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PETITIONER: MAJOR E. G. BARSAY

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 24/04/1961

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1961 AIR 1762            1962 SCR  (2) 195  CITATOR INFO :  R          1963 SC1850  (59)  R          1966 SC1273  (20)  R          1968 SC1323  (7)  RF         1971 SC 500  (17)  RF         1971 SC1120  (20)  R          1977 SC2433  (9)  D          1979 SC1255  (8)  RF         1982 SC1413  (39)  R          1986 SC1655  (7)  RF         1992 SC 604  (125)

ACT: Criminal  Trial-Criminal  Misconduct-Army Officer  tried  by Special Judge-jurisdiction-Sanction for Prosecution given by Deputy      Secretary-Validity-Investigation by Inspector of Police,   Special  Police   Establishment,   Delhi-Legality- Conspiracy-Public  Servants charged with others-Legality  of charge-Approver-Corroboration-Prevention of Corruption Act , 1947 (11 of 1947). ss. 5A, 5(2), 6(r)(a)-Army Act, 1950  (46 of 1950), ss. 52, 70, 125, 127-Criminal Law (Amendment) Act, 1952  (46  of 1952), ss. 6, 7, 8, 9-Constitution  of  India, Art. 77.

HEADNOTE: The  appellant  and five other persons, three  of  Them  not being public servants, were charged with criminal conspiracy to dishonestly or fraudulently misappropriate or convert  to their  own  use  military stores and  with  dishonestly  and fraudulently   misappropriating  the  same.   Sanction   for prosecution  of the accused was given by a Deputy  Secretary on behalf of the Central Government.  The accused were tried by  a Special judge.  The main evidence led was that of  one L,  a  security  officer., who had been asked  to  join  the conspiracy  and  who had joined it with a view to  have  the offenders apprehended.  The Special judge convicted all  the accused  persons.   On appeal the High Court  confirmed  the conviction  of the appellant and one other accused now  dead and  acquitted the other four accused persons  holding  that the  evidence of L was corroborated in material  particulars in respect of the appellant and one other accused only.  The appellant contended:- (i) that the appellant who was subject to  the Army Act could only be tried by a Court Martial  and

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the Special judge had no jurisdiction to try him, (ii)  that the  sanction to prosecute was void as it was not  expressed to be 196 made   in  the  name  of  the  President,  (iii)  that   the investigation by the Inspector of Police, was illegal,  (iv) that  there could be no legal charge of  conspiracy  between accused  who were public servants and accused who were  not, and  (v)  that  L  was a  wholly  unreliable  witness  whose testimony  ought  to  have  been  rejected  totally  and  no question of its corroboration arose. Held,  that  the Special judge had jurisdiction to  try  the appellant  for the offences charged.  The Army Act does  not bar  the jurisdiction of criminal courts in respect of  acts or omissions which are punishable under the Army Act as well as under any other law in force.  The offences charged  were triable  both by the Special judge and by a  Court  Martial. In  such cases s. 125 of the Army Act provides that  if  the designated  officer decides that the proceedings  should  be before  a  Court  Martial he may direct the  accused  to  be detained  in military custody.  But in the present case  the designated officer bad not exercised his discretion and  the Army Act was not in the way of the Special judge  exercising his  jurisdiction.   Rule  3  made under  s.  549,  Code  of Criminal  Procedure for persons subject to military law  was applicable  only to magistrates and not to a  Special  judge who is not a magistrate within the meaning of r. 3. Besides, s. 7 of the Criminal Law (Amendment) Act, 952, provides that notwithstanding  anything contained in the Code of  Criminal Procedure or in "any other law" the offences specified in s. 6(1)  shall  be triable by Special judges only.   The  words "any  other law" included the Army Act also.   The  offences for   which  the  appellant  was  convicted  were   offences specified  in  s.  6(1) and were exclusively  triable  by  a Special judge. Held, further, that the sanction for the prosecution of  the appellant was a good and valid sanction.  Article 77 of  the Constitution  which provides that all orders of the  Central Government  shall  be  expressed to be in the  name  of  the President  is  only directory and not mandatory.   Where  an order   was  not  issued  in  strict  compliance  with   the provisions of Art. 77 it could be established by  extraneous evidence  that  the  order  was  made  by  the   appropriate authority.   In  the present case there  was  uncontroverted evidence  which established that the order of  sanction  was made  by  the  Deputy Secretary on  behalf  of  the  Central Government  in exercise of the power conferred on him  under the rules delegating such power to him. The  State of Bombay v. Purushottam jog Naik, [1952]  S.C.R. 674,  Dattareya Moreshwar Pangarkar v. The State of  Bombay, [1952] S.C.R. 612, J. K.  Gas Plant Manufacturing Co.,  Ltd. v.  The King Emperor, [1947] F.C.R. 141, P. Joseph  John  v. The  State  of Travancore-Cochin, [1955] 1 S.C.R.  1011  and Ghaio Mall & Sons v.     The  State of Delhi, [1959]  S.C.R. 1424, applied. Held,  further, that though the conditions of  investigation by the Inspector of Police as laid down in S. 5A, Prevention of Corruption Act were not complied with the trial. was  not vitiated 197 by the illegality as it did not result in any miscarriage of justice.   The  powers and jurisdiction of  members  of  the Delhi  Special  Police Establishment  for  investigation  of offences in the State of Bombay had been duly extended by  a notification  of the Government of Bombay dated  August  13,

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1949, giving a general consent in respect of all the members of the establishment.  It was not necessary that the consent be given to every individual member of the Establishment. H.N.  Rishbud & Inder Singh v. State of Delhi,  [1955]  1 S.C. R. 1150, followed, Held, further, that there was no defect in the charges.   It was  not illegal to charge public servants and  persons  who were not public servants with the criminal conspiracy to  do certain  acts for which all of them could not  be  convicted separately.  Though all the accused were not liable for  the individual offences, they were all guilty of the offence  of conspiracy to do illegal acts. Held, further, that the evidence of L was reliable and  that it  was corroborated in material particulars so far  as  the appellant was concerned.  Though L was not an accomplice, he was  an interested witness and required corroboration.   The evidence  of  an approver and the  corroborating  pieces  of evidence could not be treated in two different compartments; but had to be considered together.  Though some parts of the evidence  of  L were not accepted, his version  was  broadly accepted in regard to the conspiracy and the manner in which articles were smuggled out. Sarwan  Singh  v. The State of Punjab,  [1957]  S.C.R.  953, explained.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  2  of 1958. Appeal  from the judgment and order dated July 27, 1957,  of the Bombay High Court in Criminal Appeal No. 254 of 1957.                             WITH Criminal Appeal No. 81 of 1960. Appeal  by special leave, from the judgment and order  dated July 27, 1957, of the Bombay High Court, in Criminal Appeals Nos. 255 and 257 of 1957. M.H. Chhatrapati, Ravindra Narain, O. C. Mathur and J. B. Dadachanji,  for the appellant (in Criminal Appeal No. 2  of 1958). B.K. Khanna and D. Gupta, for the respondent in  Criminal Appeal  2 of 1958) and appellant (in Criminal Appeal No.  81 of 1960). 198 Ram  Lal  Anand and S. N. Anand, for respondent  No.  1  (in Criminal Appeal No. 81 of 1960). B.S. Gheba, for respondent No. 2 (in Criminal Appeal  No. 81 of 1960). 1961.  April 24.  The Judgment of the Court was delivered by SUBBA  RAO, J.-These two appeals-one filed by accused No.  1 by  certificate  and  the  other  filed  by  the  State   of Maharashtra  by  special leave-against the judgment  of  the High Court of Bombay confirming the conviction and  sentence of  accused  No.  1 and setting aside  the  convictions  and sentences of accused Nos. 2 and 3. The  prosecution  case may be briefly stated.  There  was  a depot called the Dehu Vehicle Depot in which military stores were  kept.  In the year 1944 Col.  Rao, the Chief  Ordnance Officer,  was  in  charge of the Depot;  Col.   Sindhi,  the Station  Commandant,  and  Brig.   Wilson,  the   Brigadier, Ordnance,  Southern  Command, were  his  superior  officers. Accused  No. 1, Major Barsay, was second in command  in  the Depot  and was in charge of stores section; he was  subordi- nate  to Col.  Rao.  Major Nag, another subordinate to  Col. Rao, was in charge of the administration of the Depot.   One

