1. These are two connected Revision Cases filed against the convictions and sentences of the learned 4th Presidency Magistrate, George Town, Madras in C. C. Nos. 7937 and 7941 of1953.
The convicted person in C. C. No. 7937 of 1953 is B. N. Ramakrishna Naidu who was accused 2 therein and his Revision Case is No. 343 of 1954 and the convicted person in the other case, is Viswanathan Chetti whose Revision Case is 344 of1954. E. N. Ramakrishna Naidu has been fined Rs. 100/- and Viswanathan Chetti has been fined Rs. 50/- and the sandalwood billets in both the cases have been ordered to be confiscated to the Government. The convictions were under Section 65, City Police Act.
2. The short facts are: There were frequent thefts of sandalwood logs in the Government Forest in Chittoor and the adjoining Tirumalai Devasthanam forest. These thefts were taking place between May 1952 and November 1852. The Tirumalai Tirupathi Devasthanam had complained of these thefts to the Tirumalai Police Station. In other words, the authorities were on the look out for checking these thefts.
3. I need not point out that in the City of Madras, which is within 100 miles of the Chittoor District, there is a brisk trade in sandalwood logs for the purpose of being sold as small billets for grinding sandalwood' paste and for being powdereel as sandalwood powder and for the purpose of cremation in the case of rich people.
4. There is no dispute that the accused in both these cases have been dealing in sandalwood as dealers in Madras.
5. In these circumstances a detailed pseudonymous typed petition signed by one Umapathi with address given therein was received by the Conservator of Forests. This petition gives complete details of the thefts in the Chittoor sandalwood forest, their transport to Madras and their being purchased and vended by Gurusami Nadar and B. N. Ramakrishna Naidu and how they were stocked in their premises and how if a sudden search was made these incriminating articles would be recovered. There cannot be the slightest doubt that this pseudonymous petition has emanated from a person intimately connected with Gurusami Nadar and Ramakrishna Naidu and represents what is vulgarly described as 'Inside dope'. This petition was forwarded by the Conservator of Forests to the City Police for investigation and in fact it is not too much to say that the information given was so complete that all the police had to do was to arrange (or a search and lay hands upon the goods. That is exactly what happened.
6. On 23-11-1952 P. W. 1, Sri S. Ramaswami Mudaliar, Inspector of Police, C. I. D., Crime Branch, searched the shop of Gurusami Nadar running a shop under the name and style of A. V. M. Ramaswami Nadar and Co., No. 13 Strotten Muthiah Mudali St., G. T., Madras. There he seized among other things three bags of sandalwood billets, weighing in all 258 lbs., kept in a room adjoining the kitchen in the back portion of the house, in the presence of both this Gurusami Nadar as well as B. N. Ramakrishna Naidu. The seizure was made under the Mahazar Ex. P-2. In regard to these billets two things were found then and there and concerning which there is no dispute that none of the billets contained the hammer mark of the Forest Department or any property mark as required by Rule 9 of the Madras Sandalwood Transit Rules; and secondly, the billets seized were very fresh and appeared to have been cleaned recently.
Guruswami Nadar produced a hammer bearing the letters 'B.N.R.' (M. O. 2) and these marks were found on the billets. Ramakrishna Naidu produced certain bills but they could not be correlated to these fresh billets as they related to transactions some years prior to this seizure. Both the accused were put up for trial and Gurusami Nadar was discharged for two reasons. First of all, he produced his accounts and they bore out that this Guruswami Nadar had told the Police even at the time of the seizure viz., that these sandalwood billets belonged to Ramakrishna Naidu and that he was selling them, Secondly Ramakrishna Naidu in the explanation which he gave under Section 342, Criminal P. C., categorically asserted that he had kept those sandalwood billets in the shop of Guruswami Nadar for sale on a commission basis and that he had purchased these sandalwood billets from various merchants in Chittoor and that the logs bore hammer marks and that when customers wanted sample sandalwood he used to put his own hammer-mark on the sample sandalwood.
7. In the course of this investigation in Crime No. 903 of 1952 registered on the foot of Umapathi's petition. P. W. I, Ramaswami Mudaliar searched the house of the petitioner in Crl. R. C. No. 344 of .1954, Viswanathan Chetti, at No. 20 Varadamuthiappan St., G. T. Madras on 27-11-1952 at 3-30 P. M. and on opening one of the rooms in the house P. W. 1 found 30 pieces of Sandalwood billets weighing about 40 lbs. P. W. 1 also found one hammer bearing the seal 'Mysore Sandal-wood' and a small axe used for shaving the wood. There were also some letters and accounts. They were all seized under a Mahazar.
8. The case for Viswanathan Chetti was that the prosecution has not proved that the particular room in question was in his occupation and that in that house there were a number of tenants. He produced certain documents viz., a receipt of sale dated 28-5-1951 for one ton Sandalwood at Rs. 240/- per ton by one Kuppuswami Naidu of Royalpettai and a sale memo dated 23-7-1951 from Jetmall Sukanraj and Co., No. 196 Govindappa Naicken Street, Madras, for 21 bags of sandalwood chips with which we are not concerned and ft receipt dated 13-10-1951 from one D, Munusami of Choudaipally village in Chittoor District and a way-permit dated 27-5-1951 for transporting 25 bags of sandalwood chips with the property mark 'M.N.K.', with which also we are not concerned here. Though this was the position taken in the written statement filed by this accused, which practice is deprecated by this High Court; in his oral examination under Section 342, Criminal P. C., the accused agreed that these sandalwood billets were seized from him and that he purchased them under permits and that he had not used any hammer marks.
9. Sandalwood is sold by the Forest Department from the Government Forests and by patta-dars from their private areas. The procedure regarding the acquisition, and sale of sandalwood pieces by dealers is set out by the then District Forest Officer, North Arcot, Mr. C. M. A. Khurai-shy, as follows: For all Sandalwood sold by the Forest Department, the department itself marks the trees. Sandalwood is extracted under depart- mental supervision, rough-cleaned, and sent for final cleaning to the sandal depot, Tirupattur. Then, the pieces are sold after wide publicity, twice a year. All the pieces cleaned up, are given hammer-marks, at both the cut ends. Regular receipts, are issued to the purchasers. For sandal- wood belonging to Pattadars, they will have to inform the D. F. O. of the District about the trees, that they have to fell them and sell them. Then the D. F. O. directs Ranger to proceed and inspect. The Ranger inspects and reports. After the tree is felled, with permission, the pattadar has to fell It and stack It only there. Then the Ranger again inspects the trees and affixes the Government hammer. Thereafter, permission is given by the D.F.O. to transport the sandalwood.
10. In the case of Ramakrishna Naidu in support of his version set out above he examined two witnesses whose evidence has been summarised by the learned Magistrate as follows:
'D. W. 1 Ramalinga Mudaliar is doing business in sandalwood at 151, Mint Street, Madras. He states in chief-examination that accused 2 (Ramakrishna Naidu) purchased 1 1/2 tons of sandalwood from him in 1952. He D. W. 1 has issued a bill to accused 2. The pieces, that he sold, were 6' to 8' in length. There was no mark on any one of the pieces. In cross-examination D. W. 1 states that he does not remember the month in 1952 during which he sold sandalwood to the accused. Nor does, he remember at what rate per ton he sold sandalwood. D. W. 1 would further swear that all his account books, including bill books, are on the file of the income-tax authorities. D. W. 1 is, However, unable to state belore which Income-tax Officer they have been filed. In view of this, it is not possible to regard D. W. 1 as having deposed to the truth. Further, no reference was made to D. W. 1 by accused 2, when he was examined under Section 342, CriminalP. C., or even in his written statement. Again, if indeed accused 2 had purchased sandalwood from D. W. 1 it is clear that the bill evidencing the purchase would have been filed. D. W. 2 Murmal says that accused 2 sold sandalwood to him. He (D. W. 2) stated at first, that he does not remember if accused 2 gave him bill. But soon he changed his version. He stated that accused 2 gave him two bills. The version of D. W. 2 cannot also, in the circumstances, be accepted as true.'
Viswanathan Chetti did not examine any defence witnesses although he took an adjournment for that purpose
11. Before the learned Presidency Magistrate two contentions were raised viz., first of all on they evidence on record the prosecution had not brought home the offence to the accused under Section 65, Madras City Police Act, 1888; and secondly Section 65, Madras City Police Act, 1888 offended Article 14 of the Constitution of India and was therefore void as being repugnant thereto and that the questioning by the Court of the accused under Section 342, Criminal P. C., offended Article 20(3) of the Constitution of India and vitiated the conviction; In other words, the contention was both (a) on merits and (b) on the supposed offending of Articles 14 and 20(3) of the Constitution of India.
12. The learned Presidency Magistrate came to the conclusion on the merits that the prosecution had brought home the offence to the accused and on the point of law that there was no substance in the contention. Therefore he convicted these revision petitioners and sentenced them as already mentioned.
13. On a review of the entire circumstances of the case I have come to the same conclusion as the learned Presidency Magistrate both on merits as well as on the points of law and here are my reasons.
14. Point (a) The prosecution has brought home the offence to the accused by these three pieces of evidence.
First of all, they have shown that at about the time when these sandalwood billets were recovered from the accused there were thefts of sandalwood from the normal sources of supply to Madras City, viz., the adjoining sandalwood forests of Chittoor. In other words, the prosecution had shown that the accused had the opportunity of acquiring stolen properties.
Secondly, the prosecution has established through the evidence of the District Forest Officer that these sandalwood logs if they had been acquired only either straight from the Government Depot or from pattadars, they would be supported by the presence of hammer-marks on the logs and also by bills showing the transactions. In this case it is clear that the logs which were seized did not bear any such hammer-marks and the purchases were not corelated to any account entries or bills showing the innocent origin of the acquisition of these sandalwood logs by the accused with the persons from whom they were alleged to have been purchased.
