Mohamed Dastagir vs The State Of Madras

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

Court: supreme-court

Case Number: Criminal Appeal No. 137 of 1957

Decision Date: 26 February 1960

Coram: Syed Jaffer Imam, Bhuvneshwar P. Sinha, A.K. Sarkar, K.N. Wanchoo, J.C. Shah

Mohamed Dastagir brought an appeal against the State of Madras, and the matter was decided by the Supreme Court of India on 26 February 1960. The judgment was authored by Justice Syed Jaffer Imam, and the bench comprised Justice Syed Jaffer Imam, Justice Bhuvneshwar P. Sinha, Justice A. K. Sarkar, Justice K. N. Wanchoo and Justice J. C. Shah. The petitioner was Mohamed Dastagir and the respondent was the State of Madras. The date of the judgment is recorded as 26/02/1960. The case is reported in 1960 AIR 756 and 1960 S.C.R. (3) 116, with citator references RF 1961 S.C. 29 (22), R 1961 S.C. 1808 (14) and RF 1981 S.C. 379 (62). The issues involved the protection of the fundamental right under Article 20(3) of the Constitution of India concerning compulsion to produce evidence, the validity of a conviction obtained on notes produced under alleged compulsion, and the procedural compliance with Section 422 of the Code of Criminal Procedure, 1898 (Act V of 1898) regarding service of notice of appeal.

The appellant had been tried before a Special Judge in Tiruchirappalli under Section 165A of the Indian Penal Code for an alleged attempt to bribe a Deputy Superintendent of Police identified as K. According to the prosecution, while an investigation by an Inspector of Police was ongoing, the appellant went to K’s bungalow and handed a closed envelope to K. When K opened the envelope he discovered that it contained currency notes; he threw the envelope away, after which the appellant retrieved it. K then demanded that the appellant produce the currency notes, and the appellant complied with that demand. Subsequently, K reported the incident to a Magistrate, alleging that the appellant had attempted to bribe him. The Special Judge acquitted the appellant on these facts. On appeal, the Madras High Court accepted the prosecution’s version of events and convicted the appellant. In the High Court proceedings, counsel for the appellant entered an appearance before a notice of appeal under Section 422 of the Code of Criminal Procedure was issued to the appellant. When the appeal was ready for hearing, an intimation was made under the applicable rules to the Special Judge to communicate to the appellant the details of the appeal filed against him. The Supreme Court was asked to determine two questions: first, whether the protection guaranteed by Article 20(3) of the Constitution of India was infringed by requiring the accused to produce the currency notes; and second, whether the provisions of Section 422 of the Code of Criminal Procedure had been breached because the appellant had not been served with a formal notice of the appeal. The Court held that there was no violation of Article 20(3) because, at the time the notes were produced, the appellant was not yet in the position of a person formally accused of an offence and, on the facts proved, he was not compelled to become a witness against himself, relying also on the earlier decision in M. P. Sharma v. Satish Chandra and others, [1954] S.C.R. 1077. Regarding the procedural issue, the Court examined the requirement of Section 422 and concluded that the lack of a formal notice did not, in the circumstances where the appellant was fully aware of the time and place of the hearing and counsel had appeared and argued on his behalf, vitiate the conviction.