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Capt.   Pratap Singh was the Security Officer in the  Depot; but, during the period in question, one Lawrence was  acting as  the  Security Officer in place of Capt.   Pratap  Singh. Kochhar,  accused No. 2, who was on leave from  October  25, 1954,  was recalled to duty by accused No. 1 and was put  in charge  of kit stores in the Depot.  Avatar  singh,  accused No.  3,  who  was  working  in  the  Unfit  Sub  Park,   was transferred  to the Kit Stores by accused No. 1  during  the absence on leave of Col.  Rao.  Accused No. 4, Saighal,  was an Ex-Col. and was at one time the Station Commandant of the Depot; after retirement he had been staying in a bungalow at a  short  distance from mile No. 92/7  on  the  Poona-Bombay Road.  Accused No. 5, Ramchand Gangwani, was a refugee  from Sind  and he was running a hotel at Lonnavala.  Accused  No. 6, Devichand, and one 199 Khemchand,  who  is absconding, are sons of accused  No.  5. Accused  Nos.  4  and  5 were friends  and  they  were  also partners along with one Bhagwan Parshuram of Bombay in  "The Bombay  Lonavala  Disposal  Syndicate".   There  were  large consignments of Kits in Shed No. 48 of Kit Stores which were unitemized  and unaccounted for in the books of  the  Depot. The accused entered into a conspiracy to smuggle out some of the said stores and to make an illegal gain by selling  them at Bombay through accused No. 4. The brain behind the conspiracy was accused No. 1. The  plan chalked out to implement the object of the conspiracy may be briefly stated.  Col.  Rao was to proceed on leave  sometime in  December  1954  and  Maj.  Barsay,  being  the  next  in command,  was  naturally to succeed him  as  Chief  Ordnance Officer  of  the Depot during the absence on leave  of  Col. Rao.  The smuggling of the goods out of the Depot was there- fore  arranged  to take place during the  period  when  Maj. Barsay  was  acting  as the Chief Ordnance  Officer  of  the Depot.   Col.   Rao went on leave from  December  11,  1954. Kochhar,  the second accused, who was in charge of the  Fit- Park, proceeded on two months’ leave of absence with  effect from October 25, 1954, but he was recalled by accused No.  1 and  posted as officer in charge of Kit Stores  on  November 25,  1954.  Accused No. 3, Avatarsingh, was working  in  the Unfit Sub Park, and he too was shifted from there to the Kit Stores  on or about November 22, 1954.  These two,  postings were made by accused No. 1 without the consent or  knowledge of  Col.   Rao when he had gone to Delhi on  some  temporary duty  for  ten days from November 20, 1954 to  November  30, 1954.   On the night of December 1, 1954, there was a  theft of various articles in the Unfit Park of the Depot.  Accused No.  1  called  in Lawrence, the  acting  Security  Officer, ostensibly to discuss with him certain matters regarding the theft.  During the course of the conversation accused No.  1 suggested  to Lawrence that valuable stores in Shed  No.  48 might  be smuggled out and the large amounts expected to  be realized  from  their  sale  might  be  shared  between  the conspirators, including 200 Lawrence.  Presumably to put him in a suitable frame of mind to  accept the suggestion to become a conspirator,  he  also hinted  to  Lawrence  that  Col.   Rao  suspected  that   he (Lawrence) had a hand in the theft.  The scheme outlined  by accused  No.  1 was confirmed by accused No. 2  a  few  days later.   According to the plan chalked out by Maj.   Barsay, he  was  to appoint a board of officers for  itemization  of "Specialist  Boxed Kits" in Shed No. 17 and once  the  board started functioning there would be shuttle of trucks  moving from  Shed No. 48 to Shed No. 17 and vice versa  and  during

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the  movements  of those trucks two or three  trucks  loaded with  valuable stores were to be moved out through the  main gate of the Depot on the pretext of being back-loaded to the Return  Stores Sub-Depot.  He was also to take Col.  Rao  to Shed No. 48 and explain to him that the boxes contained very few  items so that he too, on his return from  leave,  would not be surprised at the final result of the itemization.  It was  also  agreed that the scheme should be  pushed  through tentatively  on December 16, 17 and 18, 1954.  But, for  one reason or other, it could not be pushed through during those days, as Capt.  Kapoor was frequently visiting the scene  of itemization. On December 18, 1954, a meeting took place at Maj.  Barsay’s bungalow and accused Nos.  1 to 4 and Lawrence attended that meeting.   At  that meeting the details of working  out  the plan to be carried out on December 20, 1954, were finalized. Kochhar  reported  to the conspirators that he  had  briefed Jamadar  Kundanlal,  and  Lawrence told them  that,  as  per Kochhar’s  suggestion,  he  had  already  detailed   Jamadar Kundanlal on day duty at the main gate during the next week. Maj.   Barsay  agreed  to get a  driver  of  his  confidence detailed  on  one of the trucks to be allotted  to  the  Kit Stores  and  he  offered to give orders to  Kochhar  on  the morning  of  December 20, 1954, in the presence of  all,  to transfer the itemized kits to Shed No. 26 ostensibly for the purpose of conditioning and preservation.  That would enable accused  No. 3, Avatar Singh, to load the stores  from  Shed No.  17.   The first trip was to be of  ordinary  stores  in which the                             201 conspirators were not interested and the second trip was  to be  of valuable stores which were to be smuggled out of  the gate.  Maj.  Barsay also undertook to call Maj.  Nag to  his office on December 20, 1954 and issue orders in the presence of  Maj.   Nag  to Lawrence to go  to  Dehu  Ordnance  Depot (D.O.D.)  and get the fire hoses which were sent  there  for repairs.   Kochhar  agreed  to prepare a  bogus  voucher  on Monday  (December 20, 1954) morning, and Lawrence  undertook to  provide  a  bogus gate-pass.  Accused  No.  4,  Saighal, agreed  to keep a lorry and some laborers present  near  his bungalow for transshipping the stores. On  the evening of December 19, 1954, Lawrence went  to  the house  of Saighal and the latter showed him the  spot  where the  stores  were  to be  transshipped.   Thereafter,  after taking his dinner, Lawrence went to the Depot at 9 p.m.  The Orderly  Officer  at the Depot,  one  Shrinivasan,  informed Lawrence  that  Jamadar Kundanlal, who was to have  been  on duty at the main gate on December 20, 1954, was sick and had taken  3 days’ leave of absence on medical grounds and  that Maj.   Barsay  had  sent a chit to him asking  him  to  send Lawrence to the bungalow of Maj.  Barsay.  Lawrence went  to the  bungalow of Maj.  Barsay, but could not meet  him;  and then Lawrence went to the residence of Jamadar Kundanlal and tried to persuade him to attend to his duty at the main gate on December 20, 1954. On December 20, 1954, at about 9.15 a.m. Maj.  Barsay called Havaldar  Pillay to his office and asked him to allot a  new vehicle  to  the Kit Stores and to detail driver  Ramban  on that vehicle.  Havaldar Pillay did accordingly.  At about 10 a.m.,  Maj.   Barsay called Maj.  Nag and  Lawrence  to  his office  and, in the presence of Maj.  Nag, he issued  orders to Lawrence to go to Dehu Ordnance Depot (D.O.D.) personally and  get  the fire hoses.  After Maj.  Nag left  the  place, Lawrence  told  Maj.   Barsay  that  Jamadar  Kundanlal  had reported  himself to be sick and had taken leave of  absence