Thirdly, they were recovered from the possession of these accused persons shortly after the thefts of sandalwood logs from the Chittoor forest were detected and were being reported and these accused have been unable in terms of Section 65, Madras City Polic Act, to satisfactorily account for their possession of these properties which they must have reason to believe to be stolen. Otherwise, if the properties had been honestly acquired they would have been able to adduce evidence showing such normal acquisition. That such evidence has not been forthcoming shows that the accused could not satisfactorily account for their possession of these stolen properties and of which they were found in possession having reason to believe them to be stolen. Therefore, on the merits the prosecution had made out a clear case against these accused and the accused had failed to rebut the same in terms of Section 85, Madras City Police Act.
15. Point (b): It is urged on behalf of the Revision Petitioners that Section 65, Madras City Police Act, which is operative in the City of Madras and not throughout the mofussii, except in places to which it has been extended, is opposed to Article 14 of the Constitution inasmuch as it imposes upon the accused persons within the area within which it operates the onerous duty of explaining the possession satisfactorily.
16. Article 14 of the Constitution is directly related to the Preamble to the Constitution which declares as one ot the objects of the Constitution the securing to all the citizens equality of status and of opportunity. This Article is the first of a series which embodies the Ideal of equality expressed in the Preamble and the succeeding Articles 15 to 18 enact particular applications of the rule. Therefore, Article 14 may be considered to be the residuary provision on the subject. The meaning of 'equality before law' or 'equal protection of the laws' has been expounded both by the Supreme Court in the United States of America and summarised by the learned Commentators on American Constitutional Law and has been the- subject matter of several decisions of our Supreme Court and High Courts in India, The most exhaustive, lucid and analytical commentary on Article 14 is to be found In the recently published A.I.E. Commentaries on the Constitution of India, Vol. I, pages 202-295. I am greatly indebted to this monumental work in the preparation of this decision. It is now well settled as these learned commentators of what may legitimately be described as the Indian Willoughby that this conception does not involve the idea of absolute equality among human beings which is a physical impossibility. Equality before law means that among equals the law should be equal and should be equally administered and that the iike should be treated alike. Hence, equality before the law does not mean that things which are different shall be treated as though they were the same. What it does mean is the denial of any special privilege by reason of birth, creed or the like and also equal subjection of all indivi-duals and classes to the ordinary law of the land. (17) Therefore, the principle of equality enacted in this Article does not absolutely prevent the State from discriminating. The State has the power of what is known as 'classification' on a basis of rational distinctions relevant to the particular subject dealt with.
18. In this connection reference may be made to the following passages from classical American text books on American Constitutional Law.
19. Corwin in his Constitution, What it Means to-day, Page 204:
'Equal protection of the laws'. This clause was originally intended for the benefit of the negro freedmen; but in the famous case of -- 'Yick Wo v. Hopkins', (1886) 30 Law Ed 220 (A) decided in 1886, its protection was extended to Chinese residents of the United States and at about the same time corporations were also declared to be 'persons' within the meaning of the amendment.'
'Santa Clara County v. Southern Pacific Railroad Co.', (1886) 118 US 394 (B) c.f., Chief Justice Muller's language in -- 'Slaughter House' (1873) 16 Wall 36 (C). The clause does not automatically rule out legislative classifications. Indeed, substantially all legislation involves classification of some sort. 'Missouri and Kansas and Texas Rly. Co. v. May', (1903) 194 US 267 (D) and --'Lindsley v. Natural Carbonic Gas Co.', (1910) 220 US 61 (E) What the clause appears to require is that 'any' classification of 'persons' shall be reasonably relevant to the recognised purposes of good government; and furthermore, that there shall be 'no' distinction made on the sole basis of race or alienage as to certain rights.
20. 'Constitutional Law by Willis (1936 Edition), pages 579, 580':
'The guaranty of the equal protection of the law means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. 'It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.' The inhibition of the Amendment.....was designed to preventany person or class of persons from being singled out as a special subject for discriminating and hostile legislation.
It does not take from the State the power to classify either in the adoption of police laws or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that It does not rest upon any reasonable basis..... Many different classifications of persons haye been upheld as constitutional. A law applying only to one person or one class of persons is constitutional if there is sufficient basis, or reason for it.'
21. Cooley in his Constitutional Limitations, 8th Edn., Vol. II, page 803:
'Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application; they may embrace many subjects or one, and they may extend to all citizens, or be confined to particular classes, as minors or married women, bankers or traders, and the like. The authority that legislates for the State at large must determine whether particular rules shall extend to the whole State and all its citizens, or, on the other hand, to a subdivision of the State or a single class of its citizens only. The circumstances of a particular locality, or the prevailing public sentiment in that section of the State, may require or make acceptable different police regulations from those demanded in another, or call for different taxation and a different application of the public moneys.
The legislature may, therefore, prescribe or authorize different laws of police, allow the right of eminent domain to be exercised in different cases and through different agencies and prescribe peculiar restrictions upon taxation in each distinct municipality, provided the State Constitution does not forbid. These discriminations are made constantly; and the fact - that the laws are of local or special operation only is not supposed to render them obnoxious in principle. The legislature may also deem it desirable to prescribe peculiar rules for the several occupations and to establish distinctions in the rights, obligations, duties, and capacities of citizens.
The business of common carriers, for instance, or of bankers, may require special statutory regulations for the general benefit, and it may be -matter of public policy to give labourers in one business a specific lien for their wages, when it would be impracticable or impolitic to do the same for persons engaged in some other employments. If the laws be otherwise unobjectionable, all that can be required in these caies is that they be general in their application to the class or locality to which they apply; and they are then public in character, and of their propriety and policy the legislature must Judge.
But a statute would not be constitutional, which should prescribe a class or a party for opinion's sake, or which should select particular individuals from a class or locality, and subject them to peculiar rules, or impose upon them special obligations or burdens from which others in the same locality or class are exempt.'
22. Willoughby on the Constitutional Law of the United States, Second Edition, page 1937, paragraph 1273:
'It will have been seen that the requirement of equal protection of the law applies to all persons similarly situated or circumstanced. Hence where there are rational grounds for so doing, persons or their properties may be grouped into classes to each of which specific legal rights or liabilities may be at attached. This legislative discretionary right applies to the exercise of all the powers of the States,--to their taxing and police powers as well as to their other powers.'
23. Rottschaefer on Constitutional Law, Horn-book series, pages 551 to 553:
'The preceding portions of this chapter have dealt more with the limits imposed upon governmental regulation by the due process clauses than with those 'resulting from the equal protection clause of the Fourteenth Amendment. This was because the emphasis therein was on the kind of regulations that coutd be imposed rather than on the power of Government to mark off the regulated field from that which it chose to leave free of the particular regulations involved in any, given case. A State is not prevented by the equal protection clause from making reasonable classifications in exercising its regulatory powers. The necessary result of any classification made in connection with the exercise of. a state's police power is to subject some persons to a form of regulation from which others are relieved, or to confer upon some an advantage denied to others.
The validity of a classification thus depends on whether the legislature had reasonable grounds for its restriction of the class upon which burdens are imposed or benefits conferred. The usual objections to a classification made in connection with a regulation that imposes a burden is that it is invalid to limit the burden to the defined class and that, if a regulation of the given character is to be put into effect, it should be extended to others as well. The usual objection to such a classification in connection with a regulation that confers upon some persons benefits that are denied to others is that it is invalid to thus limit those benefits. The grant of benefits is frequently part of a larger plan of regulation in which the benefit conferred consists of immunity from the burden. The second objection is in such case merely a different form of stating the first.
The crucial point in any case involving the validity of a classification is the existence of differences in treatment between groups. The issue is as to the reasonableness of those differences, and the basis on which the classes are defined is relevant only so far as it bears thereon. There is, accordingly, no basis of classification that is invariably sustained. There are, however, certain principles almost universally applied in this field. The equal protection clause is not violated merely because a State makes an exceptibn which it is required to make by some other provision of the federal Constitution. This has been specifically held in & case involving an exercise of a State's taxing power for reasons that sre equally applicable to its police powers: -- 'Union Bank and Trust Co, v. Phelps', (1932) 53 S Ct 321 (P). It has also been held that an objection that legislation violated the clause because not including certain other persons would not be sustained in the absence of showing that there actually were such others engaged in the business to which the legislation applied; -- 'Pullman Co.' v. Knott', (1914) 35 S Ct 2 (G). The fact that those excepted from a statute regulating car-riers by motor vehicle were subject to comparable regulations by local authorities was held a sufficient basis for sustaining the reason- ableness of the classification: -- 'Continental Banking Co. v. Woodring', (1931) 52 S C 595 (H).
A classification justifiable by its tendency to promote a legitimate Governmental policy is valid. This is the basis for sustaining the exception from a statute regulating motor vehicles using the public highways of such vehicles as are used by their owner in transporting his own live-stock, and of buses employed in carrying children to and from school: See also --'Sproles v. Binford', (1931) 52 S C 581 (I). No violation of the equal protection clause results from a classification whose effect is to relieve a municipally owned utility from regulation of its rates by a state board actually regulating the rates of a competing privately owned company, -- ('Springfield Gas and Electric Co. v. Springfield', (1921) 42 S C 24 (J)) nor from one that accorded the marketing contracts of co-operatives a degree' of protection denied to other contracts: -- 'Liberty Warehouse Co. v. Burley Tobacco Growers' Co-operative Marketing Asso.', (1927) 48 S Ct 391.
The legislature may in adopting a policy recognize an existing situation and adapt its legislation thereto. It is on this basis that the exemption of existing structures from zoning ordinances has been held valid, and that the grant of a preferred position to prior applicants for certificates of -convenience and necessity to operate motor vehicles over a given route has been sustained: -- 'Bradley v. Public Utilities Commission', (1932) 53 S Ct 577 (L). The validity or Invalidity of classification cannot be determined without taking into account all the factors that have a natural and obvious relation to the purposes of the regulation in connection with which they are made and to the differences In treatment made in connection with realizing those purposes. The possible bases of classification are almost unlimited.'
