuram Circle to        send  for both the parties and warn them against doing  acts        which would create a breach of the peace in the village  and        that  this petition was not to be sent to the  Sub-Inspector        (P.W.  8) as it was alleged that he was siding  against  the        appellant.   On  June 12, 1954, Mr. Kaliyappan sent  a  memo        (Ext.   P-2)  to  the  Inspector  of  Ramanathapuram  Circle        directing him to take steps to see that peace was  preserved        in the village.  This Police Officer ’Was also asked to take        action against the offenders with respect to whom there  was        evidence in connection with the occurrence of June 3,  1954.        Mr. Kaliyappan also, in view of the situation, had  directed        this Police Officer to see whether steps should not be taken        to seize the revolver of the appellant’s brother Rashid  for        which  he  had a licence.  The Inspector  of  Ramanathapuram        Circle thereafter prepared a detailed report (Ext.  P-7)  of        the  result of his enquiry and handed it over to  Mr.  Kali-        yappan on June 13, 1954.  On the night of June 13, 1954,  at        about 10 p.m. the appellant went to the        119        bungalow  of  Mr. Kaliyappan, the Deputy  Superintendent  of        Police,   at  Ramanathapuram  and  complained  against   the        Inspector  of Police of Ramanathapuram Circle and  the  Sub-        Inspector  requesting the s Deputy Superintendent of  Police        to  look  into the matter personally and not  to  leave  the        investigation  exclusively  in the hands of  the  Inspector.        Mr. Kaliyappan told the appellant that he knew nothing about        the case and could not say or do anything off hand and  that        the  appellant  should see him about a week later  by  which        time  he  would have perused the record and would  be  in  a        position  to  look into his grievances.   According  to  the        appellant, however, the Deputy Superintendent of Police  had        asked him to come to him next morning.        On  June  14,  1954,  according  to  the  prosecution,   the        appellant  went to Mr. Kaliyappan’s bungalow at  about  7-15        a.m.  who was at that time looking into certain papers.   He        was  informed  that  a visitor bad come  to  see  him.   The        appellant accordingly entered his office room when he  again        complained  to the Deputy Superintendent of  Police  against        the  village munsif.  At the same time he presented to  this        Police  Officer a closed envelope.  Mr.  Kaliyappan  thought        that the envelope contained a petition but on opening it  he        found  that it contained currency notes.  He was annoyed  at        the conduct of the appellant.  He threw the envelope at  the        appellant’s  face, but the envelope fell down on  the  floor        and  the appellant picked it up.  The Deputy  Superintendent        of  Police  called his office orderly but as  there  was  no        response  he went out of the office room and told his  milk-        maid to get the camp clerk.  By that time the orderly turned        up.   The  appellant  had in the meantime  remained  in  the        office  room  and  on  the appearance  of  the  orderly  Mr.

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      Kaliyappan asked the appellant to produce the envelope which        he  had thrown down and which the appellant had  picked  up.        The  appellant after taking out of his pocket some  currency        notes  placed  them  on  the  table  without  the  envelope.        Subsequently, during the police investigation, torn bits  of        paper  were collected from near the office window and it  is        alleged that those torn bits of paper        120        were the pieces of the envelope in which the currency  notes        were   presented   to  Mr.  Kaliyappan.    Thereafter,   Mr.        Kaliyappan asked his orderly to put office rubber stamp date        seal  on the notes and the same was done.  By that time  the        camp  clerk, P.W. 2 had arrived.  Mr. Kaliyappan  asked  the        camp  clerk to note down the numbers of the  currency  notes        which  he  did.   The list so prepared is  Ext.   P-4.   Mr.        Kaliappan  then dictated the memo.  Ext.  P-5 to  the  local        Sub-Magistrate  informing the latter that the appellant  bad        offered  him  Rs. 500 in currency notes  requesting  him  to        "drop action" registered against the appellant at Keelakarai        Police  Station.  Mr. Kaliyappan informed the Magistrate  in        this  connection that he had seized the currency  notes  and        his  office  rubber stamp seal had been placed on  them  and        that he would be grateful to the Magistrate if he would come        to his office and record the statement of the appellant whom        he had detained in his office.        The  case  of  the  appellant,  as  would  appear  from  his        statement to the Special Judge, was that he had been to  Mr.        Kaliyappan,  the  Deputy Superintendent of  Police,  in  the        night  of June 13, 1954, and in the morning at 7-15 a.m.  on        June  14,1954.  He had gone to Mr. Kaliyappan’s bungalow  in        the  morning of June 14 as he bad been requested to  do  so.        He had told the Deputy Superintendent of Police that he  had        been humiliated by his Police Officers who had arrested  him        and  had searched his house and that Mr.  Kaliyappan  should        redress  his  grievances.  