Mohamed Dastagir Vs. The State of
Madras  INSC 33 (26 February 1960)
IMAM, SYED JAFFER SINHA, BHUVNESHWAR P.(CJ)
CITATION: 1960 AIR 756 1960 SCR (3) 116
CITATOR INFO :
RF 1961 SC 29 (22) R 1961 SC1808 (14) RF 1981
SC 379 (62)
Fundamental Right-Protection against
conviction-Police Officer refusing offer of bribe, but asking accused to
produce notes-Such Production, if under compulsionConviction 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.
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 asking the accused to produce the currency notes, and (2) whether
the provisions of s. 422 of the Code of Criminal Procedure, had not been
complied with because notice of the appeal had not been served on the
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
M. P. Sharma v. Satish Chandra and others, 
(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.
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
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. Kaliyappan 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 SubInspector 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 milkmaid 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. 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
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
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 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 circumstances
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
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
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 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
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 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 evidence,
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 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. Consequently, 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
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.