Again, at page 458:
'The issue of the validity of legislation under these provisions generally arises in connection with attempts at its enforcement. Its validity is sometimes specifically determined on the basis of conditions existing at, that time, taut more often by a consideration of those existing at the time of its enactment. The cas.es in which the former method is employed proceed on the theory that changed conditions may render arbitrary the enforcement of a regula-tion which may have been reasonable when It was enacted: -- 'Block v. Hirsh', (1920) 41 S C 458 (M) and -- 'Chastleton Corpn. v. Sinclair', (1923) 44 S Ct 405 (N). Resort to the latter method can be justified whenever there have been no significant changes between the dates of the enactment and enforcemet of the Act. The principle that the validity of legislation depends on whether the legislature had reasonable grounds for its enactment has been framed with reference to cases employing the latter method: -- 'O'gorman and Young v. Hartford Fire Insurance Co., (1930) 51 S Ct 130 (O); -- West Coast Hotel Co. v. Parrish', (1936) 57 S C 578 (P).
It cannot be employed where the Issue is the effect of changed conditions upon the constitutionality of the enforcement of legislation. The legislation is sometimes so unreasonable and arbitrary on its face that its invalidity is readily determinable. The reasonableness of the legislature's action, however, cannot ordinarily be determined without considering the factual situation existing when the legislation was enacted. It is only by taking account thereof that a Court can determine the reasonableness of the legislative Judgment that evils existed and that the means adopted for dealing with them had a real and substantial relation to the attainment of the object aimed at.
It is, therefore, essential that the factual background of such legislation be considered, and this requires that -it be before the Court when it passes on its validity. The facts may be of such character that the Court can take Judicial notice of them, but, if not of that class, they are properly the subject of evidence which should be presented to the Court so that the decision of the constitutional issue can be based on adequate factual support: -- 'Borden's' Farm Products Co. v. Baldwin', (1934) 65 S C 187 (Q). This consideration is primarily important in its relation to the presumption of validity that attaches to all legislative action. This has been stated to be a rebuttabie presumption of the existence of factual conditions supporting the legislation deed. It means that, if any state of facts can reasonably be conceived under which the legislation would be valid, there is a presumption of the existence of such state of facts: (1910) 220 US 61 (E); --'Maclean v. Arkansas', (1908) 29 S C 206 (R).
The presumption is sufficiently rebutted if the regulation could not be sustained under any conceivable state of facts, but in all other cases those who assail it must carry the burden of showing that the action is arbitrary either by resort to matters which the Court may judicially notice or to other legitimate proof: -- 'Weaver v. Palmer' Brothers Co.', (1925) 46 S C 320 (S). The failure to do so where required is a sufficient basis for repelling an' attack on legislation: The presentation of such factual data should be in the trial Court, and the Federal Supreme Court has on more than one occasion remanded a case to the trial Court for an appropriate ascertainment of such facts: --'Hammond v. Schappi Bus Line', (1927) 48 S C 66 (T). Similar data, are equally important and necessary for determining whether a change in circumstances has product a condition rendering invalid the enforcement of a regulation that was valid when enacted': (1923) 44 S C 405 (N).
24. These principles will be found fully expounded in the following decisions of the Supreme Court of India, viz., -- 'Kedar Nath v. State of West Bengal', : 1953CriLJ1621 (U); -- 'Lach-mandas v. State of Bombay', : 1952CriLJ1167 (V);--'Kathi Raning v. State of Sourashtra', : 1952CriLJ805 (W);--'Charanjit Lal v. Union of India', : 1SCR869 (X) -- 'State of Bombay v. F. N. Balsara', AIR 1951 SC 318 (Y);--'State of West Bengal v. Anwar Ali Sarkar', : 1952CriLJ510 (Z); -- 'Habeeb Mohd. v. State of Hyderabad', : 1953CriLJ1158 (Z1); -- 'Ramprasad Narrain v. State of Bihar', : 4SCR1129 (Z2); -- 'Raja Kulkarni v. State of Bombay', AIR 1954 SC 73 (Z3). In AIR 1951 SC 318 (Y), these principled have been set out in the form of a series of propositions by Fazl All J. For this Court's decisions on Article 14 see -- 'In re C. G. Menon', : AIR1953Mad729 (24); -- 'Sm. Champakam Dorai-rajan v. State of Madras', : AIR1951Mad120 (FB) (Z5); -- 'Krishna Pillai v. Parukutty Ammal', : AIR1952Mad33 (Z8); -- 'Srinivasa Aiyar v. Saraswathi Ammal', : AIR1952Mad193 (Z7); -- 'Syed Mohamed and Co. v. State of Madras', : AIR1953Mad105 (Z8); -- 'Lakshmindra Theertha Swamiar v. Commr. of Hindu Religious Endowments, Madras', : AIR1952Mad613 (Z9)| -- 'V. G. Rao v. State of Madras', : AIR1951Mad147 (PB) (Z10); -- 'Krishnamurthy v. Venkate-swaram', : AIR1952Mad11 (Z11).
25. Thus, the State is entitled to classify according to objects or territories when such classification is based upon a rational ground which is relevant to the matter in question. In-- 'State of Punjab v. Ajaib Singh', : 1953CriLJ180 (Z12) it was held that as classification can be made on geographical basis, the fact that Abducted Persons (Recovery and Restoration) Act (65 of 1949) was extended only to certain specified States does not make it invalid under Article 14 and that the consent of the several States to the passing, of the Act. indicates that the Muslims abducted persons in those States form one class having similar interest to protect and that therefore the inclusion of all of them in the definition of abducted persons cannot be called discriminatory.
In -- 'Rampratap v. Dominion of India', : AIR1953Bom170 (Z13), it was held that the State is not compelled to extend application of parti- -cular law to all territories within the jurisdiction of the State. In -- 'Md. Habibuddin v. Govt. of Hyderabad AIR 1953 Hyd 157 (Z14), relating to Administration of Evacuee Property Act (1950) it was held that it was not bad as it was based on valid classification and that territorial classification also is a good ground of classification. Apart from this, it has been held by the Supreme Court of the United States that the equal protectioa clause contemplates persons and classes of persons, that it has no reference to local and municipal regulations that do not injuriously affect or discriminate, between persons or classes of persona within places or municipalities for which such regulations are made.
Hence, the equal protection clause does not prevent a State from arranging and parcelling out the jurisdiction of the several Courts at its discretion; the equal protection clause is not violated by.any diversity in the jurisdictions of the several Courts as to subject-matter, amount or finality of decision, if all persons within the territorial limits of their respective jurisdictions have an equal right, in like cases and under like circumstances, to resort to them for redress. Each State has the right to make political sub-divisions of its territory for municipal purposes and to regulate their local justice. If may establish one system of Courts for cities and another for rural districts, one system for one portion of its territory and another system for another portion.
Thus, it was held in -- 'Bowman v. Lewis', (1879) 25 Law Ed 989 (Z14a), that where a right of appeal to the Supreme Court of the State was provided in cases arising in certain districts, while in cases arising in certain other districts a right of appeal only to another Court was provided, the equal protection clause was not violated. The aoove principles are applicable in the construction of Article 14 of the Constitution of India. The words 'within the territory of India' at the end of the Article do not mean that there must be one uniform rule throughout all the territories comprised within the Union. A law which applies only to one State and not to the others cannot be attacked under Article 14 on that ground: -- 'Asiatic Engineering Co. v. Achhru Ram'. : AIR1951All746 (FB) (Z15). The mere fact that a different procedural law has been laid down for a particular Court or for the Court in a particular town does not make the law void as infringing the equal protection clause: -- 'Ocampo v. United States', (1914) 234 US 91 (Z16). But even classification on a territorial basis must be reasonable having regard to the object of the legislation.
26. To cite Willoughby (page 1941, para. 1274) once again:
'In (1879) 101 US 22 (Z14a), the important principle was laid down that the equal protection clause of the Fourteenth Amendment does not prevent the application by a State of different laws and different systems of judicature to its various local subdivisions. In this was questioned the constitutionality of a law providing a special Court of appeals with exclusive jurisdiction for the City of St. Louis and a fewspecified countries. To the claim that thislaw denied to the people of these districts theequal protection of the laws in that they weredenied access to the general Court of appeals ofthe State the Supreme Court replied: 'There isnothing in the Constitution to prevent anyState from adopting any system of laws orjudicature it sees fit for all or any part ofits territory..... The fourteenth Amendmentdoes not profess to secure to all persons in the United States the benefit of the same laws and the same remedies..... Diversities which areallowable in different States are allowable in different parts of the same State'.'
27. It is open to the State to change the rulesof evidence and procedure as pointed out byWilloughby (Page 1721, para 1130) as follows:
'It has been held that, so long as the fundamental rights of litigants to a fair trial, as regards notice, opportunity to present evidence, etc., and adequate relief are provided, and specific requirements of the Constitution are not violated, Congress has a full discretion as to the form of the trial or adjudication, and thecharacter of the remedy to be furnished. Thus, the States not being bound by the Fifth, Sixth and Seventh Amendments, grand and petit juuries may be dispensed with by them. So also, within limits, legislatures may determine what evidence shall be received, and the effect of that evidence, so long as the fundamental fights of the parties are preserved; -- '(Fong Yue Ting v. United States', (1892) 149 US 698 (Z17).
No person has a vested right to a particular remedy. 'The State has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the Federal Constitution' -- '(Brown v. New Jersey', (1899) 175 U. S. 172 (Z18)). Statutes of limitations, If reasonable, are not unconstitutional as denial of property of contractual rights. The authorities as to this are so numerous as not to need citation'.
28. In regard to presumptions which can be enacted and incorporated into the statutes the following observations of Rottschaefer (Para 326 Pages 798 to 800) relating to legislative creation of presumptions are pertinent:
'The right to a fair trial that due process accords an accused includes immunity from conviction not based on evidence presented at his trial. It is also a universally accepted principle of our theory of government that an accused is presumed to be innocent and that the public must prove his guilt. The due process clauses of the federal Constitution prevent both Congress and a state from declaring an individual guilty or presumptively guilty of a crime, and to substitute legislative flat for fact n the determination of an accused's guilt: -- 'Mefarland v. American Sugar Refining Co', (1915) 38 S. C 498 (Z19); -- 'Manley v. State of Georgia', (1928) 49 S. C. 215 (Z20).