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and  that  one  Godse was at the main  gate.   Maj.   Barsay suggested to Lawrence that 26 202 Jamadar  Jogendrasingh may be put at the main gate in  place of Godse, and he informed him that he had fixed upon  Ramban as the driver of the vehicle in which the stores were to  be smuggled  out.  At about 11 a.m. Lawrence met  Maj.   Barsay and  Kochhar near, Shed No. 48 and was told by Maj.   Barsay that  the  scheme  was to  proceed  according  to  schedule. Kochhar  and  Lawrence  then  went  to  Shed  No.  17  where Avatarsingh,  accused  No.  3, was  present.   Kochhar  told Avatarsingh  that he had not prepared any voucher as it  was not  necessary.  Lawrence had brought an old gate-pass  with him  and he handed over the same to Avatarsingh.  Truck  No. D. D. 5963 was, in the first instance, loaded with  ordinary stores  and  was  sent to Shed No. 26.   In  the  meanwhile, Lawrence  went to the Depot and asked Godse to take over  at the Unfit Sub Park gate and he ordered Jamadar Jogendrasingh to  take  over  from Godse at the  main  gate.   As  Jamadar Jogendrasingh refused to accept the gate-pass to be produced by  the  driver and pass out the vehicle without  making  an entry  regarding  the  same  in the  "Vehicles  In  and  Out Register", Lawrence gave him a written order to that  effect with  instructions  not to show or hand  over  that  written order  to  anybody except himself on his return or  to  Maj. Nag.  At about 1 p.m. Maj.  Barsay told Lawrence that he had become apprehensive of the scheme succeeding, as he had seen the  Station Commandant’s car near the Barrack  Office  and, therefore, he told him not to take out the vehicle till that car  had gone out.  Lawrence agreed and went to Shed No.  17 where Avatarsingh was present, and Avatarsingh got the truck loaded and handed over the bogus gate-pass and the duty-slip of the vehicle to Ramban, and he also asked Lawrence to  get into the truck there itself instead of near the main gate as per  the  plan.   After  Lawrence got  into  the  truck,  it proceeded  towards the main gate at about 1.40 p.m.  At  the main gate, Ramban gave the duty-slip of the vehicle and also the bogus gate-pass to Jamadar Jogendrasingh and the  latter told  Lawrence that Maj.  Barsay had left a message for  him "not to do it on that day".  Lawrence,                             203 ignoring  the said directions, took the vehicle out  of  the gate.   At a spot near Talegaon there was a  civilian  lorry bearing  No. BYL 3289 kept ready by accused Nos. 4, 5 and  6 for transhipping the stores, and to that place the truck was driven.   The  two  lorries were parked back  to  back,  and accused No. 6. and the absconding accused Khemchand and  two others  started  transhipping the stores from  the  military lorry  to  the civilian lorry.  At that  stage,  the  police officers  appeared  at  the  scene  and  prevented   further fulfilment of the plan of the accused. It  is  a  further case of  the  prosecution  that  Lawrence ostensibly  joined  the conspiracy with a view to  bring  to book  the culprits and was informing the  superior  officers and  the police orally and in writing from time to  time  as and when the important events were taking place. As  some argument was made on the basis of the  charges,  it would be convenient at this stage to read the charges framed by the Special Judge, Poona.  The charges are:               (1)   That  you  accused  No. 1  Major  E.  G.               Barsay,  when  officiating as  Chief  Ordnance               Officer, D. U. V. and you accused No. 2, H. S.               Kochhar,   when  posted  as   Civilian   Group               Officer,  D.  U. V., and you  accused  No.  3,

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             Avatarsingh   Seva  Singh,  then  working   as               Civilian  Stores  Keeper, D. U.  V.,  and  you               accused  No.  4, W. S. Saighal,  released  Lt.               Col.,   and  you,  accused  No.  5,   Ramchand               Pahlajrai  Gangawani, and you accused  No.  6,               Deviprasad   Ramchand   Gangawani   and    the               absconding  accused  Khemchand  between  about               October 1954 and December 1954 were parties to               a  criminal  conspiracy at Dehu Road  area  by               agreeing  to do certain illegal acts  to  wit:               Firstly,    dishonestly    or     fraudulently               misappropriate  or otherwise convert  to  your               own  use  the  Military Stores  lying  in  the               Vehicle   Depot,  Dehu  Road  and  which   was               entrusted  or  was in-charge of  Major  E.  G.               Barsay,  H. S. Kochhar, and  Avatarsingh  Seva               Singh and which was also under their  control,               as  public  servants; Secondly, to  obtain  by               corrupt or illegal means for yourselves or for               any other persons 204 such  stores  which  amounts to abusing  their  position  as public  servants  i.e.,  the  co-conspirators;  Thirdly,  to commit  illegal  acts of committing theft  or  receiving  of stolen property and the above said illegal acts were done in pursuance  of the said agreement and that you  have  thereby committed  an offence punishable under Section 120-B of  the Indian Penal Code and within my cognizance.               (2)   That  you accused Nos. 1, 2, 3,4,  5,  6               and  another (Khemchand  Ramchand  Gangawani),               between  about October 1954 and December  1954               in  pursuance  of  the  abovesaid   conspiracy               jointly  and  in  furtherance  of  the  common               intention  of all of you, you accused  No.  1,               Major  Barsay,  Officiating Chief  Ord.  nance               Officer, and you accused No. 2, H. S. Kochbar,               Civilian  Group  Officer, D. U.  V.,  and  you               accused   No.  3,  Avatarsingh   Seva   Singh,               Civilian Store Keeper, and you accused No.  4,               W.  S.  Saighal, released Lt.  Col.,  and  you               accused No. 5, Ramchand Pahalajrai  Gangawani,               and  you  accused No. 6,  Deviprasad  Ramchand               Gangawani,  did  on  20th  of  December  1954,               dishonestly  or fraudulently his.  appropriate               with  a common intention or convert  for  your               own  use  Government property in the  form  of               Military   Stores  described  in   detail   in               Schedule  ’A’ appended herewith, entrusted  to               or  under  the  control  of  the  first  three               accused,  namely,  Major E. G. Barsay,  H.  S.               Kochhar  and Avatarsingh Seva Singh, who  were               public  servants  and  thereby  committed   an               offence  under  Section  5(1)(c),   punishable               under  section  5(2),  of  the  Prevention  of               Corruption  Act, read with Section 34  of  the               Indian Penal Code and within my cognizance.               (3)   That  you accused Nos. 1, 2,3, 4,  5,  6               and the absconding accused Khemchand  Ramchand               Gangawani,  in  pursuance  of  the   abovesaid               conspiracy, jointly and in furtherance of  the               common intention of all of you, did by corrupt               or illegal means by abusing their position  as               public  servants, obtained for  yourselves  or               for any other persons, the valuable things  in               the  form of Military Stores detailed  out  in

