ON 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 201956
B Dadachanji C B Aggarwala  section 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 section 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 section 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 section 165A Indian Penal Code and sentenced him to 6 month s rigorous imprisonment and a fine of Rs 1000 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 PW 8 as it was alleged that he was siding against the appellant
On June 12 1954 Mr Kaliyappan sent a memo Ext
P 2 to the Inspector of Ramanathapuram Circle directing him to take steps to see that peace was preserved in the village
This Police Officer Was also asked to take action against the offenders with respect to whom there was evidence in connection with the occurrence of June 3 1954
Mr Kaliyappan also in view of the situation had directed this Police Officer to see whether steps should not be taken to seize the revolver of the appellant s brother Rashid for which he had a licence
The Inspector of Ramanathapuram Circle thereafter prepared a detailed report Ext
P 7 of the result of his enquiry and handed it over to Mr Kali yappan on June 13 1954
On the night of June 13 1954 at about 10 pm the appellant went to the 119 bungalow of Mr Kaliyappan the Deputy Superintendent of Police at Ramanathapuram and complained against the Inspector of Police of Ramanathapuram Circle and the Sub Inspector requesting the s Deputy Superintendent of Police to look into the matter personally and not to leave the investigation exclusively in the hands of the Inspector
Mr Kaliyappan told the appellant that he knew nothing about the case and could not say or do anything off hand and that the appellant should see him about a week later by which time he would have perused the record and would be in a position to look into his grievances
According to the appellant however the Deputy Superintendent of Police had asked him to come to him next morning
On June 14 1954 according to the prosecution the appellant went to Mr Kaliyappan s bungalow at about 7 15 am who was at that time looking into certain papers
He was informed that a visitor bad come to see him
The appellant accordingly entered his office room when he again complained to the Deputy Superintendent of Police against the village munsif
At the same time he presented to this Police Officer a closed envelope
Mr Kaliyappan thought that the envelope contained a petition but on opening it he found that it contained currency notes
He was annoyed at the conduct of the appellant
He threw the envelope at the appellant s face but the envelope fell down on the floor and the appellant picked it up
The Deputy Superintendent of Police called his office orderly but as there was no response he went out of the office room and told his milk maid to get the camp clerk
By that time the orderly turned up
The appellant had in the meantime remained in the office room and on the appearance of the orderly Mr 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 PW 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
Mr Kaliappan then dictated the memo
P 5 to the local Sub Magistrate informing the latter that the appellant bad offered him Rs 500 in currency notes requesting him to drop action registered against the appellant at Keelakarai Police Station
Mr Kaliyappan informed the Magistrate in this connection that he had seized the currency notes and his office rubber stamp seal had been placed on them and that he would be grateful to the Magistrate if he would come to his office and record the statement of the appellant whom he had detained in his office
The case of the appellant as would appear from his statement to the Special Judge was that he had been to Mr Kaliyappan the Deputy Superintendent of Police in the night of June 13 1954 and in the morning at 7 15 am on June 141954
He had gone to Mr Kaliyappan s bungalow in the morning of June 14 as he bad been requested to do so
He had told the Deputy Superintendent of Police that he had been humiliated by his Police Officers who had arrested him and had searched his house and that Mr Kaliyappan should redress his grievances
Mr Kaliyappan showed him scant courtesy and insulted him upon which the appellant told Mr Kaliyappan not to insult him and that he should tell the appellant whether he would redress the grievances of the appellant or not and that if he was not prepared to redress the grievances the appellant would take the matter to the higher authorities
On this Mr Kaliyappan got up from his chair and enquired of the appellant what could he do by going to the higher authorities and threatened to beat the appellant
The appellant also got up and said something to him upon which Mr Kaliyappan called out for his orderly
The orderly came and was told by Mr Kaliyappan 121 that he was going to be beaten by the appellant and therefore he should catch hold of the appellant which the orderly did
Then Mr Kaliyappan told the orderly  that there was money in the appellant s pocket and that he should remove it
The orderly accordingly removed the money from the appellant s pocket and gave it to Mr Kaliyappan
The money in his pocket was Rs 500
Mr Kaliyappan then directed his orderly to put his seal on the notes
The Special Judge gave various reasons for not accepting the uncorroborated testimony of Mr Kaliyappan and held that the presumption of the innocence of the accused had not been displaced by his solitary testimony
The High Court did not consider the grounds given by the Special Judge for discarding the testimony of Mr Kaliyappan as at all justified and was of the opinion that the Special Judge had taken a perverse view of his evidence and of the other evidence in the case
In the main three points were urged in support of the plea that the conviction of the appellant should be set aside