This does not, however, completely prevent the legislative creation of presumptions although it does limit their creation in important respects. The legislative creation of a conclusive presumption that the proof of a given fact or facts shall establish an accused's guilt of a defined crime does not constitute the establishment of a rule of evidence or of one regulating the burden of proof, but of a substantive rule of law defining a crime. The validity of such legislation, so far as due process is concerned, depends upon the extent to which due process is a limit on the substance of legislation. The present discussion is not concerned with presumptions of that character, but only with those that regulate the burden of proof or operate as evidence.
The usual form of legislation of this type provides that proof of one fact or group of facts shall constitute prima facie evidence of some other fact or facts. Its usual effect is not merely to shift the burden of proof, but also to permit the triers of fact to treat the legislatively defined fact or facts as evidence to be weighed in assessing the accused's guilt. It is invariably held that, where the legislation operates in this manner, due process requires that rational connections exist between the fact proved and the ultimate fact presumed. -- '(Yee Hem v. United States', (1924) 45 S. C. 470 (Z21); -- 'Casey v. United States', (1927) 48 S. C. 379 (Z22). A statute makes proof of the possession of optum sufficient evidence to authorise the conviction of a person charged with knowingly concealing opium imported in violation of law, unless the defendant shall explain the possession to the satisfaction of the jury', and that puts on the accused the burden of rebutting the presumption that the opium was imported subsequent to date when the prohibition of its Importation took effect, has been held valid: -- '(Cockrill v. People of California', (1924) 45 S. C 490 (Z23); -- 'Hawes v. State of Georgia', (1921) 42 S. C. 204 (Z24); -- 'Morrison v. People of California', (1932) 53 S. C. 401 (Z25-30); -- 'Morrlson v. State of Cali- fornia', (1933) 54 S. C 281. But one that made proof of a bank's insolvency presumptive evidence that the insolvency was fraudulent has been held so arbitrary as to deny due process. Due process further requires that the statute permits an accused a fair opportunity to repel even a valid presumption, and a statute that unreasonably restricts the character of the proof by which the presumption can be rebutted violates due process; -- 'Ibid Manley v. State of Georgia', (Z20). It depends upon the particular statute whether it accords with that constitutional requirement in this respect. The extent to which due process limits the weight that a statute may require or permit a jury to give to presumptions in determining the question of an accused's guilt is enmeshed in doubt--'(State of New Hampshire v. Lapointe', (1924) 31 ALR 1212 (Z32) ).
It has been stated that there are presumptions that are not evidence in a proper sense, but simply regulations of the burden of proof; (1927) 48 S. C. 373 (Z22)'. It is probably the law that due process requires such presumptions also to satisfy the standard that there be a rational connection between what is proved and what is to be inferred: -- 'Ibid Manley v. State of Georgia', (Z20). It requires in any case either that the government 'shall have proved enough to make it just for the defendant to be required to repel what has been proved', or that 'upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accused without subjecting the accused to hardship or oppression'; (1933) 54 S. Ct. 281 (Z31).
A statute that puts on an accused the burden of proving facts peculiarly within his knowledge and hidden from discovery by the Government is valid on that basis; -- '(Ibid, Casety v. United State', (Z22). However, a statute that prohibits the occupation of agricultural lands by an alien ineligible for naturalization violates due process so far as it makes allegation of membership in a race thus ineligible plus proof of occupation of such lands the basis for shifting to those accused of violating the statute the ourden of proving that the alien is either a citizen or eligible for citizenship; -- 'Ibid Morrison v. People of the State of California', (Z25-30). The Court's view was that the probability of injustice to an accused therefrom out weighed the public interest in convenience of proving its case. The principle invoked was that due process prohibits the transfer of the -burden of proof to the accused where this results in grave injustice to him that far out- weights the procedural convenience to the Government therefrom. It is probable that the same principles would determine the validity of creating presumptions that shifted merely the duty to go forward with the evidence. It is certain that they limit the power of the legislature to shift either directly as well as by the establishment of presumptions.'
29. Similarly Corwin in 'The Constitution, what it means today' Page 177 points out :
'Finally, while the criminal law often permits the evidence offered against a defendant to be. supplemented by presumptions to his disadvantage, there must always be a rational connection between, the facts proved and the fact presumed, a matter as to which the Supreme Court is the final judge under the 'due process' clause. Thus it was held - to be reasonable 'for Congress to enact that a defendant who was discovered to be in possession of opium should be required to assume the burden of proving that he had not obtained it through illegal Importation. On the other hand, it was held recently that there was no such rational connection between the possession of a firearm by a person who had been previously convicted of a crime of violence and the presumption created by the Federal Firearms Act of June 30, 1938, that he had obtained the firearm in violation of the Act. -- 'Tot v. United State', (1942) 319 US 463 (Z33).'
30. To sum up, the meaning of equality contemplated by Article 14 does not fetter the discretion of the State to pass appropriate laws to meet different situations, and solve different problems that arise in the affairs of the State dedicated to the ideal of promoting the common weal of the nation entrusted to its charge. Hence, although the Article lays down an important fundamental right which should be closely and vigilantly guarded, in considering the Article the Court should not adopt a doctrinaire approach which might choke ail beneficial legislation. In applying the doctrine of equality, therefore, no narrow dogmatic constitutional niceties should hamper the true exposition of the Constitution as a living practical Instrument of Government of men and affairs. Thus, equality before law and equal protection of laws would not be offended by territorial discrimination based upon reasonable classification arising from the particular factual background relating thereto.
31. Bearing these principles in mind let us examine the background of the Madras Cit Police Act of 1888.
32. The following graphic, accurate and Instructive description during the days of the East India Company of the old Madras Police or the Pollgars of Madras as they were called is given by Dr. E. Asirvatham, M.A., Ph. D., Reader, University of Madras. (The Madras Tercentenary Commemoration Volume published on 4-8-1939 by the Indian Branch of Humphrey Milford. Oxford University Press, for the Madras Tercentenary Celebaration Committee pages 167 and following):
'**The police arrangements of old Madras were rested in hereditary official known as the poligar of Madras. The first of these watchmen, named Pedda Naick, ('senior Naik' or 'big Peon'), has left his name to a large section of the town, known as Peddanalkpetta. Formerly a suburb of Madras, it is to-day a part of George Town.
The office of the Poligar existed in the village of Madraspatam from very early times, and was recognised by the British from their first settlement. According to one account, the Pollgars were the descendants of the Naiks, or chiefs, who had jurisdiction over the southern kingdom, such as those of Tanjore and Madura, under the general contrpl and supervision of the Rajah of Vijayanagar. Poonamallee was owned and managed by the Poligar of the Damarla family. It was this family which ceded certain villages including Madras Coopam, to the Merchants of the English Company in return for an annual sum of Rs. 1200 Madras Pagodas, besides the expenditure involved in supporting the 'Holy Pagodas'.
In the early days of the East India Company, the Poligar's police duties extended to the territory within the 'Bound Hedge' outside the Fort, i.e., to the Black Town and the pettas. After the fashion which prevailed in the villages of the time, the Foligar was responsible for the peace of the town. In return -for his services, the Poligar was given certain paddy fields free of rent, and was allowed to levy petty duties on rice, fish oil, betel-leaf, and betel nut. He was also allowed to levy small duties on Imports and exports. His chief duty was to provide a staff of peons (also known as taliars or watchmen) for the protection of the town. When any crime was committed, it was his business to detect the criminal; falling which he had to make good the losses of those who had suffered robbery. As one writer observes: 'the Poligar was thus the prototype of the modern Burglary Insurance Company'. The number of Poligar's peons in 1640 was twenty; but as the town grew and the work Increased, the number also had to be increased. in 1659 the number was fifty and in 171 it was raised to a hundred.
Another duty of the Poligar was to providethe Governor of Port St. George, when calledupon to do so, with a bpdyguard of 150 peons;and provide escorts for officials. When 'ourdread Sovereign King James the Second' wasproclaimed King in 1685, the Port. St. GeorgeConsultation recorded: 'The whole Council, with the Commanders ofShips and the host of the Rt. Hon'ble Company's servants and English Gentlemen, Inhabitants of the City, came to attend the President at the Garden House, in a handsome, equipage on horse back. After that came Peddy Nague with his peons, and the Chief Merchants, with a great number of the Inhabitants of the Gentue Town, all in Armes, bringing with them also Elliphants, kettle Drumbs, and all the country Musick'.
At a time of insecurity in 1741, the Company sent the Poligar to escort the Nawab's family into Madras with 200 peons to the accompaniment of 'country music', which was probably the precursor of the Governor's Band. On State occasions such as the installation of the Mayor, the Poligar rode at the head of his peons in procession, accompanied by 'country music.' In1727 the order of the procession was:
'Major John Roach on horseback at the head of a Company of Port Soldiers, with Kettle drum, Trumpets and other Music.
The Dancing girls with the Country Music.
The Pedde Naigue on horseback at the headof Peons.
The Marshall with his staff, bn horseback.
The old Mayor on the right hand and the newon the left.
The Aldermen two and two, all on horsebackSix halberdiers.
The Company's Chief peon on horseback, withhis peons.
The Sheriff with a white wand, on horeback. The Chief Gentry In the Town, on horeback.'
In 1699 when Ensign Thomas Salmon, who later became a well-known literary figure and eleven others ran away from Fort St. George. Garrison it fell to the lot of the Poligar of Madras to apprehend the deserters and send them back to Madras. The old papers say that the deserters were apprehended sixty miles away from Madras in the Interior and were sent back to the Port a month later under promise of pardon. Notwithstanding the promise, Sal-mon was committed to prison and a few months later deported to England.
When a man was absconding and his brother was suspected of concealing him, the Poligar, in accordance with the custom of the day, recommended that the brother be confined In the Choultry till the man be delivered up; and the Governor gave the necessary sanction.