In this appeal, the Court noted that the procedural rule requires a notice of appeal to be served on the accused, but it also observed that, as in the present case, the High Court had found on the facts that the appellant was fully informed of the date and place where the appeal would be heard, that counsel appeared on his behalf, and that counsel argued the appeal; consequently, the failure to serve a formal notice of appeal did not invalidate the conviction. The matter before the Court was Criminal Appeal No. 137 of 1957, arising from the judgment and order dated 31 October 1956 of the Madras High Court in Criminal Appeal No. 20/1956. Counsel for the appellant comprised B. Dadachanji, C. B. Aggarwala, S. N. Andley, J., Rameshwar Nath and P. L. Vohra, while counsel for the respondent was R. Ganapathy Iyer and T. M. Sen. Counsel for the Intervener, the Union of India, consisted of C. K. Daphtary, Solicitor‑General of India, H. J. Umrigar and T. M. Sen. The judgment was delivered on 26 February 1960 by Justice Imam. The appeal concerned a certificate granted by the High Court of Madras. The appellant had been tried by the Special Judge of Tiruchirappalli under section 165A of the Indian Penal Code for an alleged attempt to bribe Mr. Kaliyappan, Deputy Superintendent of Police of Ramanathapuram. The Special Judge concluded that the charge had not been proved and acquitted the appellant. The State of Madras, dissatisfied with the acquittal, appealed to the Madras High Court under section 417 of the Code of Criminal Procedure. The High Court held that the evidence established the appellant’s attempt to bribe the Deputy Superintendent and convicted him under section 165A, sentencing him to six months’ rigorous imprisonment and a fine of Rs. 1,000, with default leading to an additional six months of rigorous imprisonment. The prosecution case stated that the appellant offered a bundle of money in an envelope to Mr. Kaliyappan at his bungalow on the morning of 14 June 1954. To understand the circumstances of this alleged bribe, the Court examined earlier events in the village of Irwadi, where two factions existed: one led by the appellant and his brother, and the other by the village munsif. On 3 June 1954, two complaints reached Keelakarai Police Station, one from the appellant against the munsif and another from the munsif against the appellant. According to the appellant, after prayers at the mosque on that day, the munsif had insulted him and attempted to murder him with a knife; he escaped after interference but was pursued to his house. The munsif’s version asserted that he was occupied that day preparing a receipt for the …

In the events leading up to the alleged bribe, the appellant’s cattle had been impounded, and when the cattle were to be released the appellant is said to have abused the village munsif, struck him with his shoe and kicked him in the stomach, causing only minor injuries. On 5 June 1954 the appellant met Deputy Superintendent of Police Mr Kaliyappan at the central bus‑stand in Madurai and handed him a petition marked Ext P‑1, in which he complained against the village munsif. Mr Kaliyappan endorsed that petition and directed the Inspector of the Ramanathapuram Circle to summon both parties and warn them against any acts that might breach the peace in the village. He also instructed that the petition not be forwarded to Sub‑Inspector P.W. 8, alleging that the sub‑inspector was biased against the appellant. On 12 June 1954 Mr Kaliyappan sent a memorandum, Ext P‑2, to the same inspector, ordering him to take steps to preserve peace in the village. The memorandum further directed the inspector to initiate action against any offenders about whom evidence existed concerning the incident of 3 June 1954, and it asked the inspector to consider whether the revolver of the appellant’s brother, Rashid, who held a licence for it, should be seized. The inspector thereafter compiled a detailed report of his enquiry, Ext P‑7, and submitted it to Mr Kaliyappan on 13 June 1954.

That same night, at about ten o’clock, the appellant went to Mr Kaliyappan’s bungalow in Ramanathapuram and reiterated his complaint against the Inspector of the Ramanathapuram Circle and the Sub‑Inspector, urging the Deputy Superintendent to examine the matter personally rather than leaving the investigation solely to the inspector. Mr Kaliyappan replied that he was not aware of the details at that moment, would need to review the records, and could meet the appellant again in about a week. According to the appellant, however, the Deputy Superintendent asked him to return the following morning. On 14 June 1954, as the prosecution alleges, the appellant arrived at the bungalow at approximately 7:15 a.m. Mr Kaliyappan was then occupied with some papers and informed the appellant that a visitor would soon see him. The appellant entered the officer’s office, again lodged a complaint against the village munsif, and handed the officer a closed envelope. Mistaking the envelope for a petition, Mr Kaliyappan opened it and discovered that it contained currency notes. Feeling displeased by the appellant’s conduct, he threw the envelope at the appellant’s face; the envelope fell to the floor.

The appellant retrieved the envelope that had fallen to the floor after Mr Kaliyappan had thrown it. The Deputy Superintendent of Police then called for his office orderly; when no answer was obtained, the officer stepped out of the office and instructed his maid to summon the camp clerk. Shortly thereafter the orderly arrived. During this interval the appellant remained inside the office. Upon the orderly’s appearance, Mr Kaliyappan asked the appellant to produce the envelope that had been dropped, which the appellant complied with by taking the currency notes from his pocket and placing them on the table, but he did not return the envelope itself. In the course of the police investigation torn fragments of paper were collected from the vicinity of the office window; it was alleged that these fragments constituted the torn pieces of the envelope that had originally contained the notes. Mr Kaliyappan then ordered his orderly to affix the office rubber‑stamp date seal to the notes, and the seal was applied. At that time the camp clerk, identified as PW 2, entered the room. Mr Kaliyappan instructed the clerk to record the serial numbers of the currency notes; the clerk complied and produced a list identified as Exhibit P‑4. Subsequently Mr Kaliyappan dictated a memorandum, marked as Exhibit P‑5, addressed to the local Sub‑Magistrate, stating that the appellant had offered him five hundred rupees in cash and requested that the action registered against the appellant at Keelakarai Police Station be dropped. In the same memorandum Mr Kaliyappan informed the Magistrate that he had seized the notes, that his office seal had been placed upon them, and that he would appreciate the Magistrate’s personal attendance at his office to record the appellant’s statement, who he claimed to have detained in the office.