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             Schedule ’A’ appended herewith, and this act                                    205               constitutes  an offence under Section  5(1)(d)               of   the   Prevention   of   Corruption   Act,               punishable under Section 5(2) of the said  Act               read with Section 34 of the Indian Penal  Code               and within my cognizance.               (4)   That  you accused Nos. 1, 2, 3, 4,5,  6,               along  with the absconding accused,  Khemchand               Ramchand  Gangawani, did on 20th  of  December               1954, in pursuance of the abovesaid conspiracy               jointly  and  in  furtherance  of  the  common               intention  of  all  of  you,  dishonestly   or               fraudulently   remove  the   Military   stores               described  in detail in Schedule ’A’  appended               herewith from the Dehu Road Depot and this act               constitutes an offence punishable either under               Section  381 or 411 of the Indian Penal  Code,               read with Section 34 of the Indian Penal  Code               and within my cognizance." The  main  defence of the accused was that, in view  of  the thefts  going on in the Depot, the reputation  of  Lawrence, the  Security Officer, was at the lowest ebb, that in  order to  resurrect his reputation and to ingratiate himself  into the good books of his superiors, he concocted the scheme  of huge fraud and implicated therein the accused, including the Acting Chief Ordnance Officer of the Depot.  Shortly stated, the defence was that all the accused were innocent and  that it  was Lawrence that "abducted" the truck with the  stores, made false statements to the superior officers from time  to time giving concocted versions to fit in with the theory  of conspiracy. The Special Judge, on a consideration of the evidence,  held that all the charges were made out against the accused.   He rejected  the technical objections raised in regard  to  the framing  of the charges, the validity of  the  investigation made by the investigating officer and the sanction given  by the  Central Government for the prosecution of the  accused, and  came  to the conclusion that prima facie there  was  no good  ground  to discard the evidence of  Lawrence,  but  he placed  the  said  evidence in the  category  of  interested evidence  and  required  independent  corroboration   before acceptance.   In  the words of the  learned  Special  Judge, "Shri Lawrence’s evidence can, 206 therefore,  be  accepted  and relied upon,  only  if  it  is corroborated by other independent evidence and circumstances in  the  case." He found ample  evidence  and  circumstances corroborating  the evidence of Lawrence.  After  considering the entire evidence, he came to the following conclusion:               "The  above  discussion  of  the  evidence  on               record and the circumstances in the case makes               it  abundantly clear that the prosecution  has               been  able to prove beyond a reasonable  doubt               that every one of these six accused did commit               overt  acts  in furtherance  of  the  criminal               conspiracy alleged against them." He  held  that  accused  Nos.  1 to 6  were  guilty  of  the principal offence charged against them and convicted all  of them under s. 120-B of the Indian Penal Code and s. 5(2)  of the  Prevention of Corruption Act, 1947, read with B. 34  of the  Indian  Penal  Code.   He  gave  varying  sentences  of imprisonment and fine to the accused.  The accused preferred five appeals to the High Court against their convictions and sentences.

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A  division bench of the Bombay High Court which  heard  the appeals set aside the conviction of accused Nos. 2, 3, 5 and 6,  but confirmed those of accused’ Nos.  1 and 4. The  High Court  also rejected all the technical objections raised  at the  instance  of the appellant-accused in  regard  to  some parts of 2nd, 3rd and 4th charges.  In regard to the 2nd and 3rd head sub-charges, tile High Court accepted the plea that accused  Nos.  4, 5 and 6 could not be charged  with  having committed an offence under s. 5(1)(c) and s. 5(1)(d) of  the Prevention  of  Corruption  Act, as  they  were  not  public servants;  but they held that it would be proper to frame  a charge  against them under s. 109 of the Indian  Penal  Code for having abetted the commission of the offence of criminal misconduct  under  s. 5(1)(c) and (d) of the  Prevention  of Corruption  Act, committed by accused Nos.  1 to 3.  As  the High  Court  held  that  they were  not  prejudiced  by  the irregularity  of  the charge, it altered the charge  to  one under s. 109 of the Indian Penal Code, read with s.  5(1)(c) and (d) of the Prevention of Corruption Act.  As regards the                             207 last head of the charge, it held that all the accused  could not be charged with having committed an offence under s. 381 of the Indian Penal Code and that the charge under s. 411 of the  Indian Penal Code would also appear to be  improper  so far as accused Nos.  1 to 3 were concerned; but it held that so far as accused Nos. 4, 5 and 6 were concerned, the charge under  s. 411, read with s. 34, Indian Penal Code, would  be quite proper. Before  the High Court, learned counsel appearing on  behalf of the accused and the special counsel, Mr. Amin,  appearing on  behalf  of  the State, asked the  Court  to  proceed  to examine the evidence of Lawrence on the basis that he was  a decoy  and a trap witness.  The High Court agreed  with  the learned  Special Judge that the evidence of Lawrence  would, have  to be treated on par with that of a trap  witness  and that it would be inadvisable to rely upon the said  evidence without independent corroboration.  It also pointed out that the corroboration required was not a corroboration of  every particular  in  respect  of  which  the  accomplice  or  the approver  gave his evidence, but the corroboration  must  be such  as to make the court believe that the evidence of  the accomplice  was a truthful one and that it would be safe  to act upon that evidence.  Finally the High Court premised its discussion of the evidence in the following words:               "In  our  opinion, all these  decisions  would               clearly establish that it would not be safe to               rely  on  the  evidence  of  Lawrence  who  is               admittedly  a decoy or trap  witness,  without               his   testimony   being   corroborated    from               independent sources." Then  the  learned Judges of the High Court  considered  the evidence  of Lawrence minutely, discarded some parts of  the evidence  which were discrepant or inconsistent  with  other proved  facts  and accepted the broad  story  of  conspiracy given  by him as true to the extent it was  corroborated  by other  unimpeachable pieces of evidence  and  circumstances. After elaborately considering the evidence of Lawrence,  the learned Judges of the High Court came to the following  con- clusion: 208               "We,  therefore, accept  Lawrence’s  evidence,               find  that his story is probable and true  and               we  also find that the evidence on the  record               justified the finding of the trial Court  that               there  was  a  conspiracy as  alleged  by  the

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             prosecution  to smuggle goods out of the  Dehu               Vehicles Depot." Then the learned Judges considered the question as to  which of  the  accused took part in the  conspiracy.   As  regards accused  No. 1, they came to the conclusion that  there  was cogent  evidence to implicate him in the conspiracy, and  in that  view,  they confirmed the finding of the  trial  court that  he was a party to the conspiracy to  smuggle  military goods out of the Depot.  As regards accused No. 2, they held that  the evidence was not sufficient to establish  that  he was a member of the alleged conspiracy and that, as he could not  be held to be a member of the conspiracy, he could  not also be held to be guilty of committing criminal  misconduct under  s.  5(1)(c) and (d) of the Prevention  of  Corruption Act,  1947.   As  regards accused No. 3, they  were  of  the opinion that the case against him was not established beyond reasonable doubt and that he could not be held to be  guilty of  criminal conspiracy as well as criminal misconduct.   As regards  accused  No. 4, they accepted the  finding  of  the learned  Special Judge, as independent  acceptable  evidence corroborated  the  evidence of Lawrence in respect  of  this accused.   So  far as accused Nos. 5 and 6  were  concerned, they  found the evidence to be very weak and  therefore  set aside  the convictions and sentences passed against them. In the result, they confirmed the convictions and  sentences of  accused  Nos.  1 and 4, and set aside those  of  accused Nos. 2, 3, 5 and 6. It  appears  that accused No. 4 died after  the  appeal  was disposed  of  by the High Court.  Accused  No.  1  preferred Criminal  Appeal  No. 2 of 1958 against his  conviction  and sentence  passed by the High Court and the  State  preferred Criminal  Appeal No. 81 of 1960 challenging the  correctness of the order of acquittal made in respect of accused Nos.  2 and 3. We shall first take the appeal filed by accused No. 1.                             209 Learned  counsel for the appellant raised before us all  the technical  points which he unsuccessfully raised before  the Special  Judge  as well as before the High  Court.   At  the outset  we  shall  deal with  the  said  contentions  before considering  the  arguments advanced on the  merits  of  the case. The first contention of learned counsel for the appellant is that  the Special Judge, Poona, had no jurisdiction to  take cognizance  of  the  offences with which  the  accused  were charged and that they should have been tried only by a court martial under the Army Act. The  argument  of learned counsel for the appellant  may  be briefly stated thus: The Army Act, 1950 (46 of 1950) created new  offences.  Section 52 of the said Act created  offences with  which  accused in the present case were  charged,  and provided  a new machinery, namely, a court martial,  to  try persons   committing  the  said  offences.    Therefore   by necessary  implication  the trial of the said  offences  was excluded from the jurisdiction of ordinary criminal  courts. This argument was sought to be reinforced by the  provisions of  s.  69  of the Army Act whereunder, it was  said,  by  a fiction,  offences  committed by army personnel  which  were triable by ordinary courts were to be deemed to be  offences committed  against  the said Act.  That  difference  between offences against the Army Act and the offences deemed to  be committed against the Army Act, the argument proceeded,  was an  unfailing  clue for the true construction  of  the  pro- visions of the Army Act in that the offences under the first category  were exclusively triable by court martial and  the