The first point urged was that the provisions of section 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 article 203 of the Constitution which vitiated the conviction
The third point urged was that the appellant having been acquitted by the Special Judge the High Court should not have set aside the acquittal unless there were compelling reasons
The several grounds stated by the Special Judge in distrusting the evidence of Mr Kaliyappan had not been specifically considered by the High Court and without those grounds being displaced the High Court erred in setting aside the order of acquittal passed by the Special Judge
Lastly it was urged that in the circum stances of the present case the sentence passed by the High Court was severe
The circumstances relied upon in this connection will be stated in due course
Regarding the first point a few facts have to be stated
The State s appeal against the acquittal of 122 the appellant was admitted by the High Court on February 22 1956
Appearince
on behalf of the appellant was filed on February 24 1956
The advocates for the appellant ere Ms V L Ethiraj and section M Cassim
One Mr R Santanamn an advocate who worked in the office of the partnership of Ms 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 section 422 of the Code of Criminal Procedure was issued by the Court on March 5 1956 to Ms Ethiraj and Cassim advocates for the appellant on the records of the High Court
After the appeal was ready for hearing the usual intimation under rule 240A was also sent on September 4 1956 to the Special Judge Tiruchirappalli for being communicated to the appellant as it was the practice of the High Court not to dispense with altogether the issue of such intimation under any circumstance
Mr Ethiraj appeared for the appellant at the hearing of the appeal and made submissions on questions of fact as well as on questions of law before the learned Judge of the High Court who heard the appeal
It was contended for the appellant that the of the appeal filed by the State against his acquittal because if the acquittal was set aside and the appellant was sentenced serious consequences would arise
As to the second submission article 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 article 203 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 vs 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 article 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 SCR 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 article 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 article 203 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 article 203 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 evidencc could be disbelieved
In the circumstances the High Court was entirely justified in acting upon it and setting aside the order of acquittal made by the Special Judge
Lastly on the question of sentence it may be mentioned at once that on the second day of the hearing of this appeal learned Advocate for the appellant stated that his client threw himself at the mercy of Court and apologized for what had happened
The 129 learned Advocate further urged that the appellant though an Indian citizen was carrying on business in Burma and had a visa from the Burmese Government for permanent residence and that unless he returned to Burma by the 2nd of March by would lose the benefit of the visa and would no longer be allowed to reside in Burma as a permanent resident
Conse quently he would lose his entire business and property in that country which Would be a severe penalty if his sentence of imprisonment was upheld
It is also pointed out that on two occasions this Court on this very ground on the appellant furnishing security and giving an undertaking to return to this country had allowed him to go to Burma in order that he might not contravene the conditions of his visa
It was further pointed out that the incident took place in June 1954 some 5 years and eight months ago
Even a substantial fine in lieu of the sentence of imprisonment would be sufficient punishment and a deterrent to the appellant
We have given the matter of sentence our anxious consideration
It seems prima facie that a sentence of 6 months  imprisonment and fine of Rs 1000 could not be said to be severe for an offence of the kind established against the appellant
The circumstances mentioned above if correct in plea of mitigation of sentence may attract attention but so far as a court of law is concerned judicially it is impossible to say that the sentence imposed by the High Court is severe in a case where there had been an attempt to corrupt a responsible public servant
The appeal is accordingly dismissed
Appeal dismissed


Summary:
The appellant was convicted under section 304 Part I of the Indian Penal Code and sentenced to imprisonment for life by the trial Court
His appeal to the High Court was admitted only on the question of sentence and at the hearing the sentence was reduced to 10 years  imprisonment
On appeal by special leave the appellant contended that his appeal in the High Court could not in law be admitted on the question of sentence only and that he was entitled to be heard on the merits of the case also
Held that having regard to the provisions of the Code of Criminal Procedure while an Appellate Court had power to dismiss an appeal summarily if it considered that there was no sufficient ground for interfering it had no power to direct the appeal to be heard on the question of sentence only
The Appellate Court after hearing the appeal had the power in finally disposing of the appeal to reduce the sentence but was not entitled to direct the appeal to be admitted only on the question of sentence
The appellant was entitled to have his appeal heard on the merits in the High Court
The King Emperor vs Dahu Raut 1935 LR 62 IA 129 followed
Nafar Sheikh vs Emperor Cal
606 Gaya Singh vs King Emperor Pat 254 and Sudhir Kumar Neogi and Another vs Emperor AIR 1942 Pat
46 approved
Bai Dhankor vs Emperor  not appli cable