According to the appellant’s statement before the Special Judge, he had gone to Mr Kaliyappan, the Deputy Superintendent of Police, on the night of 13 June 1954 and again at approximately 7 minutes past seven in the morning of 14 June 1954, as he had been instructed to do. The appellant alleged that he informed the Deputy Superintendent that he had been humiliated by police officers who had arrested him, searched his house, and that he sought redress for these grievances. He claimed that Mr Kaliyappan showed him only scant courtesy and insulted him, prompting the appellant to warn the officer not to insult him further and to request that the officer either address his grievances or allow him to take the matter to higher authorities. In response, Mr Kaliyappan rose from his chair, asked the appellant what he could achieve by appealing to higher authorities, and threatened to beat the appellant. The appellant also rose and uttered a response, after which Mr Kaliyappan called for his orderly.

The narrative records that Mr Kaliyappan called for his orderly to intervene when he believed the appellant intended to assault him. The orderly arrived and, following Mr Kaliyappan’s instruction, seized the appellant to prevent any beating. Subsequently, Mr Kaliyappan informed the orderly that the appellant possessed cash, directing the orderly to extract the money. The orderly complied, removed the cash from the appellant’s pocket, and handed it over to Mr Kaliyappan. The amount retrieved was Rs 500. After receiving the money, Mr Kaliyappan ordered his orderly to affix his seal to the banknotes, which the orderly duly performed.

The Special Judge provided several reasons for rejecting the uncorroborated testimony of Mr Kaliyappan, concluding that “the presumption of the innocence of the accused had not been displaced by his solitary testimony.” The High Court, however, did not accept the Special Judge’s reasons for discarding Mr Kaliyappan’s evidence, characterising the Special Judge’s assessment as a perverse interpretation of both his own evidence and the other evidence presented in the case. In the appeal, three principal grounds were advanced for setting aside the appellant’s conviction. First, it was alleged that the provisions of section 422 of the Code of Criminal Procedure had not been complied with, rendering the High Court’s judgment that overturned the acquittal void. Second, the appeal contended that a breach of Article 20(3) of the Constitution had occurred, thereby invalidating the conviction. Third, it was argued that the appellant had been acquitted by the Special Judge and that the High Court should not have reversed that acquittal absent compelling reasons. The High Court failed to specifically address the Special Judge’s detailed objections to the credibility of Mr Kaliyappan’s testimony; consequently, the Court erred in overturning the Special Judge’s order of acquittal. Additionally, the appellant’s counsel asserted that the sentence imposed by the High Court was unduly severe, a point to be elaborated later. Regarding the first ground, certain factual details were noted: the State’s appeal against the acquittal was admitted by the High Court on 22 February 1956; an appearance on behalf of the appellant was filed on 24 February 1956; the appellant’s counsel comprised the firm V L Ethiraj and S M Cassim. Moreover, an advocate named R Santanam, employed with the partnership of V L Ethiraj & V T Rangaswami Ayyangar, wrote to the High Court on 27 February 1956 requesting that issuance of summons and compliance with rule 240 A of the Criminal Rules of Practice be dispensed with, on the basis that the appellant’s appearance had already been entered on 24 February 1956.

