# SUPREME COURT R,EPORTS [1960) MOHAMED DASTAGIR v. THE STATE OF MADRAS

- **Citation:** [1960] 3 S.C.R. 116
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Criminal v. Appeal No. 137 of 1957
- **Bench:** B. P. SINHA. c. J, Jafer Imam, A. K. Sahkar, K. N. W Anchoo, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-r-eports-1960-mohamed-dastagir-v-the-state-of-madras-1818
- **Pages:** 14

## Headnote

Fundamental Right-Protection against conviction-Police Officer
refusing offer of bribe, but nshing accused to produce notes-Such production, if under compulsion-Conviction based on such notcsV alidity-Constitution of India, Art. 20 (J). Apj>eal against acqu.ittal-Appearancc by Counsel for accused in appeal-Non-service of
notice· on accused, ifkvitiates conviction-Code of Criminal Procedure,
I898 (Act v of I898,) s. 422.
The appellant was tried by the Special Judge Tiruchirappalli
under s. r65A 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 therulestotheSpecial judge to communicate to the appellant about the appeal filed against him. The
questions for determination-were (1) \vhether 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 \Vi th because notice of the appeal had not been
served on the appellant.
Held, (r) that there was no contravention of Art. 20(3) as the
appellant v.1as not in the position of a person accused of an
offence \vhen he v.'as 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. SatishChandra and others,[r954]S.C.R. ro77.
considered.
(2) that in an appeal under s. 417 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
-
3 S.C.R. SUPREME COURT REPORTS
117
appeared on his behalf and argued the appeal the fact that a forr960
mal notice of the appeal was not served on him would not vitiate
-
the conviction.
Mohamed Dastagir