Mr. Kaliyappan showed  him  scant        courtesy and insulted him upon which the appellant told  Mr.        Kaliyappan  not  to insult him and that he should  tell  the        appellant  whether  he would redress the grievances  of  the        appellant or not and that if he was not prepared to  redress        the  grievances, the appellant would take the matter to  the        higher authorities.  On this Mr. Kaliyappan got up from  his        chair  and  enquired of the appellant what could  he  do  by        going  to the higher authorities and threatened to beat  the        appellant.  The appellant also got up and said something  to        him  upon which Mr. Kaliyappan called out for  his  orderly.        The orderly came and was told by Mr. Kaliyappan        121        that  he  was  going  to be  beaten  by  the  appellant  and        therefore  he should catch hold of the appellant  which  the        orderly  did.   Then Mr. Kaliyappan told the  orderly’  that        there was money in the appellant’s pocket and that he should        remove  it.  The orderly accordingly removed the money  from        the  appellant’s pocket and gave it to Mr. Kaliyappan.   The        money  in  his  pocket was Rs.  500.   Mr.  Kaliyappan  then        directed his orderly to put his seal on the notes.        The Special Judge gave various reasons for not accepting the        uncorroborated  testimony  of Mr. Kaliyappan and  held  that        ’the  presumption  of the innocence of the accused  had  not        been  displaced by his solitary testimony.  The  High  Court        did not consider the grounds given by the Special Judge  for        discarding  the  testimony  of  Mr.  Kaliyappan  as  at  all        justified and was of the opinion that the Special Judge  had        taken  a  perverse  view of his evidence and  of  the  other        evidence in the case.        In  the main three points were urged in support of the  plea

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      that  the conviction of the appellant should be  set  aside.        The  first point urged was that the provisions of s. 422  of        the Code of Criminal Procedure had riot been complied  with.        Accordingly  the  High  Court  judgment  setting  aside  the        acquittal  of the appellant was vitiated.  The second  point        urged  was that, there had been violation of the  provisions        of  Art.  20(3)  of  the  Constitution  which  vitiated  the        conviction.   The third point urged was that  the  appellant        having  been acquitted by the Special Judge the  High  Court        should  not have set aside the acquittal unless  there  were        compelling  reasons.   The  several grounds  stated  by  the        Special Judge in distrusting the evidence of Mr.  Kaliyappan        had  not been specifically considered by the High Court  and        without  those grounds being displaced the High Court  erred        in  setting  aside  the order of  acquittal  passed  by  the        Special  Judge.   Lastly, it was urged that in  the  circum-        stances of the present case the sentence passed by the  High        Court  was  severe.  The circumstances relied upon  in  this        connection will be stated in due course.        Regarding  the  first point a few facts have to  be  stated.        The State’s appeal against the acquittal of        122        the appellant was admitted by the High Court on February 22,        1956.   Appearince. on behalf of the appellant was filed  on        February 24, 1956.  The advocates for the appellant ere M/s.        V.  L. Ethiraj and S. M. Cassim.  One Mr. R.,  Santanamn  an        ’advocate  who  worked in the office of the  partnership  of        M/s.   V. L. Ethiraj & V. T. Rangaswami Ayyangar,  wrote  to        the High Court office on February 27, 1956, requesting  that        summons  need not be issued and compliance with rule 240  A,        Criminal Rules of Practice, might be dispensed with, in view        of  the  appearance for the appellant having been  filed  on        February 24, 1956.  As appearance had been entered on behalf        of  the  appellant even before the issue of notice  to  him,        notice  under s. 422 of the Code of Criminal  Procedure  was        issued  by  the Court on March 5, 1956, to M/s  Ethiraj  and        Cassim,  advocates for the appellant on the records  of  the        High  Court.   After the appeal was ready  for  hearing  the        usual intimation under rule 240A was also sent on  September        4,  1956,  to the Special Judge, Tiruchirappalli  for  being        communicated to the appellant as it was the practice of  the        High Court not to dispense with altogether the issue of such        intimation under any circumstance.  Mr. Ethiraj appeared for        the  appellant  at  the  hearing  of  the  appeal  and  made        submissions on questions of fact as well as on questions  of        law before the learned Judge of the High Court who heard the        appeal.  It was contended for the appellant that the  of the appeal filed  by        the State against his acquittal because if the acquittal was        set   aside   and  the  appellant  was   sentenced   serious        consequences would arise.        As to the second submission, Art. 20 (3) of the Constitution        states  :  "No  person  accused  of  any  offence  shall  be        compelled  to  be a witness against himself ".  Before  this        provision of the Constitution comes into play two facts have        to  be established (1) that the individual concerned  was  a        person  accused of an offence and (2) that he was  compelled        to be a witness against himself.  If only one of these facts        and  not the other is established, the requirements of  Art.        20(3) will not be fulfilled.  It was, however, urged that on        the facts the appellant must be regarded as a person who was        accused of an offence at the time that Mr. Kaliyappan  asked        him  to  produce the money.  The circumstances  also  showed        that the appellant did so on compulsion.  He was at the time        within the power of the Deputy Superintendent of Police  and        was compelled to comply with his direction.  Mr.  Kaliyappan