Even though notice to the appellant had not yet been issued, the Court issued a notice under section 422 of the Code of Criminal Procedure on 5 March 1956 to M. V. L. Ethiraj and S. M. Cassim, who were the advocates for the appellant on the High Court record. After the appeal was prepared for hearing, the High Court followed its usual practice by sending an intimation under rule 240A on 4 September 1956 to the Special Judge of Tiruchirappalli, directing that the intimation be communicated to the appellant; the Court maintained that it would not dispense with such intimation under any circumstances. At the hearing of the appeal, Mr. Ethiraj appeared on behalf of the appellant and advanced submissions concerning both factual issues and questions of law before the learned High Court judge who was hearing the matter. The appellant’s counsel argued that the State’s filing of an appeal against the appellant’s acquittal would, if the acquittal were set aside and the appellant consequently sentenced, lead to serious consequences for the appellant. Regarding a second submission, the counsel cited article 20(3) of the Constitution, which provides that “No person accused of any offence shall be compelled to be a witness against himself.” The counsel explained that before this constitutional protection could apply, two factual conditions must be satisfied: first, the individual must be an accused person; second, the individual must have been compelled to be a witness against himself. If either condition fails, the protection of article 20(3) does not arise. The appellant’s counsel maintained that, on the facts, the appellant should be regarded as an accused at the moment when Deputy Superintendent of Police Mr. Kaliyappan asked him to produce money, and that the appellant complied only because he was under compulsion. It was pointed out that the appellant was within the authority of the Deputy Superintendent and was forced to obey his direction; as a Deputy Superintendent, Mr. Kaliyappan was authorized to conduct the investigation, the offence had been committed in his presence, and the appellant was effectively in the position of an arrested person. The argument relied on the Supreme Court’s decision in M. P. Sharma v. Satish Chandra and others, which held that the forced production of incriminating documents during a police investigation constitutes testimonial compulsion within the meaning of article 20(3). In that decision, the Court observed that every positive, voluntary act that produces evidence amounts to testimony, and that testimonial compulsion involves coercion that elicits such voluntary evidentiary acts, as opposed to merely remaining silent. The Court further noted that the protection afforded to evidence obtained under compulsion is not limited to testimony presented in a courtroom trial, and that the language of article 20(3) extends beyond the courtroom to any compelled testimony obtained previously.

In its discussion of Article 20(3), the Court explained that the constitutional protection is intended for a person who is required to be a witness, not merely to appear as a witness. Consequently, the safeguard does not limit itself to preventing testimonial compulsion that occurs in the courtroom; it may also extend to testimony that has been compelled earlier and that is likely to be used against the person. The protection, therefore, is available to any individual against whom a formal accusation of an offence has been made and who, in the ordinary course of events, could face prosecution. The Court noted that whether the guarantee applies to other persons in different circumstances was not a question that needed to be decided in the present case. Applying this view, the Court held that the guarantee under Article 20(3) was applicable to the petitioners, because a First Information Report had been lodged naming them as accused. The protection would also cover any compulsory process that demanded the production of documents that could reasonably be expected to support a prosecution against them. The Court observed that these remarks were unnecessary in the earlier Sharma case, since that decision had concluded that the seizure of documents under a search warrant did not constitute an unconstitutional compulsory production of incriminating evidence. Turning to the facts before it, the Court found that, unlike the situation in Sharma, there was no formal accusation against the appellant concerning the commission of any offence. The officer, Mr Kaliyappan, had expressly stated that he was not conducting an investigation, and his testimony did not indicate that he had accused the appellant of any wrongdoing. Even if it were assumed that the appellant was an accused person, the circumstances did not establish that he had been compelled to produce the money he was carrying. Although he was asked to hand over the currency notes, the Court noted that he retained the ability to refuse the request. Consequently, the Court concluded that the appellant was not forced to produce the notes, and therefore the provisions of Article 20(3) were not triggered. Regarding the third point of contention, after reviewing the evidence and the judgments of both the Special Judge and the High Court, the Court expressed no hesitation in affirming the High Court’s view that the Special Judge’s judgment was perverse. Since the appeal was filed on a certificate and the factual findings of the two courts were not concurrent, the Court held that it was entitled to form its own conclusions regardless of the reasons the High Court gave for deeming the Special Judge’s reasoning perverse. Having examined the grounds advanced by the Special Judge for distrusting Mr Kaliyappan’s evidence, the Court determined that those grounds were indeed perverse, a conclusion it reached after careful consideration of the documentary evidence and the manner in which it had been presented.