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offences; of the latter category were subject to  concurrent jurisdiction  of  two courts.  The logical  conclusion  from this premises, it was said, was that the provisions designed to  resolve  conflict of jurisdiction related  only  to  the second  category  of  offences.   Assuming  that  the   said contention was wrong, it was argued, s. 126 of the Army  Act is peremptory in its language, namely, that a criminal court shall not have jurisdiction to try an offence                    27 210 defined under the Army Act, unless the conditions laid  down therein  were  strictly  complied  with,  that  is,   unless requisite notice is given to the officer referred to in s. 125 of the Act. To   appreciate  the  said  argument  it  is  necessary   to scrutinize  the provisions of the Army Act in  some  detail. Section  2  describes  the  different  categories  of   army personnel  who are subject to the Army Act.   Section  3(ii) defines "civil offence" to mean "an offence which is triable by  a criminal court"; a. 3(vii) defines "court-martial"  to mean  "a  court-martial  held under this  Act";  s.  3(viii) defines  "criminal  court"  to mean  "a  court  of  ordinary criminal justice in any part of India, other than the  State of Jammu and Kashmir"; s. 3(xvii) defines "offence" to  mean "any act or omission punishable under this Act and  includes a civil offence"; and s. 3(xxv) declares that "all words and expressions used but not defined in this Act and defined  in the  Indian Penal Code shall be deemed to have the  meanings assigned  to them in that Code." Chapter VI is comprised  of ss. 34 to 70.  The heading of the Chapter is "Offences".  As we  have already noticed, the word "offence" is  defined  to mean not only any act or omission punishable under the  Army Act, but also a civil offence.  Sections 34 to 68 define the offences  against the Act triable by court-martial and  also -give  the  punishments for the said offences.   Section  69 says that any person subject to the Act who at any Place  in or beyond India commits any civil offence shall be deemed to be  guilty  of an offence against the Act  and,  if  charged therewith under this section, shall be liable to be tried by a  court-martial  and,  on  conviction,  be  punishable   as provided for the offence under any law in force in India  or such  less punishment as is in the Act mentioned.  Under  s. 70,               "  A person subject to this Act who commits an               offence of murder against a person not subject               to  military,  naval or air force law,  or  of               culpable  homicide  not  amounting  to  murder               against  such a person or of rape in  relation               to  such a person, shall not be deemed  to  be               guilty  of  an offence against  this  Act  and               shall not be tried by a Court martial." 211 There are three exceptions to this section with which we are not concerned now.  Shortly stated, under this Chapter there are  three  categories  of offences,  namely,  (1)  offences committed by a person subject to the Act triable by a court- martial  in respect whereof specific punishments  have  been assigned; (2) civil offences committed by the said person at any  place  in or beyond India, but deemed  to  be  offences committed  under the Act and, if charged under s. 69 of  the Act, triable by a court-martial; and (3) offences of  murder and  culpable  homicide  not amounting  to  murder  or  rape committed  by a person subject to the Act against  a  person not  subject  to  the  military  law.   Subject  to  a   few exceptions,  they are not triable by court-martial, but  are

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triable   only  by  ordinary  criminal  courts.   The   said categorisation  of offences and tribunals necessarily  bring about  a conflict of jurisdiction.  Where an offence is  for the  first  time  created by the Army  Act,  such  as  those created by ss. 34, 35, 36, 37 etc., it would be  exclusively triable by a courtmartial; but where a civil offence is also an  offence under the Act or deemed to be an  offence  under the Act, both an ordinary criminal court as well as a court- martial would have jurisdiction to try the person committing the  offence.  Such a situation is visualized  and  provided for by as. 125 and 126 of the Act.  Under s. 125,               "When  a  criminal court and  a  court-martial               have  each  jurisdiction  in  respect  of   an               offence, it shall be in the discretion of  the               officer  commanding  the  army,  army   corps,               division  or independent brigade in which  the               accused  person  is  serving  or  such   other               officer as may be prescribed to decide  before               which   court   the   proceedings   shall   be               instituted, and, if that officer decides  that               they  should  be instituted  before  a  court-               martial,  to  direct that the  accused  person               shall be detained in military custody."               Under a. 126(1) of the Act,               "When a criminal court having jurisdiction  is               of   opinion   that   proceedings   shall   be               instituted  before  itself in respect  of  any               alleged  offence, it may, by  written  notice,               require the officer referred to in               212               section  125 at his option, either to  deliver               over the offender to the nearest magistrate to               be  proceeded against according to law, or  to               postpone  proceedings pending a  reference  to               the Central Government."               Clause (2) of that section says that,               "In  every  such case the said  officer  shall               either deliver over the offender in compliance               with the requisition, or shall forthwith refer               the question as to the court before which  the               proceedings  are  to  be  instituted  for  the               determination of the Central Government, whose               order upon such reference shall be final." Section 125 presupposes that in respect of an offence both a criminal  court  as  well  as  a  court-martial  have   each concurrent  jurisdiction.  Such a situation can arise  in  a case  of an act or omission punishable both under  the  Army Act.  as  well as under any law in force in India.   It  may also arise in the case of an offence deemed to be an offence under the Act.  Under the scheme of the said two provisions, in the first instance,, it is left to the discretion of  the officer mentioned in s. 125 to decide before which court the proceedings shall be instituted, and, if the officer decides that  they should be instituted before a court-martial,  the accused person is to be detained in military custody; but if a  criminal court is of opinion that the said offence  shall be  tried before itself, he may issue the  requisite  notice under  s.  126 either to deliver over the  offender  to  the nearest magistrate or to postpone the proceedings pending  a reference to the Central Government.  On receipt of the said requisition,  the  officer  may  either  deliver  over   the offender  to the said court or refer the question of  proper court for the determination of the Central Government  whose order  shall  be  final.   These  two  sections  provide   a satisfactory   machinery   to  resolve   the   conflict   of

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jurisdiction,  having  regard  to  the  exigencies  of   the situation. What is more, s. 127 of the Army Act provides for successive trials by court-martial and by criminal court in respect  of the  same  offence.  Under sub-s. (1) of  that  section,  "A person convicted or acquitted by a                             213 court-martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the  same offence,  or  on  the same facts." But  sub-s.  (2)  thereof imposes  a  limitation in the matters  of  punishment;  for, under  that  sub-section,  the  criminal  court  shall,   in awarding  punishment,  have  regard to  the  punishment  the offender may already have undergone for the said offence. The  scheme  of  the Act, therefore,  is  self-evident.   It applies to offences committed by army personnel described in s.  2  of the Act; it creates new  offences  with  specified punishments,  imposes  higher  punishments  to  pre-existing offences,  and  enables civil offences by a  fiction  to  be treated   as   offences  under  the  Act;  it   provides   a satisfactory   machinery  for  resolving  the  conflict   of jurisdiction.   Further  it  enables,  subject  to   certain conditions,  an  accused to be tried  successively  both  by court-martial  and  by  a  criminal  court.   It  does   not expressly bar the jurisdiction of criminal courts in respect of  acts or omissions punishable under the Act, if they  are also  punishable under any other law in force in India;  nor is  it  possible  to  infer  any  prohibition  by  necessary implication.   Sections  125, 126 and 127 exclude  any  such inference,  for they in express terms provide not  only  for resolving conflict of jurisdiction between a criminal  court and  a court-martial in respect of a same offence, but  also provide  for successive trials of an accused in  respect  of the same offence. Now  let  us apply this legal position to the facts  of  the case.  Under s. 52 of the Act, any person subject to the Act who commits theft of any property belonging to Government or to   any  military,  naval  or  air  force  mess,  band   or institution, or to any person subject to military, naval  or air force law, or dishonestly misappropriates or converts to his own use any such property, or commits criminal breach of trust  in  respect of any such property, or does  any  other thing  with intent to defraud, or to cause wrongful gain  to one  person  or wrongful loss to another  person  shall,  on conviction  by  court-martial,  be  liable  to  suffer   im- prisonment for a term which may extend to ten years 214 or such less punishment as is in the act mentioned.  Section 2  (xxv)  says that all words and expressions used  but  not defined in the Army Act and defined in the Indian Penal Code shall  be deemed to have the  meanings assigned to  them  in that  Code.  The section does not create new  offences,  but prescribes higher punishments if the said offences are tried by  a  court-martial.  The appellant and the  other  accused were  charged in the present case, among others, for  having been  parties  to a criminal conspiracy  to  dishonestly  or fraudulently  misappropriate or otherwise convert  to  their own  use  the military stores and also  for  dishonestly  or fraudulently  misappropriating  the  same.   The  said  acts constitute  offences under the Indian Penal Code  and  under the  Prevention of Corruption Act.  They are  also  offences under  s.  52  of  the Army  Act.   Though  the  offence  of conspiracy does not fall under s. 52 of the Act, it, being a civil offence, shall be deemed to be an offence against  the Act by the. force of s. 69 of the Act.  With the result that