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      being of the rank of a Deputy Superintendent of Police could        himself  make  the  investigation.   The  offence  had  been        committed  in  his  presence and the appellant  was  in  the        situation  of an arrested person, Reliance was  placed  upon        the decision of this Court in M. P. Sharma v. Satish Chandra        and  Others  (1)  in  support  of  the  proposition  that  a        compelled  production of incriminating document by a  person        during police investigation is testimonial compulsion within        the  meaning  of Art. 20 (3) of the Constitution.   In  that        case, this Court had observed at p. 1088;        "  Indeed,  every positive volitional  act  which  furnishes        evidence is testimony, and testimonial        (1)  (1954] S.C.R. 1077.        126        compulsion  connotes  coercion which procures  the  positive        volitional evidentiary acts of the person, as opposed to the        negative attitude of silence or submission on his part.  Nor        is there any reason to think that the protection in  respect        of  the evidence so procured is confined to what  transpires        at the trial in     the court-room.  The phrase used in Art.        20 (3) is to be a witness " and not to " appear as a witness   It        follows that the protection afforded to an accused in so far        as  it  is related to the phrase "to be a witness "  is  not        merely  in  respect of testimonial compulsion in  the  court        room  but may well extend to compelled testimony  previously        obtained  from him.  It is available therefore to  a  person        against whom a formal accusation relating to the  commission        of  an offence has been levelled which in the normal  course        may result in prosecution.  Whether it is available to other        persons  in other situations does not call for  decision  in        this case.        Considered  in  this light, the guarantee under  Art.  20(3)        would  be available in the present cases  these  petitioners        against whom a First Information Report has been recorded as        accused therein.  It would extend to any compulsory  process        for production of evidentiary documents which are reasonably        likely to support a prosecution against them."        These observations were unnecessary in Sharma’s case, having        regard to the fact that this Court held that the seizure  of        documents  on a search warrant was not  unconstitutional  as        that  would  not  amount  to  a  compulsory  production   of        incriminating  evidence.  In the present case, even on  what        was  stated in Sharma’s case there was no formal  accusation        against  the  appellant  relating to the  commission  of  an        offence.  Mr. Kaliyappan had clearly stated that he was  not        doing  any  investigation.   It does  not  appear  from  his        evidence  that he had even accused the appellant  of  having        committed  any offence.  Even if it were to be assumed  that        the  appellant  was  a  person accused  of  an  offence  the        circumstances  do  not establish that he  was  compelled  to        produce  the money which he had on his person.  No doubt  he        was asked to do so.  It        127        was, however, within his power to refuse to comply with  Mr.        Kaliyappan’s request.  In our opinion, the facts established        in  the  present  case  show  that  the  appellant  was  not        compelled to produce the currency notes and therefore do not        attract the provisions of Art. 20(3) of the Constitution.        As to the 3rd point, we have read the evidence in the  case,        the judgments of the Special Judge and of the High Court and        have no hesitation in saying that the High Court’s view that        the  judgment of the Special Judge was perverse is  correct.        This  is  an  appeal on a certificate and  the  findings  on        questions  of fact are not concurrent.  Accordingly, we  can        form  our own conclusions irrespective of the grounds  given