Watching merchants' goods and merchandise which were imported from abroad formed a part of the duties of the Poligar of Madras. The Poligar was responsible for watching the Company's clothes from being stolen when they were being washed at the washing town.
The Poligars at times served as recruitingofficers. In, 1698 when the Company's peonswere inadequate to cope with the trouble withDaud Khan, the Pedda Naick's Talliars wereutilised to supplement the garrison. When hostilities broke out between the French and Englishin 1745, two hundred peons were engaged fromthe Poligars in the neighbourhood of Madras.In the following year the Nawab was joined bythe Pedda Naick with his peons and a body ofPoligars.
The Poligars wnjoyed several privileges, one ofthem being freedom from arrest. In 1736 the Mayor's Court serjeant arrested a Foligar in a village 1 1/2 miles from the Fort which was out of the Company's bounds, although, according to the Charter, the jurisdiction of the Court extended ten miles. On receipt of this news the Mayor was informed that the Poligars were exempt from arrest, and the man was then set free and compensated. The Fort St. George Consultation issued an order on 19-4-1736 to the effect that 'no Sheriff do serve any warrant of arrest or execution upon the person of the Poligar of Madras or any of the Poligars of the villages, nor upon their dwelling houses where they keep their prisoners, nor upon any of the duties due and payable to them for the guard and safety of the town and villages.'
Another privilege enjoyed by the Poligars was exemption from the payment of quit rent. In 1778 Government resolved 'that the Parlars in the Parachery, the Poilgar and his followers together with the menial servants and poor Moors, consisting of peons, housekeepers, masal-gies, etc., be excused from paying quit rent or Scavenger's duty. But with respect to the washermen, town Pagodas, Europeans, Armenians and others, who evade it by making objections of various kinds, that the Rental General do proceed to recover it of them'.
In 1672, re-affirming earlier orders regarding the Pedda Naick's allowances, Sir William Langhprn, 'Governor and Agent for Affairs of the Honourable English East India Company in Fort St. George' ordered that:
'In Paddy Banksall the former allowance was Custome for the Gentu Pagoda, for every heape of paddy, one measurp; for Peddlnagg the watchman, on every great ox load of paddy, 3/4 measure; for small ox-load, 1/2 measure.
'The allowance of seafish was: for every great nett, 6 fish to the Hon'ble Company, and to Peddinagg the watchman 10 fish. And on the fish they catch with a hooke, one fish for the company, and one for Peddinagg the watchman:..'
The duties charged of Christians were less than those charged of others, and the Company at one time protested against such dis-crimination to Fort St. George. In spite of the protest, the 'usual duty to the Pedda Naick' in 1684 was 'for all Christians 3/32, and for all Jentues and Moores 5/32 per cent.' As an acknowledgment that the Poilgar held his place from and under the Company, according to the Cowle issued by Governor Pitt in 1701, the Poligar was required 'to bring us in every year twelve head of deer in their season, and twelve Wildhogs in their season.'
Towards the close of the seventeenth centurythere was a protracted dispute between Tim-appa Naick and Angarappa Naick for the postof Poligar of Madras and was finally decided byGovernment in favour of the latter in 1699.During the siege of Port St. George between 1758-59 the Poligar of Madras died. After his death it was resolved that his office and the, petty taxes levied in support of it 'be suspended till further orders'. Sepoy guards in the Black Town were substituted for the Poligar's watchmen. But the demand for the Poilgar was so great that five years later the old plan was restored and the son of the late Peddanaique was appointed Poligar.
In 1777 Vera Perumal, the Board Overseer of the Markets, recommended that '25 Sepoya-and some of the Pollgar's peons attend at the Choultry office to prevent riots, secure the quiet of the bazaar and the streets; and at night patrole the streets to pick up disorderly people, or those who can give no proper account of themselves'. The orders of the Board on these proposals were 'a Guard and some Pollgar's peons to attend at the Choultry office for the purpose here mentioned'.
In the last quarter of the eighteenth century there were several complaints of the Pollgar's conduct. He was accused of having allowed to escape from his Choultry a notorious robber who had been sentenced by the Court of Quarter Sessions of January, 1795, 'to be publicly whipped three times, and to be kept to hard labor on the roads and public works for the space of two years.' The Poligar was deprived of his fees at the sea beach by the Board of Revenue. When he made his 'humble representation' against this action, the Government issued the following order in 1796: 'The Board are aware that the new regulations established for the collection of customs of this Presidency would deprive the Poligar of the fees in question; but neither the utility of his office nor the merit of his conduct entitle him to any exemption from the general rule.'
When official protection and patronage were withdrawn, it virtually meant the extinction of the office of Poligar. The Inhabitants of the Black Town, however, petitioned the Government to retain his office in order to watch their houses and goods. The petition read:
'That from the establishment of Madras, Peddanaik the Poligar had continued to receive certain fees from your petitioners and merchants for watching their houses and goods, and held himself responsible for thefts committed at your petitioners' houses, and of the said merchants' goods and merchandise, Government having lately ordered the said Poligars fee ..... (to) be discontinued in consequence of his having incurred your displeasure, thereby the office of the said Poligar became abolished and your petitioners art constantly labouring under great fear and apprehensions to secure their properties; therefore may it please your Lordships to order the said Poligar's fees to be paid by your petitioners and merchants as usual, in condition of his answering the thefts committed at your petitioners' houses, which shall Induce him to employ a number of watchers and thereby to secure your petitioners' properties --'. In 1798, in accordance with the recommendation of a police committee, the Governor re-instated the Poligar as 'poligar of the Black Town and of the washing town'. The Cowl issued by him ran as follows:
'A Cowl granted by the Right Hon'ble Lord Hobart. President and Governor of Fort St. George, and the Council thereof, to Codun-gone Ungaraph Naig-
'1st. Having constituted and appointed you to be watchman of the City of Madras and of the washing grounds near the Bound Hedge on the following terms, you must keep a sufficient number of gopd peons, not less than 100 at least, for the preventing of robberies and other disorders in the said City; and for their maintenance we allow you the following custom.
'2nd. That for all goods brought into the Land Custom House by all the native merchants you shall receive fees as formerly, viz., on piece goods as cleared at the Custom House, seven and one half cash on each Pagoda value; on weighing goods as cleared at the Custom House, twenty cash on each Pagoda value.
'3rd. That you shall collect from all goods of all the merchants excepting Europeans, paying duty at the Sea gate as formerly; piece goods, raw silk, drugs, grain, lap oil seeds; twenty seven and a half cash on each Pagoda value; on paddy, rice Comboloo ..... ..... Timbers, planks, palmiras, reapers and redwood, seven and a half cash on each pagoda value.
'4th. That all inhabitants of the town, ex-cepting Europeans, shall pay you yearly, for a great house three fanams, and small houses two fanams.
'5th. The peons aforementioned are to be always kept and employed for the security and peace of this city of Madras as the Governor shall direct.
'6th. When any person paying Custom as aforesaid to you has been robbed, such person will acquaint you, and if satisfaction is not obtained in due time. In any case not exceeding two months, application shall be made to the Governor or the Justices of the Peace, who will take proper measures to cause you to make good the property.
'7th. The Hon'ble Company will allow you the usual fee of seven and half cash on each pagoda value of cloth for watching their cloth at the Washing Green, but it is required that you should make good the property that may be robbed'.
By the time this Cowl was granted it is probable that the Pollgar had come under administrative control. 'The office of Pollgar was 'abolished in or about 1802 and a regular police was formed which, however, continued the methods and persons of the old system. In 1858, another effort was made at reform, and the police force was remodelled on the same lines as the provincial constabulary. Then in 1888 the metropolitan Police organization was placed on its present footing'.'
33. So to this interesting history of the Madras City Police we shall now turn and deal with it under three heads (1) history from 1802 to 1888; (2) the object and reasons for which the City Police Act of 1888 was passed; (3) the Report of the Select Committee thereon and its passage through the then Legislative Council.
34. In Madras (1) Regulation XXXV of 1802 seems to have been the earliest Police Regula-tion, and the last, Regulation IV of 1821. The state of things in Madras about the police establishment had been well depicted in a letter of 11-4-1826, by the Court of Directors. Upto 1843, the supervision of the Police was vested in the Court of Circuits. On the abolition of those Courts, their powers were completely transferred to the Sessions Judges, who, within their respective zillahs. were invested with precisely the same powers of supervising the proceedings of the Magisterial and Police authorities, as were exercised by the Courts of Circuit within their jurisdiction. The Sudder Court, in their letter dated 22-11-1854, represented that the disadvantages of the existing system were, that the duty of supervising the Police being entrusted to so many officers, some must necessarily be unfit, and that the zillah Judge was too much on a par, in respective position, with those whom he had to control.
In a letter addressed by the Government of Madras to the Supreme Government on 14-8-1855, the former declared that the state of Police in the districts under the Madras Presidency was most unsatisfactory; that the want of an efficient preventive and detective Police called loudly for a remedy; that the Magistrates were debarred, by the other calls upon their attention, from devoting to the Police that unremit-ting care and attention, which were essential to the detection and prevention of crime; that the inability of the Police establishments to cope with the prevailing amount of crime, or to ensure protection to person and property had latterly become more than over marked and notorious; that, in 1854, there were 1,724 dacoities, of which 481 were attended with aggravating circumstances. The remedy proposed was the separation of the Police from revenue functions, the appointment of a Superintendent of Police for each district and a Commissioner of Police for the whole Presidency.