## Text

1960
F ebru,ary 26
116
SUPREME COURT R,EPORTS
[1960)
MOHAMED DASTAGIR
v.
THE STATE OF MADRAS
(B. P. SINHA. c. J., JAFER IMAM, A. K. SAHKAR,
K. N. W ANCHOO AND J. C. SHAH. JJ)
Fundamental Right-Protection against conviction-Police Officer
refusing offer of bribe, but nshing accused to produce notes-Such production, if under compulsion-Conviction based on such notcsV alidity-Constitution of India, Art. 20 (J). Apj>eal against acqu.ittal-Appearancc by Counsel for accused in appeal-Non-service of
notice· on accused, ifkvitiates conviction-Code of Criminal Procedure,
I898 (Act v of I898,) s. 422.
The appellant was tried by the Special Judge Tiruchirappalli
under s. r65A 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 therulestotheSpecial judge to communicate to the appellant about the appeal filed against him. The
questions for determination-were (1) \vhether 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 \Vi th because notice of the appeal had not been
served on the appellant.
Held, (r) that there was no contravention of Art. 20(3) as the
appellant v.1as not in the position of a person accused of an
offence \vhen he v.'as 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. SatishChandra and others,[r954]S.C.R. ro77.
considered.
(2) that in an appeal under s. 417 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
-
3 S.C.R. SUPREME COURT REPORTS
117
appeared on his behalf and argued the appeal the fact that a forr960
mal notice of the appeal was not served on him would not vitiate
-
the conviction.
Mohamed Dastagir
CRIMINAL APPELLATE JURISDICTION: Criminal
v.
Appeal No. 137 of 1957.
State of Madras
Appeal from the judgment and order dated October 31, 1956, of the Madras High Court in Criminal
Appeal No. 20/1956.
·
C. B. Aggarwala, S. N. Andley, J.: B. Dadachanji,
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. l ,000, in default, to undergo further
rigorom1 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 sum 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
Imam].
118
SUPREME COURT Rl~PORTS
[1960]
r96o
on June 14 at the bungalow of the Deputy SuperinM h
d D
. tendent of Police becomes necessary. In village
o ame
aslagir I
d"
h
.
v
rwa I t ere are two fact10ns one headed by the
State of Madras appellant and his brother and the other headed by
the village munsif. On June 3, 1954, two complaints
Imam J.
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
attemphid 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 mun~if 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. Kaliyappan made an 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
3 S.C.R.
SUPREME COURT REPORTS
119
bungalow of Mr. Kaliyappan, the Deputy Superinz960
tendent of Police, at Ramanathapuram and com- M h
-
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. t th I
. t
f p l"
fR
th
o amedDastagzrp ame agams
e nspec or o
o rne o
_ amana av.
puram ·circle and the Sub-Inspector requesting the State of Madras
Deputy Superintendent of Police to look into the
matter personally and not to leave the investigation
Imam .I.
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. K!tliyappan's bungalow at
about 7-15 a.m. who was at that time looking ip.to
certain papers. He was informed that a visitor had
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. 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
winqow and it is alleged that those torn bits of paper
120
SUPREME COURT l~EPORTS
[1960)
z960
were the pieces of the envelope in which the currency
~ h
-;;-;;
. notes were presented to Mr. Kaliyappan. Thereafter,
.fo ame v. astag" Mr .. Kaliyappan asked his orderly to put office rubber
State of Madras stamp date seal on the notes and the same was done.
By .that time the camp clerk, P.W. 2 had arrived.
Imam J.
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 had
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 had 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. Kaliyappau
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•
...
3 S,Q.R. SUPREME COURT RRPO-RTS
121
that he was going to be beaten by the appellant and
z96o
.
therefore he should catch hold of the appellant whichM ,
-d. -D1
.
.
•
·
. 011ame
as agir
the orderly did. Then Mr. Kahyappan told the orderly
v.
that there was money in the appellant's pocket and State of.Madras
that he should remove it. The orderly according~y
removed the money from the appellant's pocket and
Imam f.
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 teasons 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 coneider
the grounds given by the Special Judge for discarding
the tes~timony of Mr. Ka.liyappan 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
he set aside. The first . point urged was that the
provisions of s. 422 of the Code of Criminal Procedure
had not been complied with. Accordingly the High
Court judgmen·t setting aside the acquittal of the
appellant was vitiated. The second point urged )Vas
that there had been violation of the provisi6ns 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 be
stated, The State's appeal agsiiinst the acquittal of
t<i
122
SUPREME COURT REPORTS
[1960]
•960
the appellant was admitted by the High Court on
-
. February 22, 1956. Appearance on behalf of the
MohamedDastagir appellant was filed on February 24, 1956. The advoState 0;~adras cates for the appellant were M/s. V. L. Ethiraj and
S. M. Cassim. One Mr. R. Santanam, an advocate
Imam J.
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 240A, 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 latter part of
s. 422 of the Code had not been complied with inasmuch as the High Court did not cause a notice of the
appeal to be given to the appellant. Reliance was
placed on certain decisions of this Court and some of
the High Courts in support of the argument that the
pr.ovisions of s. 422 of the Code were mandatory and
non-compliance thereof vitiated the judgment of the
High Court. In Criminal Appeal No. 86 of 1952,
Hanumat v. The State of Madhya Pradesh (unreported)
decided on the 13th of November, 1952, this Court set
aside the order of the High Court converting the
acquittal of the accused into one of conviction without
serving a notice on him as provided by s. 422 of the
Code of Criminal Procedure. This Court held that
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•
--
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3 S.C.R.
SUPREME COURT REPORTS
123
although a notice had been issued it was not served
Ig6o
on the accused. The accused must be accorded an
-
. -
l
c
d b
h Mohamed DastagiY
opportumty to contest an appea preierre
y t e
State Government in the High Court. The procedure state o;Madras
adopted in the High Court was bad. The case was
accordingly remanded to the High Court for rehearing
Imam J.
of the appeal in accordance with law. This decision
is of little assistance because the accused had not
been given in that case any opportunity to contest
the appeal filed by the State Government in the High
Court. Reliance was also placed on the decision of
this Cpurt in Dwarka Prasad v. The State (Criminal
Appeal No. l of 1950) (:unreported) decided on the
6th of October, 1950. In that case with reference to
s. 422 of the Code of Criminal Procedure this Court
observed that:
" The provision of the section as its language
shows, is mandatory and a compliance with it an
essential preliminary to the hearing of the appeal.
The arrest of the accused under a non-bailable
warrant cannot be the substitute of a notice of
appeal as is required under law."
In that case, however, the lawyer who appeared before
the High Court had made it clear that his appearance
was on the instruction of the father of the accused
and not on ;the instruction of the 'accused himself.
There are certain observations in the judgment of this
Court which indicate that if the lawyer concerned had
told the High Court that he was ·appearing on the
instruction of the accused _perhaps this Court would
not have interfered with the judgment of the High
