S.A.A. Biyabani vs The State Of Madras

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 28 May, 1954

Coram: B.K. Mukherjea, Ghulam Hasan, Jagannadhadas

In the matter styled S.A.A. Biyabani versus The State of Madras, decided on 28 May 1954, the Supreme Court of India sat with a bench consisting of Justice B.K. Mukherjea and Justice Ghulam Hasan, and the judgment was written by Justice Jagannadhadas. The case before the Court was an appeal by special leave from a decision of the High Court of Madras. The High Court had set aside the appellant’s earlier acquittal and had convicted him under Section 44 of the Madras District Police Act. The appeal therefore challenged both the reversal of the acquittal and the conviction imposed.

The appellant, identified as a native of Kurnool, held the rank of Sub-Inspector of Police in the Nellore District of the then State of Madras during the year 1948. He had entered the police service in 1932 and, by 1948, was serving as a Sub-Inspector. From 11 May to 25 June 1948 he was on sanctioned leave, during which he travelled to Cuddapah. Upon the expiry of this leave he submitted an application seeking a further extension of two months; the application was accompanied by a medical certificate and also contained a request that his salary be forwarded to the Station House Officer at Kurnool. At the time of filing the application he was eligible for leave-average pay for a period of seven months.

After receiving the appellant’s application, the District Superintendent of Police of Nellore issued a requisition to the District Medical Officer of Kurnool, directing that the appellant be examined medically. The Superintendent also ordered that the appellant appear before the District Medical Officer on 10 July 1948. The appellant received the notice of this requirement but failed to appear on the specified date. Instead, on the very day of the scheduled examination, he departed suddenly for Hyderabad. It is admitted that he remained in Hyderabad until approximately December 1948, after which he returned to Kurnool. During his absence, the Government of Madras struck his name off the police service records, treating him as a “deserter” with effect from 25 August 1948.

On 22 December 1948, while residing in Kurnool, the appellant dispatched a petition to the Inspector-General of Police, Madras, through the District Superintendent of Police, Nellore. The petition sought reinstatement to his former police position. The request for reinstatement was denied, and on that refusal the present prosecution was instituted. Consequently, a formal charge was framed against the appellant under Section 44 of the Madras District Police Act.

The appellant’s defence was articulated in a detailed explanation submitted in response to the charge. He asserted that, during the period of his sanctioned leave, his eldest son, who was about nineteen years of age, left home without his knowledge and his whereabouts could not be ascertained. In an effort to locate his son, the appellant travelled to Cuddapah, where his brother was employed as a Municipal Doctor, hoping that his brother might have information. He also conducted searches in other locations. On 10 July 1948, while still in Kurnool, he learned that his son had been sighted by a mutual acquaintance in Secunderabad. Believing that locating his son was more urgent than complying with the medical examination, he immediately proceeded to Hyderabad on the same day, foregoing the appearance before the medical officer. He expressed the intention to return from Hyderabad within a few days and thereafter appear for the required medical examination.

The appellant further explained that, upon reaching Secunderabad, he was suspected by the Razakars of being an informant for the Madras Police. As a result, he was placed under close surveillance and custody by the Razakars, which prevented him from leaving the area or maintaining communication with the police authorities. According to his account, he was only able to depart Hyderabad in December 1948. At that time, being aware that his name had been removed from the police list, he filed the reinstatement petition mentioned earlier.

The prosecution presented three witnesses to support its case, while the appellant examined fourteen witnesses in an effort to substantiate his defence. Section 44 of the Madras District Police Act, under which the appellant was charged, provides that any police officer who is guilty of a violation of duty, a willful breach or neglect of any rule, regulation or lawful order issued by a competent authority, or who ceases to perform the duties of his office without leave or without giving the two-month notice prescribed by the enactment, shall be liable to penal consequences. The Court’s analysis proceeded on the factual matrix and the statutory provisions outlined above.

In his statement the appellant described that when he travelled to Hyderabad in July 1948 he was regarded by the Razakars as a possible informant for the Madras Police. He asserted that the Razakars placed him under tight surveillance and physical custody, which prevented him from leaving the city or maintaining any contact with the police authorities. According to his account he remained confined in Hyderabad until December 1948, at which time he learned that his name had been removed from the police service list. Upon receiving that information he submitted an application seeking reinstatement to his former position.