35. Thus, the system of Police in Madras in force about the year 1854 was that which was left by the native Governments which preceded the British Rule. The British took it exactly as they found it. It was a little altered but in no wise Improved. The foundation of the system was the village Police. The hereditary headman of the village, with his scribe (the Curnum), the watcher and his assistants, the Vettlans, formed the working agency. These were subject to the district or pergunnah officers, and these again to the Governor of the province. There was no division of authority. All powers, whether Revenue, Judicial, Military or Police were concentrated in the same functionaries throughout their several grades. They were not fettered by forms of procedure or rules of law. When a crime was committed, the inhabitants of the village were held responsible. They were bound to produce the perpetrator, or to make good the loss, or were subjected to fine. If they proceeded In tracing the criminal to another village, the responsibility was transferred to it. The systemwas rude. Its action was often arbitrary. Butit imposed upon all an interest in maintainingorder. (36) In 1854 (23rd August), the Court of Directors remarked, that the system of superintendenceof the local administration in Madras stood inneed of revision and Improvement and suggested with regard to Police, that it might be advisable to place the Police Establishment underthe immediate direction and control of a District , Superintendent of Police, as in Bombay,and finally the Honourable Court called for a report on the subject.
37. The condition of the entire police organisation and administration in India about the pear 1856 was summarised by the Court of Directors in a letter dated 24-9-1856, addressed to the then Governor General of India in Council.
38. All these points were fully referred to in the speech of Sir Bartle Prere on 29-9-1860 when the moved the first reading of a Bill 'for the better regulation of the Police' in the Imperial Legislative Council of India in which he gave a history of the state of the Police establishment throughout India as it existed about the time of the appointments of the Police Commission of 1860, whose labours resulted in the enactment of the Police Act (5 of 1861). It may toe pointed out that the Court of Directors in their despatch of 1856, after reviewing the exist-ing state of the police in the different parts of India at that time, called for a report
'in communication with the other Presidencies, and to the expediency of the general re-organization of the Police throughout India, upon some such system as that which obtains with respect to the police in the Punjab, or perhaps the Constabulary of Ireland; and as to the mode and cost of the proposed reform.'
39. But before the Imperial Government was able to suggest or enact any comprehensive reform or legislation, they passed two or three enactments, chiefly, Act 28 of 1852 (Police Bombay), Act 13 of 1856 (Amended by Act 48 of 1860) and Act 24 of 1859 (Madras), which regulated the police of the presidency towns of Bombay, Calcutta, Madras and the mofussil districts of the Madras Presidency respectively.
40. The Madras Act, 24 of 1859 (for the bet-ter regulation of the Police within the territories subject to the presidency of Fort St. George) was passed on 6-9-1859, and
'before the end of the official year, its opera-tion had been extended to nine Districts of the Madras Presidency. To these six more had been added before the beginning of September; in all fifteen districts out of twenty in which the introduction of the new. Constabulary has either been fully, or in great measure effected.'
It was supposed to have proved most successfulin its operation before it had been in force formore than a year. The effect of this Act wassummed up by Sir Bartle Frere in these words:
'Care had been taken to render the village Police effective in every district simultaneously with the introduction of the regular Constabu-lary. No single case of jarring with the magis-tracy had occurred. This was remarkable, as a transition state was full of anxiety, and nothing but great forbearance on both sides could have enabled it to be passed through in peace. He thought that what he had said on the sub-ject of the Madras Police would be satisfactory to the Council as tending to show that they had not been wrong In passing that Act.'
As Mr. Sconce observed, it was thought that a change in the Police administration which was applicable to Madras might not be inapplicable to the whole of India.
41. The result was that the Government of India passed a resolution on 17-8-1860, appointing a Commission for the purpose of inquiring into the state of the Police throughout British India with the view of ascertaining how it might best be improved, how the Military might be released of their Police duties and how the then heavy expenditure on Police was susceptible of reduction; and the Government suggested that
'A draft of a Bill on the model of the Madras Police Act (Act 24 of 1859) may be submitted to Government, empowering the local Governments to give effect to any such reform as they may desire to carry out in furtherance of the suggestions of the Commissioners. The Bill may be conveniently drawn as applicable, in the first instance, to a particular province -- as Oudh or the Punjab, or Sind -- but, it should be so framed as to be capable of extension to other parts of the country by proclamation.'
42. The Government in their Memorandum accompanying their resolution above referred to, laid down what, in their opinion, were the characteristics of a good police force for India, which in their opinion were as follows:
I. It should be entirely subject to the Civil Executive Government.
II. The duties of the Police should be entirely Civil, not Military.
III. The functions of a Police are either pro-tective and repressive or detective, to prevent crime and disorder, or to find out criminals and disturbers of the peace. These functions are in no respect judicial.
IV. The organization of the Police must be centralized in the hands of the Executive Adi ministration.
V. The Organization and discipline of the Police should be similar to those of a Military body.
VI. The appointment and dismissal of every policeman should rest with the European Officer to whom he is immediately responsible.
VII. The Police should always have a uni-form dress.
VIII. The arms of the Police must vary according to their duty.
IX. The direction of the whole interior economy of the Police must rest exclusively withthe officers of Police.
X. There cannot be more than one Police in one locality.
XI. Where practicable, they should be drawn from the country in which they serve.
43. Accordingly, the Police Commission set to work, and, after much deliberation, arrived at unanimous conclusions regarding the principles,' system and method, on which a good Police for all India should be organized, and these conclusions they embodied in a series of propositions and also drafted an Act, which, in the event of these propositions being approved by Government, should be submitted to the Legislature.
44. After the Bill, drafted by the Commissioners on the basis of the British and Irish Constabulary Act and adapted to Indian, conditions, had duly passed through the several stages of the Legislative Council, it was passed into law as Act 5 of 1661, on 22-3-1861.
45. It will be seen from Section 46 of the Act that the Act was not at once brought into operation throughout British India. As observed by Sir Bartle Frere in the Legislative Council of the Governor-General of India on 6-10-1860, the Act was made simply permissive in its character and the Local Governments were at liberty to defer its adoption until they were satisfied that the time was ripe for such a course.
48. But it has been enacted that the entireAct 5 of 1861 shall, for the purpose of Section 2 ofthe Police Act 3 of 1888, be deemed to takeeffect throughout British India. (See Section 2(6) ofAct 3 of 1888). Further, portions of this Act,viz., Sections 15, 15A, 16, 30, 30A, 31 and 32 of theAct have been declared to be in force, and havebeen extended to the whole of the Madras Presidency.
47. In the Provinces of Bombay, Madras and Bengal, there are Special Police Acts respectively in force in the metropolis and in the mofussil as stated below namely.
BengalAct 4 of 1866Act 2 of 1866 and a number of other m nor ActsBombayArt 4 of 1902 Acts. Act 4 of 1890 MadrasAct 3 of 1888Act 24 of 1859.
48. It must be mentioned here that, in the year 1888, the Legislature of India passed Act 3 of 1888, with the object of removing certain difficulties experienced in dealing with the Police of the Railway system under the General Police Act of 1861 and under the Local Police Acts of Madras and Bombay, which restricted the employment of the Police Officers to the Presidency, province or place of the police establishment of which they were members.
49. Thus the Police Act 5 of 1861, as pointed out above, laid' down the general principles of a Police Act and was in the first instance applied only to the particular province mentioned above. But, in the provinces of Bengal, Bombay and Madras, where there have been enacted separate Acts for the presidency towns and for the mofussil districts, the principles laid down in the Police Act (5 of 3861) have been adapted and worked out. In great detail to meet the particular conditions of each particular provinceand metropolis.
50. The Statement of objects and reasonsof Madras Act 3 of 1888 has been printed apage 17 of the Fort St. George Gazette Supplyment dated 8-11-1887.
'(1) This Bill reproduces and consolidated the provisions of existing laws relating to the Madras Town Police, with such amendments and additions as the experience of the pasttwenty years has suggested.
2. The bill contemplates the separation ofthe Madras Town Police from the Rural Constabulary, in accordance with the law andpractice in force in the other PresidencyTowns and in England and Ireland. Some uncertainty of administration and some confusion is at present caused by the attempt toapply law, which properly applies only to therural police, to a town force working at thesame time under other and distinct laws.Moreover the management of a city police re-quires distinct treatment and a distinct orga-nisation. The provisions of Section 2 of Madras Act8 of 1867 are, therefore, repealed and the pre-sent Bill has been made complete in itself,obviating the necessity for references to otherspecial and local laws. At the same time Sections 16 and 18 of the Bill provide for mutualassistance and a continuity of the powers ofboth town and rural constabulary whereveremployed.
3. Special authority has been conferred on the Commissioner of Police to regulate and inspect all places of public resort or entertainment having an area of 500 square feet. This is in accordance with the recommends tion of the jury at the inquest of the late Partfire, recorded in G. O., dated 15-4-1887 No. 822, Judicial. Power has been taken (S. 68 to prohibit assemblies likely to be dangerou to the public peace or safety as instance have occurred, and may again occur, in which such a power summarily applied would have had a beneficial effect.
4. All existing bye-laws sanctioned by Government have been re-enacted as part of thesubstantive law, and a salutary provision ofthe Calcutta Police Act against the practice offrightening horses by noise has been introduceed -- (S. 70, Clause (xiv) ). The necessary powerhave also been taken (S. 103) to ensure effecttive action on the occasion of a fire in thetown and to protect Police Officers or firemenacting in the execution of their duty.
5. Finally, it has been considered desirableto embody in the Bill the provisions of Mad-ras Act 3 of 1882, empowering the quarteringof additional police in any disturbed part ofthe town, and the levy of the cost of such additional police from the inhabitants of thedisturbed quarter. This has been done in Sections 25-26 of the Bill.'
51. The Select Committee on the bill to regulate the Police of the City of Madras consisted of Sir Phil. P. Hutchins, Humayun Jah, H. E. Stokes, S. Subramanian (later Officiating Chief Justice, Madras). S. R. Turnbull and J. H. bring-Branson and their Report is published is a supplement to the Port St. George Gazette dated 31-1-1888. (52) The relevant passages in the Select Committee's Report are:
'The present measure consolidates several existing laws, and in one or two cases legalises practices already in force. Section 33 is a new provision of law, and, as explained in para-graph 3 of the Statements of Objects and Reasons accompanying the Bill, has been framed in consequence of the discovery made after the fatal fire in the People's Park that no power at present exists to enforce proper precautions being taken for safety of the pub-lic collected in any enclosed place or build-ing. Section 64 is, we believe, a useful provision of law which we have retained in the Bill with slight verbal modifications.'