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the offences are triable both by an ordinary criminal  court having  jurisdiction to try the said offences and  a  court- martial.   To such a situation ss. 125 and 126  are  clearly intended to apply.  But the designated officer in s. 125 has not chosen to exercise his discretion to decide before which court  the proceedings shall be instituted.  As he  has  not exercised  the  discretion,  there is no  occasion  for  the criminal  court  to invoke the provisions of s. 126  of  the Act,  for  the second part of s. 126(1), which  enables  the criminal  court to issue a notice to the officer  designated in  s.  125 of the Act to deliver over the offender  to  the nearest magistrate or to postpone the proceedings pending  a reference to the Central Government, indicates that the said subsection  presuppose,%  that the  designated  officer  has decided  that the proceedings shall be instituted  before  a court-martial and directed that the accused person shall  be detained  in  military  custody.  If no  such  decision  was arrived  at, the Army Act could not obviously be in the  way of a criminal court exercising its ordinary jurisdiction  in the manner provided by law. 215 The correct approach to the problem may be stated thus:  The appellant  and  the other accused  have  committed  offences under the Indian Penal Code and the Prevention of Corruption Act.  By reason of s. 7 of the Criminal Law (Amendment) Act, 1952,  the  said  offences are triable by  a  special  judge appointed  under that Act.  The special judge  so  appointed would have jurisdiction to try the said offences unless  the Army  Act expressly, or by necessary  implication,  excluded the offences alleged to have been committed by the appellant and  others  from  the  jurisdiction  of  that  court.   The aforesaid  discussion  of  the provisions of  the  Army  Act indicates that there is not only no such exclusion but  also that  there  is  clear and  unambiguous  indication  to  the contrary. An argument advanced by learned counsel for the appellant in this context may conveniently be noticed at this stage.  The second  branch  of the argument of learned counsel  for  the appellant  under this head is based upon s. 549 of the  Code of  Criminal  Procedure.  Under that section,  "The  Central Government may make rules, consistent with this Code and the Army  Act...............  as to the cases in  which  persons subject  to military, naval or air-force law shall be  tried by  a  court  to  which this  Code  applies,  or  by  Court- martial ................ . The Central Government made rules in exercise of the power conferred on it under this section. No rule was made prescribing that the offences with which we are  now concerned shall be tried only by  a  court-martial. But reliance is made on r. 3 which reads:               "Where a person subject to military, naval  or               air-force  law is brought before a  Magistrate               and  charged with an offence for which  he  is               liable  to be tried-by a  Court-martial,  such               Magistrate  shall  not  proceed  to  try  such               person  or  to  inquire with  a  view  to  his               commitment for trial by the Court of  Sessions               or  the High Court for any offence triable  by               such Court, unless,               (a)   he  is  of opinion, for  reasons  to  be               recorded,  that he should so  proceed  without               being  moved  thereto by  competent  military,               naval or air-force authority; or               216               (b) he is moved thereto by such authority." This  rule obviously cannot apply unless the  Special  Judge

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constituted under the Criminal Law (Amendment) Act, 1952, is a  magistrate within the meaning of  that rule.   A  special judge  is  appointed  under  s. 6(1)  of  the  Criminal  Law (Amendment)  Act  to  try the  offences  specified  therein. Section 6(2), of that Act lays down that "A person shall not be  qualified for appointment as a special judge under  this Act  unless  he  is, or has been, a  sessions  Judge  or  an additional  sessions  Judge or an assistant  sessions  Judge under the Code of Criminal Procedure, 1898 (V of 1898)."               Section 8(1) of the said Act says,               "A  Special  Judge  may  take  cognizance   of               offences  without the accused being  committed               to  him for trial, and in trying  the  accused               persons, shall follow the procedure prescribed               by the Code of Criminal Procedure, 1898 (Act V               of  1898), for the trial of warrant  cases  by               magistrates."               Under sub-s. (3) thereof,               "Save  as provided in sub-section (1) or  sub-               section  (2),  the provisions of the  Code  of               Criminal  Procedure,  1898, shall, so  far  as               they are not inconsistent with this Act, apply               to the proceedings before a Special Judge; and               for  the purpose of the said  provisions,  the               Court of the Special Judge shall be deemed  to               be  a Court of session trying cases without  a               jury  or without the aid of assessors and  the               person  conducting  a  prosecution  before   a               special  judge shall be deemed to be a  public               prosecutor." Under s. 9 of the said Act,               "The  High Court may exercise, so far as  they               may be applicable, all the powers conferred by               Chapters XXXI and XXXII of the Code of  Crimi-               nal Procedure, 1898 (Act V of 1898), on a High               Court as if the Court of a Special Judge  were               a Court of session trying cases without a jury               within the local limits of the jurisdiction of               the High Court." These  provisions  equate a special judge  with  a  sessions judge, and the provisions of the Code of Criminal  Procedure applicable  to a sessions judge, in so far as they  are  not inconsistent with the Act, are made                             217 applicable to a special judge.  But it is said that s.  8(1) of  the Act puts him on par with a magistrate and  therefore r.  (3) of the rules framed under s. 549 which applies to  a magistrate  equally  applies  to  a  special  judge.    This argument overlooks the limited purpose for which s. 8(1)  is enacted.   Section  8 of the Criminal  Law  (Amendment)  Act makes a distinction between the power of a special judge  to take  cognizance  of  an offence and  the  procedure  to  be followed  by  him  in trying the case.   In  trying  accused persons,  he is enjoined to follow the procedure  prescribed by  the Code of Criminal Procedure for the trial of  warrant cases by magistrates.  The warrant procedure is incorporated in  the Act by reference to the Code of Criminal  Procedure. Chapter  XXI of the Code of Criminal Procedure provides  the procedure for the trial of warrant cases; and s. 549 is  not one  of the sections in that Chapter.  Nor does  it  empower the  Central Government to make rules modifying the  warrant procedure.   That apart, can it be said that, by  reason  of the procedure to be followed by the special judge, he  would be  a magistrate empowered to try such a person  within  the meaning  of  r.  (3)?   Section 8(1)  of  the  Criminal  Law (Amendment)  Act  maintains  a  clear  distinction   between