The charge framed against the appellant was made under Section 44 of the Madras District Police Act. The prosecution presented three witnesses to support its case, while the defence called fourteen witnesses to corroborate the appellant’s explanation. Section 44 provides that any police officer who willfully violates duty, breaches or neglects any rule, regulation or lawful order issued by a competent authority, or who ceases to perform the duties of his office without leave or without giving the two-month notice prescribed by the enactment, shall, on conviction before a magistrate, be liable to a penalty not exceeding three months’ pay, imprisonment for up to three months with or without hard labour, or both. The allegation against the appellant was that he stopped performing his duties without leave and without giving the required two-month notice. The appellant admitted that he failed to report for duty and that he gave no notice, but pleaded that he was compelled by circumstances beyond his control and therefore no offence was committed. The learned sub-magistrate who heard the case held that the offence under Section 44 required an intentional refusal to perform duties without leave or notice. After evaluating the evidence, the magistrate concluded that the prosecution had not established that the appellant’s cessation was intentional. In his findings he observed that the prosecution had failed to prove that the accused intended to abscond and that it must be considered whether the accused had ceased to perform his duties of his own free will or because of circumstances beyond his control. He noted that the communal disturbances in Hyderabad were well-known facts that could be taken judicial notice of, and that even the prosecution accepted that the accused was in Hyderabad at the relevant time. The magistrate further stated that the prosecution had not satisfactorily shown why the defence evidence should be discredited. Accordingly, he gave the benefit of doubt to the appellant and acquitted him. The State appealed this acquittal, and the learned judge of the High Court observed that the entire issue hinged on whether the appellant’s explanation—that he left Hyderabad to locate his son, was detained by the Razakars, and could not leave until December 1948—should be accepted.

In this case the Court considered whether the accused’s explanation should be accepted. The explanation stated that on 10 July 1948 the accused learned that his son had been sighted at Secunderabad, and that he therefore had to leave in order to search for his son. The accused further said that when he travelled to Hyderabad he was captured by the Razakars and was unable to leave until December 1948. The learned Judge observed that the appellant offered positive testimony to support this version of events, but the Judge formed the opinion that the witnesses were not telling the truth. It is necessary to recall that the appeal before the High Court was an appeal against an acquittal. Although the High Court was certainly entitled to examine the facts and to form its own assessment of the evidence, settled law requires that a trial court’s assessment of oral witness evidence should not be readily overturned. This principle has been articulated by this Court in the decision reported as Surajpal Singh v. The State and has been reiterated on several occasions, including the recent judgment in Madan Mohan Singh v. State of Uttar Pradesh. As mentioned earlier, the trial court had been inclined to accept the testimony of the defence witnesses who were called to prove the accused’s explanation. The present Court could not discern any adequate reason offered by the learned Judge for rejecting the trial court’s view and for deeming those witnesses unreliable. The learned Judge appeared to have discredited the defence witnesses on the basis of certain remarks that did not relate to their reliability but were instead general observations suggesting that the explanation was improbable. It was suggested that, had the explanation been true, the appellant would have performed certain acts which he did not carry out. However, the appellant was not questioned about any of those alleged omissions. Consequently, the reasons for disbelieving the defence witnesses, whom the trial magistrate had been prepared to accept, amount to a general suspicion regarding the truth of the story advanced by the appellant. It is noteworthy that the appellant claimed to have learned from document D-W-13 that his missing son had been seen at Secunderabad on the very day he was required to present himself for a medical examination, namely 10 July 1948. Yet, such general suspicions alone are insufficient, in an appeal against an acquittal, to undermine the credibility of witnesses whom the trial magistrate found reliable. Apart from any issue concerning whether the appellant successfully proved the truth of his explanation, the substantive question that the learned Judge failed to address concerns the prosecution’s burden to establish that the appellant’s cessation from duty was intentional. There is no dispute that, under Section 44 of the Madras District Police Act, this burden rests upon the prosecution.

In this case, the Court explained that under Section 44 of the Madras District Police Act the burden of proving that the cessation of service was intentional rested on the prosecution. The Court observed that in a typical situation where no special facts are presented, a trial court may safely presume that a cessation is intentional. However, where additional circumstances are present, as they were here, the intention must be positively established. The prosecution, aware of this requirement, framed the charge by alleging that the appellant had gone to Hyderabad in order to obtain employment, but the prosecution failed to adduce any evidence to support that allegation. The Government Advocate for the State emphasized a specific part of the appellant’s answer to the charge, which read: “Owing to the very disturbed conditions and explosive situation immediately after the Police action I could not make bold to show out. After the situation considerably eased up by December 1948 I returned to Kurnool, and came to know that I was treated by the Madras Government as a ‘deserter’. I immediately sent up a petition on 22nd December, 1948, to the Inspector-General of Police.” The Advocate pointed out that the police action in Hyderabad had occurred in September 1948 and argued that the appellant’s statement demonstrated that he could not have remained under any restraint from September through December 1948, and therefore should have been able either to report to his duty or to send a petition to his superiors shortly after the police action. The Court noted, however, that the record contained no evidence indicating the exact date on which normal conditions were restored in Hyderabad. The Court warned that it could not be assumed that normal conditions returned immediately on the date of the police action, nor could the quoted passage be read as an admission by the appellant that normal conditions had been restored, even partially, immediately after the police action. Consequently, the Court found that the High Court had not provided a sufficient basis for overturning the trial court’s acquittal in accordance with the standards set by this Court. The Court held that the appellant was entitled to the benefit of doubt, and that the acquittal should stand. Accordingly, the appeal was allowed and the appellant was acquitted.