(Section 64 in the Bill is the present section viz., whoever is found in possession or is proved to have been in possession of anything which there is reason to believe to be stolen property or property fraudulently obtained and for the possession of which, he fails satisfactorily to account, shall be liable, on conviction to fine not exceeding one hundred rupees, or to imprisonment of either description not exceeding threemonths).
53. The abstract of the proceedings of the Council of the Governor of Fort Saint George assembled for the purpose of making laws and regulations under the provisions of the Act ofParliament 24 and 25 Vict. Ch. 67 and consisting of the Governor, Commanding Officer, Sir (sic) G. Arbuthnot, Master, Hutchins, Strokes Subramania Ayyar, Acting Advocate General, (sic)rnbull, Chentsel Rao, and Humayun Jha published as Fort St. George Gazette Supplement March, 27, 1888, shows that Mr. Hutchins (sic) a very short speech commended the Bill say-ing that subsequent to the receipt of the report two or three petitions had been received and considered and that some observations of the Government of India had come down and been considered and only fourteen almost verbal amendments were proposed. The Advocate General seconded the motion. The Bill was(sic)ssed into law.
54. Thus, it will be seen that the provisions (sic) the Madras City Police Act, 1888, came into (sic)tence as a result of the factual back-ground (sic) out above and the Legislature had to make a distinction between the Police Act intended purely for an urban area like the City of Madras which was the only big town then and the mofussil. Provisions like Section 65 had to be inserted in the City Police Act on account of the circumstances incidental to a growing town like Madras arising out of chaotic surroundings. The town while growing on the commercial side was, on account of its attracting adventurers and a large floating population, developing fast in the criminal side also. The facilities for detection in small places where every one is known to the other could not exist in a cosmopolitan place. That is why the Select Committee has described the section as a useful provision. In this connection it will be remembered also that it is only a presumption and nothing more and in laying down the presumption the Legislature has not yet gone beyond the limits set out by the standard text writers which would make a presumption of this nature repugnant to the 'due process of law' provision of the Constitution. In fact it does not even proceed beyond the usual presumptions under Section 114, illustration (a), Evidence Act. The usefulness of this provision has not diminished with the passage of time and has not in any way become objectionable or discriminating. Even now in the City of Madras the greatest single menace is the problem of receivers. Two criminal lawyers who have specialised for a long time in the Madras City Criminal Courts, viz., E. L. Ayyar Esq., Bar-at-Law in his 'Crimes, Criminals and Courts' and Sri N. Kasturi Ranga Iyengar, B.A., B.L., Advocate in his 'Criminal Investigation and Procedure' have referred to this problem. Mr. E. L. Ayyar writes: '
Not even a tenth of the thefts and burglaries would be committed in Madras if it were not for the receivers who knowing full well that the property sold or pledged to them ought to be articles concerned in a robbery or theft, buy or advance money on them. Some of the notorious house-breakers of Madras have assured me that if it were not for these 'respectable' receivers of stolen property, they would not be tempted to steal so often. They find a surreptitious and a ready market for their stolen valuables which acts as an incentive to further burglaries and thefts. If in all cases the receivers are also prosecuted as soon as burglar or thief is convicted, it may contribute to lessen these crimes. Unless there is greater organization among these burglars, thieves, and receivers, . the truth would get found out. Such an oragnlsatlon does not exist and if one is brought into existence these criminals are bound to quarrel and 'truth will out. The habitual receivers of stolen goods in Madras are very well acquainted with law and it would be difficult to secure a conviction. But, notwithstanding their cleverness let a court of law be called upon to decide whether in grave cases the circumstances warrant the court to come to the conclusion that the receiver ought to have known or must have had reason to believe, the articles sold or pledged were concerned in a crime.'
Mr. N. Kasturl Ranga Iyengar writes (page 48-49) :
'In the Madras City various Instances can bedaily seen from the Marwari shops the proprietors of which daily figure as prosecution witnesses for the police in the Police Courts. They advance money on the pledge of properties stolen by the pilferers who are too numerous in the city and even though the receivers of stolen properties had at the time of. the pledge of such articles grave suspicions about the ownership of the pledger to the pawned goods they acquiesce in them, and thus indirectly are responsible for such thefts. In other words, by readily advancing monies to persons whom they doubt to be of suspicion character they encourage such course of conduct on the part of Criminals. There are other instances in which professional receivers of stolen property provide ample facilities for disposal of the same by not only regularly pur-chasing them, but also help criminals by advancing loans by protection when suspected by the police, by giving evidence and standing security for them in Court by tampering with evidence for the prosecution, and by looking after their families when they are in jail. Such Marwadis and others require to be seriously dealt with by courts. In the case of casual receivers of stolen -property evidence as to the cir-stances in which the recovery was made, should be sufficient to ensure conviction.'
The Madras City Police Act and Section 65 are also getting extended to every growing town when its growth and conditions approximate to that of Madras and in fact to the big cities of the South the City Police Act has been extended now.
55. Therefore, looked at from any point of view it cannot be stated that either the City Police Act in general or Section 65 in particular offends Article 14 of the Constitution. The plont taken must fall.
56. Point (C): -- Under Clause (3) of Article 20 of the Constitution no person accused of any offence shall be compelled to be a witness against himself. This provision embodies a fundamental principle of British Jurisprudence and also has its counterpart In the Federal Constitution of the United States of America. Under Amendment V to the above Constitution it is expressly provided that no person shall be compelled in any criminal case to be a witness against himself. It has also been held that the due process clause in Amendment XIV, under which no State shall deprive any person of life, liberty or property without due process of law, is wide enough to include the prohibition against compelling the defendant in a criminal prosecution to testify, by fear of hurt, torture, exhaustion or any other type of coercion, against himself: -- 'Adamson v. California', (1946) 332 US 46 (Z34).
57. This V Amendment and the due process of law clause in the XIV Amendment have been the subject of the following comments by Professor Corwin in his 'The Constitution and What it Means today' at pages 166-167:
'The source of this clause was the maxim that 'no man is bound to accuse himself ('nemo tenetur prodereor accusare-speipsum')' which was brought forward in England late in the sixteenth century in protest against the inquisitorial methods of the ecclesiastical Courts. At that time the common law itself permitted accused defendants to be questioned. What the advocates of the maxim meant was merely that a person ought not to be put on trial and compelled to answer questions to his detriment unless he had first been properly accused, i. e., by the grand jury. But the idea once set going gained headway rapidly, especially after 1660, when it came to have attached to it most of its present-day corollaries.
The Supreme Court's interpretation of this clause of Amendment V embodies three important propositions: First, an 'accused' on trial cannot be required to take the stand at all; secondly, a 'witness' in any proceeding whatsoever in which testimony is legally required may refuse to answer any question his answer to which might be used as evidence against him in a future criminal prosecution, or which might uncover other evidence against him; thirdly, neither an accused nor a witness may, generally speaking, be required to produce books and papers which might furnish incriminating evidence against them, or which might disclose new evidence' -- 'Boyd v. United States', (1886) 116 US 616 (Z35); --'Counselman v. Hitchcock', (1891) 142 US 547 (Z36).
Willoughby, further points out in his 'Constitution of the United States', page 1165 (S. 711) as follows:
'By the Fifth Amendment it is provided: 'Nor shall a person be compelled, in any criminal case, to be a witness against himself. The guaranty thus furnished Is one independent of the guaranty of 'due process of law' and is thus one which, so far as the Federal Constitution is concerned, is not secured to the individual to the State Courts. After an elaborate consideration of the meaning of the phrase 'due process of law', and an historical review of English practice with reference to the immunity of the accused from self-incrimination, the Court, in -- 'Twining v. New Jersey', (1908) 211 US 78 (Z37) said 'We think It is manifest, from this review of the origin, growth, extent and limits of the exemption from compulsory self-incrimination in the English law, that it is not regarded as a part of the law of the land of MAGNA CHARTA or the due process of law, which has been an equivalent expression, but, on the contrary, is regarded as separate from and independent of due process.
It came into existence not as an essential part of due process but as a wise and beneficent rule of evidence developed in that course of judicial decision.' Continuing, the Court showed from the circumstances attending the incorporation of the privilege in the Federal Constitution and from the fact that four of the States in their first Constitutions did not insist upon the privilege where it would have a much wider application, that it was not considered to be inherent In due process of law.
Finally the Court said: 'Even if the historical meaning of due process of law and the decisions of this Court did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which is the inalienable possession of every citizen of a free Government. Salutary as the principle may seem to the great majority, it cannot be J ranked with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption has never been universally assented to since the days of Bentham, many doubt it today (1) and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. It has no place in the Jurisprudence of civi-lized and free countries outside of the domain of the common law, and it is nowhere observed among our own people in the search for truth outside the administration of the law.'
(C.f. Justice Benjamin N. Cardozo 'justice would not perish if the accused were subject to a duty to respond to orderly enquiry -- 'Palko v. Connecticut', (1937) 302 US 319 (Z38) Per contra.
'So long as the presumption of innocence remains a part of our legal system evidence against an accused should come from sources other than the accused himself' Osmond K. Franckel our Civil Liberties P. 148.
On account of this constitutional right it is established that when the accused does not take the 'stand in his own defence, it may not be adversely commented upon by the Court or by the opposing counsel as is the case in England. But when, however, he does elect to testify, but fails to explain in a satisfactory manner incriminating circumstances, the fact may be pointed out to the jury.
In -- Caminetti v. United States', (1916) 242 US 470 (Z39) the Court said:
'We think the better reasoning supports the view sustained in the court of appeals in this case, which Js that where the accused takes the stand in his own behalf and voluntarily testifies for himself (Act of March 16, 1878, 20 Stat. at L. 30, Chap. 37, Comp. Stat. 1913, S 1465), he may not stop short in his testimony by omitting and failing to explain incriminating circumstances and events already in evidence, in which he participated and concerning which he is fully informed, without subjecting his silence to the inferences, to be naturally drawn from it.