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jurisdiction  and  the  procedure.  It  is,  therefore,  not possible to hold that a special judge is a magistrate within the meaning of r. (3).  If so, it follows that r. (3) has no application  to the trial of an army personnel by a  special judge. There  is a more formidable obstacle in the way  of  learned counsel’s   argument.   Section  7  of  the   Criminal   Law (Amendment) Act, 1952, reads:               "Notwithstanding  anything  contained  in  the               Code  of  Criminal Procedure, 1898 (Act  V  of               1898)  or  in  any  other  law  the   offences               specified in subsection (1) of section 6 shall               be triable by special Judges only." Doubtless  the  Army Act is comprehended by the  words  "any other  law".  The offences with which we are  now  concerned are  certainly offences specified in sub-s. (1) of s.  6  of the  Criminal Law (Amendment) Act.  The non obstante  clause in s. 7 clearly confers 218 jurisdiction to try persons committing the said offences  on a special judge.  But it is contended that the Army Act is a special  Act  and therefore s. 7 found in  the  general  Act cannot  take  away the jurisdiction conferred  on  a  court- martial  in respect of the said offences.  That  proposition of  law  may  have some bearing when there  is  conflict  of jurisdiction arising out of a general Act and a special Act, without  any specific exclusion of the jurisdiction  in  the general  Act of that conferred under the special  Act.   But that  principle may not have any relevance to a  case  where the  general Act in express terms confers jurisdiction on  a particular tribunal in respect of specified offences to  the exclusion of anything contained in any other law.  In such a situation,  the  intention of the Legislature is  clear  and unambiguous,  and  no  question  of  applying  any  rule  of interpretation would arise, for the rules of  interpretation are   evolved  only  to  ascertain  the  intention  of   the Legislature. It is contended that s. 7 confers an exclusive  jurisdiction on  a special judge only in regard to offences specified  in sub-s.  (1)  of s. 6 and that the said subsection  does  not comprise  offences under s. 52 of the Army Act.  There is  a fallacy underlying this argument.  Certain acts committed or omissions made by a person constitute offences under s. 6(1) of  the Criminal Law (Amendment) Act, 1952.  Under s.  7  of the said Act, the said offences are exclusively triable by a special judge.  In the present case the accused were charged with having committed offences expressly falling under B.  6 of  the  said  Act and, therefore,  the  special  judge  had clearly  jurisdiction to try the accused in respect  of  the said  offences.   The  mere  fact  that  the  said  acts  or omissions  might also constitute an offence under s.  52  of the Army Act would not be of any relevance, as  jurisdiction was    exclusively   conferred   on   the   special    judge notwithstanding  anything  contained in any other  law.   If that be so, the special judge had exclusive jurisdiction  to try offences covered by s.    6   of   the   Criminal    Law (Amendment) Act, 1952. At  this stage, another argument of learned counsel  may  be adverted  to.  He says that some of the offences with  which the accused are charged in the present                             219 case  are not those enumerated in s. 6 of the  Criminal  Law (Amendment)  Act, 1952.  This objection is clearly  answered by s. 7(b) of the said Act which says,               "When  trying  any case, a special  judge  may

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             also  try  any offence other than  an  offence               specified in section 6 with which the  accused               may,  under  the Code of  Criminal  Procedure,               1898, be charged at the same trial." It  is  then  argued  that the  prosecution  has  failed  to establish  that the Central Government accorded sanction  to prosecute  the appellant under s. 6(1) of the Prevention  of Corruption Act.  Under s. 6(1)(a) of the Prevention of Corruption Act,               "No Court shall take cognizance of an  offence               punishable under section 161 or section 164 or               section 165 of the Indian Penal Code, or under               subsection  (2)  of  section 5  of  this  Act,               alleged  to  have been commuted  by  a  public               servant, except with the previous sanction-(a)               in  the  case of a person who is  employed  in               connection  with the affairs of the Union  and               is  not removable from his office save  by  or               with  the sanction of the Central  Government,               of the Central Government............ It  is common case that the appellant was a  public  servant within  the meaning of the said sub-section and,  therefore, he cannot be prosecuted without the sanction of the Central. Government.   The  sanction  given  in  this  case  for  the prosecution of the appellant reads thus: " . . . . . . . . . . . . . . . . . . . . NOW,  THEREFORE, THE CENTRAL GOVERNMENT doth  hereby  accord sanction  under section 197 of the Criminal  Procedure  Code (Act  V  of 1898) and section 6(1)(a) of the  Prevention  of Corruption  Act,  1947  (II of 1947) to  the  initiation  of proceedings   to   prosecute  in  a   Court   of   competent jurisdiction  the  said Major E. G. Barsay and  Shri  H.  S. Kochhar  in  respect  of the aforesaid  offences  and  other cognate offences punishable under other provisions of law.  Sd. M. Gopala Menon,  Deputy Secretary to the Govt. of India." 220 Ex  facie  the  said order  giving  the  requisite  sanction purports  to  have been issued in the name  of  the  Central Government  and  is signed by the Deputy  Secretary  to  the Government  of India in the Ministry of Home Affairs.   P.W. 36, Dharambir, an Assistant in the Minstry of Home  Affairs, New  Delhi, has given evidence in respect of this  document. He  says that the papers relating to the present  case  were submitted  to the Home Ministry by the Inspector General  of Police,   Special  Police  Establishment,  New  Delhi,   for obtaining  the necessary sanction, that the papers were  put up  before the Deputy Secretary in that Ministry,  that  the Deputy Secretary was competent to accord sanction on  behalf of  the President, and that he gave the said sanction  under his signature.  In the cross-examination, this witness  says that he cannot say whether the Deputy Secretary’s  signature was  in  his own right or by way of  authentication  of  the President’s  order.   This uncontradicted  evidence  clearly established  that  the  Deputy Secretary  was  competent  to accord sanction on behalf of the President and that he  gave the  sanction  in exercise of the power  conferred  on  him, presumably, under the rules framed by the President in  this behalf  The  statement made by this witness  in  the  cross- examination is not inconsistent with that made by him in the examination-in-chief.   The Deputy Secretary may have  power to make some orders in his own right and also may have power to  authenticate  other  orders issued in the  name  of  the President.   But  in  this case, this  witness  has  clearly deposed  that  the  Deputy Secretary  had  power  to  accord

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sanction  in  his own right and when the  order  giving  the sanction  ex facie shows that he did not authenticate it  by order  of  the  President, we must hold  that  he  gave  the sanction  in  his own right.  In this context,  an  argument based  upon  Art.  77 of the Constitution  may  be  noticed. Under  el.  (1)  of Art. 77, all executive  actions  of  the Government  of India shall be expressed to be taken  in  the name of the President; and under cl. (2) thereof, orders and other  instruments  made  and executed in the  name  of  the President shall be authenticated in                             221 such  manner as may be specified in rules to be made by  the President, and the validity of an order or instrument  which is  so authenticated shall not be called in question on  the ground  that  it  is  not an order  or  instrument  made  or executed  by the President.  Under the General Clauses  Act, the expression "President" means the Central Government.  It is, therefore, argued that as the order issuing the sanction was  not expressed to be made in the name of the  President, the  sanction was void.  This Article and the  corresponding Article viz., Art. 166, were subject to judicial scrutiny by this  Court.  The validity of an order of detention made  by the Bombay Government under s. 3 of the Preventive Detention Act,  1950, was considered in The State of Bombay  v.  Puru- shottam  Jog Naik (1).  There, in the body of the order  the "satisfaction"  was  shown to be that of the  Government  of Bombay;  at  the bottom of the order the  Secretary  to  the Government  of Bombay, Home Department, signed it under  the words  "By  order  of  the  Governor  of  Bombay".   It  was contended  that  the  order  was defective  as  it  was  not expressed  to  be  in the name of the  Governor  within  the meaning  of Art. 166(1) of the Constitution and  accordingly was not protected by cl. (2) of the said Article.  Adverting to  this contention, Bose, J., speaking for the Court,  said at p. 678:               "In  our  opinion, the Constitution  does  not               require a magic incantation which can only  be               expressed in a set formula of words.  What  we               have  to see is whether the substance  of  the               requirements is there." This  judgment lays down that we must look at the  substance of  the order.  On a construction of the order that  was  in question  in that case, having regard to the  definition  of "State  Government"  in  the General  Clauses  Act  and  the concluding  words "By order of the Governor of Bombay",  the Court came to the conclusion that the order was expressed to have been taken in the name of the Governor.  In  Dattatreya Moreshwar Pangarkar v. The State of Bombay (2), an (1) [1952] S.C.R. 674. (2) [1952] S.C.R. 612. 222 order  made  under the Preventive Detention Act,  1950,  was questioned  on  the ground that it did not comply  with  the provisions  of Art. 166(1) of the Constitution.   There  the order was made in the name of the Government and was  signed by  one  Kharkar  for the Secretary  to  the  Government  of Bombay,  Home  Department.  Das, J., as he then  was,  after referring to the decision of the Federal Court in J. K.  Gas Plant  Manufacturing Co., (Rampur) Ltd. v. The  King-Emperor (1) observed at p. 625 thus:               "Strict  compliance with the  requirements  of               article 166 gives an immunity to the order  in               that  it  cannot be challenged on  the  ground               that it is not an order made by the  Governor.               If,   therefore,  the  requirements  of   that