. , Court on this ground alone. It would be useful to
quote what this Court had said in that case. It said:
"There is, however, no power or authority given
by the accused Dwarkaprasad to the learned Advocate and the Advocate himself does not say in his
affidavit that he received any instructions from the
accused. He was instructed, he says, to appear in
the case by Ram Lal, the father of the accused, and
on the materials before us we are not in a position
to say that it was the accused who really instructed
the Advocate through his fatpei'; it may be that
the father havfog got information of the appeal
Mohamed Dastagir
v.
State of Madras
'Imam].
124
SUPREl\IE COURT REPORTS
(1960)
from some other source thought it proptir to engage
an Advocate for the defence of his son.
As the
position is extremely obscure, we cannot but feel
that there has been a material defect in the procedure relating to the hearing of the appe[l,l by reason
of non-compliance with a mandatory provision of
the Code and this has led to a, miscarriage of justice.
His a case where the appeal was against an order
of acquittal and the appellate court having set aside
the judgment of acquittal has convicted the appellant of murder and sentenced him to death. Jn
such circumsta,nces we must be satisfied that there
was not even the possibility of the accused being
deprived of his legal right of presenting bis caoo
properly before the Appellate Tribunal."
In the case before us it is perfectly clear that the
High Court wns intimated in the clearest terms that
appearance had been entered on behalf of the appellant and two advoctttes of the High Court were
representing him, one of them an eminent advocato
of the Court. Indeed, the High Court was requested
not to issue nny summons to the appellant because
appearance had already heen entered on his behalf.
In spite of that the High Court issued notice nnder
s. 422 to Mr. Ethiraj and Mr. Cassim.
Even thereafter, the High Court took the preemution to intimaw
the Special Judge of Tiruchirappalli to inform the
accused about the appeal filed against him. In theBe
circumstances it can hardly be said that notice of the
appeal had not been given to the appellant. l:'iection
422 does not speak of the notice being served on the
appellant. It states that notice is to be given to the
accused. If, as in the "ircumstance8 of the present
case, the High Court is intimated that the :wcuged
has entered appen,rance nnd ha~-.notice of the appeal
filed against him a.ud the Court is requested not to
issue any summons to him, it can hn,rdly be said that
notice of the appeal had r.ot been given to the
accused. The High Court found ou the fac~s thnt the
appellant was fully apprised of the time and place at
which the appeal wo11ld be heard .. It was, howeveP,
urged that Mr. Ethiraj and Mr. Cassim had been
engaged by the brother· in-law of the appellant n,nd
•
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3 S.O.R.
SUPREME~ COURT REPORTS
125
riot on his instructions and that that brother-in.law
· r960
had kept the appellant in the dark. It is impossible M ha -
•
to believe this. The appellant had been acquitted.
0
me~.Dadagir
and an appeal had been filed against his acquittal. . State of Madras
It is impossible to accept the suggestion that the
brother-in-law of the appellant kept the appellant in
.. Imam J.
the dark. However much the appellant's brothe:r-inlaw may have been looking after the affairs of the
appellant in India, he could not _have failed to inform
the appellant of the appeal filed by the State agaijlst
his acquittal because if the acquittal was set aST'de
, and the appellant was sentence<l 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 againt 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 ofl:ence 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 wa,s 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. Sha!rma v. Satish Chandra and Others (1) in support of the proposition that a compelled production
of incrimiaating 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
fumishes evidencre is teistimony, and testimonial
<I) (1954] S.C.R. 1077,
..
M oliamed Dastagir
v.
State of Madras
Imam].
126
SUPREME COURT REPORTS
[1960]
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. lt is available therefore to a
person against whom a formal accusation relating
to the commission of an offence has been levelled
which in tl~e 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 Elxtend 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 <J,ny 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
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y
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3 s.c.R: SUPREME COURT REPORTS
127
was, however, within his power to refuse to comply
r96o
with Mr. Kaliyappan's request. In our opinion, the M h
d D
.
.
.
h
h
o ame
a.stagir
facts established m t e present case s ow that the
v.
appellant was not compelled to produce the currency State of Madras
notes and therefore do not attract the provisions of
Art. 20(3) of the Constitution.
Imam J.
As to the 3rd point, we have read the evidence in
the case, the judgments of the Special J11dge and of
the High Court and have no hesitation in saying
that the High Court's view that th~ judgment of the
Special Judge was ~erverse 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 aii·attempt made
by the appellant to bribe him if he had not done 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 informa.tion
which Mr. Kaliyappan !>~mt to the Magistrate he had
made no mention of money being offered to·him in an
128
SUPREME COURT REPORTS
[1960]
i96o
envelope and tl:\.at the torn bits of paper found outM ,
d 0
1
. side the window of Mr. Kaliyappan's office were not
• Mame
as agir
d
b
f h
1
.
h" I
h b . b
v.
prove to e part o t e enve ope m w IC 1 t e
r1 e
State of Madras had been offered and that it was also not at all clear
that the Rs. 500 found on the person. of the appellant
Imam 1:
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 l)oint. The important question for
consderation was whether Mr. Kaliyappan had been
offered a bribe by tho 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 eon~oct a false case against the
appellant. Having regard to the circumstances in
which the hribe was offered, corroboration of his evidence in that respect could hardly be expected. His
conduct, however, throttghout showed that he had
acted in a bona ft& 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 ma! grol'lnd upon which his evidence could
he disbelieved. In the drcumstances, the High Court
was entirely justified iu acting upon it and setting
aside the order of acquittal m[tde 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 l!>nd apologized for what had happened. Tho
-
-
,..
,
.
""
3 S.C.R. SUPREME COURT REPORTS
129
learned Advocate further urged that the appellant,
rg6o
·though an Indian citizen, .was carrying on business in M A
d D
•
Burma and had a visa from the Burmese Govern0 iame
astagir
ment for permanent residence· and that unless he State olMadras
returned to Burma by the 2nd of March he would lose
the benefit of the visa and would no longer be allowed
Imam J.
to reside in Burma. as a perma.nent resident. Consequently, he would lose his entire business and property
in that country which would be a severe penalty ifhis
sentence of imprisonment was upheld.
It is also
pointed out that on two occasions this Court on this
very ground1 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 Iieu 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 nGt be sajd to be severe for an offence of
the kind established against the appellant. The circumstanctis mentioned above, if correct, in plea of
mitigation of sentence may attract attention but so
far as a court of law is concerned, judioially, it is
·impossible to say that the sentence imposed by the
High Court is severe in a case where there had been an
atte~pt to corrupt a responsible pqblic servan~,
The appeal is accordingly dismissed.
Appeal dismissed .