When he took the witness stand in his own behalf he voluntarily relinquished his privilege of silence, and ought not to be heard to speak alone of those things deemed to be for his interest, and be silent where he or his counsel regarded it for his interest to remain so, without the fair inference which would naturally spring from his speaking only of those things which would exculpate him and refraining to speak upon matters within his knowledge which might incriminate him.' In other words if a person waives his constitutional immunity and elects to disclose his criminal convictions he is not permitted to stop but must go on to make a full disclosure. --'Brown v. Walker', (1895) 161 US 591 (Z40).
58. Therefore, let us examine the corresponding provisions in India under S, 342, Cr. P. C. Under Section 342, Cr. P. C., it is specifically provided that no oath shall be administered to the accused person. Similarly, Section 5 of the Indian Oaths Act, 1873, which provides for the compulsory administration of oaths or affirmation to witnesses, expressly states in its last paragraph
'Nothing herein contained shall render it lawful to administer in a criminal proceeding anoath or affirmation to the accused person.'
The taking of oath or making of an affirmationbeing an indispensable prerequisite for any per-son giving evidence in a court of law as a wit-ness, in India excepting under special laws like Section 7 of the Prevention of Corruption Act or in proceedings under Section 107, Cr P. C., or maintenance proceedings under the Code of Criminal Proce-dure, the accused is not a competent witness.
59. That is why Section 342 has been enacted in the Criminal Procedure Code and the history of this section has been set out by Sri. S. Ranga-nadhaiyar in his Code of Criminal Procedure (7th Edn.) (1954) page 1279 as follows:
'It is of some interest to trace the development of the provisions relating to the examination of the accused during the trial through the successive Codes. In the 1861 Code such examination was merely permissive and applied only to commitment proceedings and to warrant cases but no mention whatever was made by any examination of the accused in Sessions Cases. In the 1872 Code for the first time we have a provision for the examination of the. accused in Sessions Trials. There was no special provision for such examination in summons cases but this section appeared as a general provision for the examination of the accused in all cases. It approximated to the present form of the section but still remained merely permissive. In the 1882 Code the provision as to such examination assumed its present form and separate provisions delating to such examination disappeared from the other Chapters. This shows that the mandatory provisions as to the examination of the accused is of relatively recent development; ('Emperor v. Nga Lagyi', AIR 1931 Bang 244 (Z41) ).
Sir James Fitzjames Stephen characterisedthe provisions of this section as embarrassing,illogical and hypocritical arid as laid down arule of procedure of Courts in India which isat complete variance with English law. It isa principle of English law that the whole burden of proving an offence is on the prosecution;the accused need merely stand by and donothing and on no account is he to be compelled to incriminate himself. The IndianLegislature has, however. In the Code emphasised the fact that the object of a trial in acriminal case is to get at the truth of thefacts and that the accused must assist theCourt in arriving at the truth and the answersgiven by him to the Court questions put tohim though not 'evidence' in the strict sense, may be taken into consideration in arriving atits conclusion -- 'Onkar Singh v. Emperor (Z42).
In this country an accused cannot be cross-examined. When the prosecution evidence has been given, a Magistrate or Judge therefore must question the accused for enabling him to explain circumstances appearing in evidence against him. 'Jaggu Naidu v. Emperor', 1932 Mad WN 692 (Z43). In England the disqualification in criminal cases to testify for himself seems not to have been questioned in early times. The formal grant of competency was so long withheld due rather to a hesitation founded on the supposed interest of the accused himself and his failure to avail him-self of the right to testify would, it was believed, damage bis cause seriously.
Sir James Stephen said in his History of Criminal Law, Vol. I, p. 442: 'I am convinced by much experience that Questioning the accused or the power of giving evidence is a positive assistance and a highly important one, to innocent men and I do not see why in the case of the guilty there need be any hardship about it.' So it became customary before the passingof the Criminal Evidence Act, 1898, to allow the accused to make a statement to the jury, i.e., to tell his story not on oath and not as a witness but in the guise of an argument on the testimony on the whole case and he may be cross-examined: In England by the Criminal Evidence Act, 1898 (61 and 62 Vict. Ch. 36, Section 6(1) ), the disability was removed and every accused became a competent person to give evidence. This section influenced by the principles of Common Law before the modification by statute of 1898 makes it clear that no oath can be administered to an accused and so he is not a competent witness on his behalf; On account of the peculiar circumstances of this country, the Legislature had decided to depart from the Common Law rule by giving the Court holding the enquiry or trial, power to putsuch questions to the accused at the close of the prosecution evidence as it considers necessary to enable him to explain the circumstances appearing in evidence against him and that too at any stage of the enquiry or trial without previously warning him.' 'Motan Khan v. Emperor', AIR 1927 Sind 175 (Z44).
When the accused's attention was never drawn to the material points telling against him it cannot be taken as an omission on his part to explain what he was never asked to explain --'Dwarakanath v. Emperor ; -- 'Sohanlal v. Emperor', (Z46). Under the Code of 1872, the statement of an accused person, could be used only as against him. Under the corresponding Code of 1882 as well as under the present Code it can be used for or against him in the same case, or, in a subsequent trial for a different offence. The object of this section is clearly limited to safeguard the interests of the accused. The principles underlying it are based on the maxim 'audi alteram partem' (hear the other side; hear both sides). Otherwise it would be clearly unfair to infer accused's guilt from a fact which he had no opportunity to explain by the Court drawing his pointed attention to that fact. That is why it has been enjoined that every circumstance telling against the accused and which the Court would make use of to rest a conviction should be clearly put to him and that 'portmanteau' questions should be strictly avoided.
The examination contemplated is not a cross-examination or an examination of an Inquisitorial nature for the purpose of entrapping the accused and of extracting from him damaging admissions upon which to build the case. It follows that the section has no application where no evidence at all has been recorded on behalf of the proaccused or, where no evidence implicating thephasis has been placed upon the fact by thisCourt against the practice that accused personsshould not be allowed to file written statementsdrafted by their legal advisers except in com-plicated cases like criminal breach of trust. Thesestatements can never have the same value asanswers coming directly from the accused'smouth.
Thus, the accused is entitled to refuse to answer the questions put to him under this section and if he does so, the Court should not go on questioning him. These answers can only be taken into consideration at the enquiry but cannot be made the substituting the prosecution evidence. The prosecution must make out its case by evidence. See the following Madras decisions: -- 'Emperor v. Kuppammal : AIR1941Mad1 ; -- 'In re Mattali Gounder'. : AIR1952Mad812 (Z48); -- 'In re, Sarabhayya AIR 1943 Mad 408 (Z49); -- 'In re, Seshapani Chetty AIR 1937 Mad 209 (Z50); -- 'Subba Rao v. Venkata-chalapathy', AIR 1938 Mad 904 (Z51); -- 'In re, K. Narasihmam : AIR1936Mad629 ; --'In re, Annamalai Mudali AIR 1940 Mad 372 (Z53); -- 'Nataraja v. Devasigamani : AIR1931Mad241 and the Supreme Court decisions of -- 'Bijoy Chand v. The State of West Bengal', : 1952CriLJ644 (Z55). If the answers constitute admissions they can be so used against the accused. Then these admissions must be taken as a whole though where the statement consists of distinct and separate matters, an admission in one matter can be relied upon without reference to the statements relating to other matters. 'Hanumant v. State of Madhya Pradesh', : 1953CriLJ129 (Z56); -- 'Karnail Singh v. State of Punjab AIR 1954 SC 204 (Z57).
60. Therefore, the answers given by the accused under Section 342 (2), Cr. P. C., would not offend Article 20(3) of the Constitution for two reasons. First of all, as has been held in -- 'Ranjit Singh v. State', (Z58), it is entirely a matter of option with the accused to answer or not when he is questioned under Section 342, Cr. P. C., and as an oath cannot be administered to him as to a witness and his testimony cannot beput in evidence in the trial or enquiry, Section 342is not repugnant to Clause (3) of Article 20. Secondly,it is quite true that Section 342(2), Cr. P. C., providesthat the Court and the jury, if any, may drawsuch Inference from the refusal of the accused toanswer question or his giving false answers, asthe Court or the jury thinks just. This does notmean that this is a case of virtually compellingthe accused to be a witness against himself andso, as being contrary to the spirit, if not of theletter, of Clause (3) of Article 20, as has been posed,(In AIR Commentaries on the Constitution ofIndia, Vol. I p. 500 Note 5(d). Aggarwalla Fundamental Rights and Constitutional Remedies, Vol.I, p. 482: Basu The Constitution of India p. 151.But see also Raghavachari the Constitution ofIndia p. 97; Arunachalam A Treatise on Constitutional Law Pp. 279-280) because the object of Section 342 is not to build up a case against the ac-cused from his answers or non-answers but totest by the explanation furnished, by the accused in another additional manner the truth of the prosecution version. When the answers given satisfactorily explained the prosecution evidence, there can be no conviction; if they do net rebut the prosecution evidence the Court will convict; but in any case the Court cannot supplement the prosecution evidence by selecting passages which might corroborate the evidence rejecting the passages exonerating the accused; the entire statement should be considered though it need not be accepted and acted upon because it ia the duty of the Court to separate the grain from the chaff and accept only those portions which are found to be true and reject those portions which are found to be false by evidence 'aliunde'. The point taken therefore under Article 20(3) of the Constitution read with Section 342, Cr. P. C., should fail.
61. In the result, the convictions and sentences of the lower Court are irreproachable and they are confirmed. The confiscation of the Sandalwood billets in the circumstances of the case was appropriate and the circumstances of the case show that Sandalwood stolen, from the forest of the Tirumalai Tirupathi Devasthanam forests and smuggled in Madras were being purchased probably at very favourable rates and Vended briskly by the accused probably at very profitable rates. Therefore, the case does not fall within the scope of the lenient treatment accorded in -- 'Suleman Issa v. State of Bombay', : 1954CriLJ881 (Z59). It is not the fine but the confiscation which is the real deterrent.