The Court recorded that Mr. Kaliyappan testified that, during a dispute between the village munsif and the appellant, he had taken the side of the village munsif. Although the Court noted this claim, it expressly stated that it did not accept that Mr. Kaliyappan was actually supporting the village munsif in that quarrel. Assuming, for the sake of argument, that Mr. Kaliyappan had indeed sided with the village munsif, the Court noted this premise. Even on that premise, the Court found it impossible to believe that he would have invented a false allegation of an attempted bribe by the appellant. The Court observed that, if Mr. Kaliyappan had wanted to remove the appellant from his bungalow, he could have done so simply by ordering the appellant to leave, without creating a fabricated bribe claim. Moreover, the Court noted that, had he truly sided with the village munsif, Mr. Kaliyappan could have easily instructed subordinate police officers to record the village munsif’s version of events. He also could have directed those officers to initiate prosecution against the appellant based on the village munsif’s statement. The Court therefore concluded that there was no apparent need for Mr. Kaliyappan to devise an elaborate story accusing the appellant of offering a bribe. In the Court’s view, the appellant had committed no act that could be characterized as an attempt to bribe.

The Court observed that the investigation had placed considerable emphasis on the fact that Mr. Kaliyappan’s written information to the magistrate did not mention any money being handed over in an envelope. It also noted that the torn fragments of paper discovered outside the window of Mr. Kaliyappan’s office had not been proven to be part of any envelope that might have contained the alleged bribe. Furthermore, the Court found that it was not clear whether the Rs. 500 recovered from the appellant’s person represented the exact currency notes that were supposedly offered to Mr. Kaliyappan as a bribe. While acknowledging these evidentiary gaps, the Court stressed that it had placed excessive emphasis on them, suggesting that the overall assessment should not be unduly influenced by such technical points. The Court reiterated that Mr. Kaliyappan’s information to the magistrate unequivocally alleged that the appellant had offered a bribe of Rs. 500, irrespective of whether the money had been placed in an envelope. The Court held that the critical issue for determination was whether the appellant had, in fact, made an offer of a bribe to Mr. Kaliyappan. The Court said that the manner in which any alleged money might have been presented was not the essential question. In support of this focus, the Court noted that the appellant was found in possession of Rs. 500 on his person, which constituted a relevant circumstance indicating the possibility of a bribe offer. However, the Court also observed that no envelope containing the alleged Rs. 500 was produced, even though Mr. Kaliyappan’s narrative suggested that the money had been handed over in such an envelope. The Court further remarked that torn pieces of paper, which could possibly form an envelope, had been recovered from outside the window of the room where the alleged bribe transaction was said to have occurred. After a careful reading of Mr. Kaliyappan’s testimony, the Court concluded that his statements were substantially truthful and that there was no plausible motive for him to fabricate a false case against the appellant. The Court recognized that, given the circumstances of the alleged bribe, it would have been difficult to obtain corroborative evidence to support Mr. Kaliyappan’s account. Nonetheless, the Court observed that Mr. Kaliyappan’s overall conduct throughout the investigation demonstrated a bona‑fide attitude, reinforcing the credibility of his evidence. Having given careful consideration to his evidence and to the surrounding circumstances, the Court deemed that there was no justification for disbelieving his testimony.

In this case the Court affirmed the view of the High Court that there was no legitimate basis for disbelieving the witness’s evidence. Consequently the High Court was fully justified in relying on that evidence and in overturning the Special Judge’s order of acquittal. Regarding sentencing, the Court noted that on the second day of hearing the appellant’s counsel expressed that the appellant submitted himself to the mercy of the Court and offered an apology for his conduct. The counsel further explained that the appellant, although an Indian national, was engaged in business in Burma and possessed a permanent‑resident visa issued by the Burmese Government. The counsel argued that if the appellant failed to return to Burma before 2 March, he would forfeit that visa and would no longer be permitted to reside permanently in Burma, which would result in the loss of his entire business and property there, a consequence that the counsel described as a severe penalty should an imprisonment sentence be affirmed. The counsel also reminded the Court that on two previous occasions this Court, on the same ground and after the appellant furnished security and gave an undertaking to return to this country, had permitted him to travel to Burma so that he would not violate the conditions of his visa. It was further pointed out that the incident under consideration occurred in June 1954, which is approximately five years and eight months prior to the present hearing. The counsel submitted that a substantial fine in place of imprisonment would constitute an adequate punishment and would serve as a deterrent to the appellant. After careful consideration of the sentencing issue, the Court observed that, on its face, a term of six months’ imprisonment together with a fine of one thousand rupees could not be characterized as excessive for the offence proved against the appellant. While the mitigating circumstances described by the appellant may merit attention, the Court held that, from a judicial perspective, it could not be said that the sentence imposed by the High Court was unduly harsh in a case involving an attempt to corrupt a responsible public servant. Accordingly, the appeal was dismissed.