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      by  the High Court for believing that the grounds  given  by        the Special Judge for distrusting Kaliyappan’s evidence were        perverse.   Those grounds have, however, been placed  before        us  and after a careful examination of them we have come  to        the  conclusion that the grounds given by the Special  Judge        for distrusting Mr. Kaliyappan’s evidence are perverse.   It        was  suggested that the documentary evidence and the  manner        in which Mr. Kaliyappan gave his evidence indicated that  in        the quarrel between the village munsif and the appellant  he        was siding with the village munsif.  Assuming that to be so,        though  we make it quite clear that we do not hold it to  be        so,  it is impossible to believe that Mr.  Kaliyappan  would        have  concocted  a  false case of an  attempt  made  by  the        appellant  to  bribe him if he had not (lone so.   He  could        have  quite easily told the appellant to leave his  bungalow        without  concocting  a false case against him.   If  he  was        siding  with the village munsif he could have as easily  got        his  subordinate Police Officers to report that the  village        munsif’s  story  was true and that the appellant  should  be        prosecuted.  There seems -to be no occasion for him to  have        made  an  elaborate story of an attempt on the part  of  the        appellant to bribe him when, in fact, the appellant had done        nothing of the kind.. A great deal’ of emphasis -was laid on        the  fact that in the information which Mr. Kaliyappan  sent        to  the  Magistrate he had made no mention  of  money  being        offered to him in an        128        envelope  and that the torn bits of paper found outside  the        window of Mr. Kaliyappan’s office were not proved to be part        of the envelope in which the bribe had been offered and that        it  was also not at all clear that the Rs. 500 found on  the        person  of  the appellant were actually the  currency  notes        offered  to  Mr.  Kaliyappan  as bribe.   It  seems  to  us,        however,  that too much emphasis has been laid on all  this.        Mr.  Kaliyappan had certainly alleged in his information  to        the Magistrate that the appellant had offered him a bribe of        Rs.  500.   Whether  that was the sum  in  the  envelope  or        whether  it had been offered in an envelope was  beside  the        point.  The important question for consideration was whether        Mr.  Kaliyappan had been offered a bribe by  the  appellant.        For that purpose it was a relevant circumstance that in fact        on his person the appellant had a sum of Rs. 500 and that if        Mr.  Kaliyappan’s story was true that it was offered  in  an        envelope,  no envelope was produced with the currency  notes        of  Rs.  500 which were placed on the table.  On  the  other        hand,  torn bits of paper which could form an envelope  were        found  outside  the Window of the room where the  bribe  had        been  offered.  It seems to us on a careful reading  of  Mr.        Kaliyappan’s  evidence  that he had substantially  told  the        truth and that there was no real reason for him to concoct a        false  case  against  the appellant, Having  regard  to  the        circumstances. in which the bribe was offered, corroboration        of  his evidence in that respect could hardly  be  expected.        His conduct, however, throughout showed that he had acted in        a  bona fide manner.  After a careful consideration  of  his        evidence and of the circumstances established in the case we        entirely  agree with the High Court that there was  no  real        ground  upon which his evidencc, could be  disbelieved.   In        the circumstances, the High Court was entirely justified  in        acting upon it and setting aside the order of acquittal made        by the Special Judge.        Lastly, on the question of sentence, it may be  mentioned at        once  that on the second day of the hearing of this  appeal,        learned  Advocate for the appellant stated that  his  client        threw himself at the mercy of Court and apologized for  what

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      had happened.  The        129        learned Advocate further urged that the appellant, though an        Indian citizen, was carrying on business in Burma and had  a        visa from the Burmese Government for permanent residence and        that  unless  he returned to Burma by the 2nd  of  March  by        would  lose the benefit of the visa and would no  longer  be        allowed to reside in Burma as a permanent resident.   Conse-        quently,  he would lose his entire business and property  in        that  country  which  ’Would  be a  severe  penalty  if  his        sentence of imprisonment was upheld.  It is also pointed out        that on two occasions this Court on this very ground, on the        appellant  furnishing security and giving an undertaking  to        return  to this country, had allowed him to go to  Burma  in        order  that he might not contravene the conditions  of  ’his        visa.   It  was further pointed out that the  incident  took        place  in  June, 1954, some 5 years and  eight  months  ago.        Even  a  substantial  fine  in  lieu  of  the  sentence   of        imprisonment would be sufficient punishment and a  deterrent        to the appellant.  We have given the matter of sentence  our        anxious  consideration.   It  seems,  prima  facie,  that  a        sentence  of  6 months’ imprisonment and fine of  Rs.  1,000        could  not be said to be severe for an offence of  the  kind        established   against  the  appellant.   The   circumstances        mentioned  above,  if  correct, in  plea  of  mitigation  of        sentence may attract attention but so far as a court of  law        is  concerned, judicially, it is impossible to say that  the        sentence imposed by the High Court is severe in a case where        there  had been an attempt to corrupt a  responsible  public        servant.        The appeal is accordingly dismissed.        Appeal dismissed.        17        130