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             article  are not complied with, the  resulting               immunity  cannot  be  claimed  by  the  State.               This, however, does not vitiate the order  it-               self." The learned Judge came to the above conclusion on the ground that  the provisions of the said article are only  directory and not mandatory.  This decision was followed by this Court in  P.  Joseph John v. The State of  Travancore-Cochin  (2). There  the "show cause notice" issued under Art. 311 of  the Constitution was impugned on the ground that it was contrary to  the  provisions  of Art. 166 thereof.   The  notice  was issued  on  behalf of the Government and was signed  by  the Chief  Secretary to the Government, who had under the  rules of  business  framed  by the Rajpramukh the  charge  of  the portfolio  of "service and appointments" at the  Secretariat level  in the State.  This Court held that the  said  notice was  issued  in substantial compliance  with  the  directory provisions  of  Art. 166 of the  Constitution.   The  latest decision  on the point is that in Ghaio Mall & Sons  v.  The State of Delhi(1).  There the question was whether the  com- munication   issued   by  the  Under   Secretary,   Finance, Government of Delhi State, had complied with the  provisions of  Art. 166 of the Constitution.  This Court held  that  it did not comply with the provisions of (1) (1947) F.C.R. 141.       (2) [1935] 1 S.C.R. 1011.                             223 Art.  166 of the Constitution and also found that  the  said order  was  not,  as a matter of fact,  made  by  the  Chief Commissioner.   When  the decision in  Dattatreya  Moreshwar Pangarkar’s case (1) was cited this Court observed at p. 1439 thus:               "In that case there was ample evidence on  the               record  to prove that a decision had  in  fact               been  taken by the appropriate  authority  and               the    infirmity   in   the   form   of    the               authentication  did not vitiate the order  but               only  meant that the presumption could not  be               availed of by the State." The  foregoing  decisions authoritatively settled  the  true interpretation  of  the  provisions  of  Art.  166  of   the Constitution.   Shortly stated, the legal position is  this: Art. 166(1) is only directory.  Though an impugned order was not issued in strict compliance with the provisions of  Art. 166(1),  it can be established by evidence aliunde that  the order was made by the appropriate authority.  If an order is issued in the name of the Governor and is duly authenticated in  the  manner prescribed in r. (2) of  the  said  Article, there  is  an  irrebuttable presumption that  the  order  or instrument  is made or executed by the Governor.   Any  non- compliance  with  the provisions of the said rule  does  not invalidate  the order, but it precludes the drawing  of  any such  irrebuttable presumption.  This does not  prevent  any party  from  proving by other evidence that as a  matter  of fact  the order has been made by the appropriate  authority. Article  77  which  relates to conduct of  business  of  the Government of India is couched in terms similar to those  in Art.   166   and  the  same  principles  must   govern   the interpretation of that provision. If  that  be  the legal position, in the  instant  case  the impugned  order does not comply with the provisions of  Art. 77(2) of the Constitution and, therefore, it is open to  the appellant  to  question  the validity of the  order  on  the ground that it was not an order made by the President and to prove  that it was not made by the Central Government.   But this legal position does

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(1)  [1952] S.C.R. 612. 224 not  help  the appellant, for as we have  pointed  out,  the uncontroverted  evidence  of P. W. 36, an Assistant  in  the Home Ministry, which was accepted by the High Court and  the Special  Judge, establishes that  the order was made by  the Deputy  Secretary  on behalf of the  Central  Government  in exercise  of  the  power conferred on him  under  the  rules delegating such power to him. The next contention challenges the legal competence of  Jog, an   Inspector  of  Police  in  the  Delhi  Special   Police Establishment,  to make the investigation.  In his  evidence Jog  stated  that the Inspector General of  Police,  Special Police  Establishment, New Delhi, empowered him under s.  5A of  the  Prevention  of Corruption Act  to  investigate  the offences  mentioned  therein  without the  sanction  of  any magistrate.   The  question  is  whether  he  can  make   an investigation in regard to the offences alleged to have been committed by the accused in the present case.  Section 5A of the Prevention of Corruption Act, 1950, on which reliance is placed reads:               "Notwithstanding  anything  contained  in  the               Code  of Criminal Procedure., 1898, no  police               officer below the rank-               (a)   in  the presidency towns of  Madras  and               Calcutta,  of  an  assistant  commissioner  of               police,                (b)in  the  presidency town of Bombay,  of  a               superintendent of police, and (c)  elsewhere, of a deputy superintendent of police,  shall investigate  any  offence  punishable  under  section   161, section  165  or section 165A of the Indian  Penal  Code  or under sub-section (2) of section 5 of this Act, without  the order  of  a presidency magistrate or a  magistrate  of  the first class, as the case may be, or make any arrest therefor without a warrant: Provided  that a police officer of the Delhi Special  Police Establishment, not below the rank of an Inspector of police, who  is  specially authorized by  the  Inspector-General  of Police  of  that  Establishment may, if he  has  reasons  to believe that, on account of the delay involved in  obtaining the order 225               of  a  magistrate  of  the  first  class,  any               valuable evidence relating to such offence  is               likely   to   be   destroyed   or   concealed,               investigate  the offence without  such  order;               but   in  every  case  where  he  makes   such               investigation,  the police officer  shall,  as               soon as may be, send a report of the same to a               magistrate  of the first class, together  with               the  circumstances in which the  investigation               was made." The  proviso  governs  the  present  case.   Jog,  who   was specially  authorized  by the  Inspector-General  of  Police under  s.  5A  of  the  Prevention  of  Corruption  Act   to investigate   the  offences  mentioned  therein   being   an Inspector  of  Police, was certainly empowered  to  make  an investigation within the meaning of that proviso.  But  what is  contended  is that the power to investigate  under  that proviso  is  hedged in by two conditions, namely,  that  the said officer should have reasons to believe that on  account of delay involved in obtaining the order of a magistrate  of the  first  class, any valuable evidence  relating  to  such offence  is  likely  to  be  destroyed  or  concealed,   and

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subsequently  he should have sent a report of the same to  a magistrate   of   the   first  class   together   with   the circumstances in which the investigation was made.  The High Court on a consideration of the evidence found that the said two conditions have not been complied with by Jog.  On  that finding,  the  question  arises whether  the  trial  of  the accused  by  the  Special Judge was  vitiated  by  the  non- compliance with the aforesaid two conditions. This  Court in H. N. Rishbud & Inder Singh v. The  State  of Delhi  (1)  held  that s. 5(4) and proviso to s.  3  of  the Prevention of Corruption Act, 1947, and the corresponding s. 5A  of the Prevention of Corruption (Second Amendment)  Act, 1952 (LIX of 1952) are mandatory and not directory and  that an investigation conducted in violation thereof is  illegal. In  the same decision this Court also pointed out  that  the illegality committed in the course of investigation did  not affect  the  competence and jurisdiction of  the  court  for trial and where cognizance of the case had in fact (1)  [1955] 1 S.C.R. 1150. 29 226 been  taken  and the case had proceeded to  termination  the validity of the preceding investigation did not vitiate  the result unless miscarriage of justice of been caused thereby. The   question   is  whether  in  the   present   case   the investigation  made by the Inspector duly authorized by  the Inspector-General  of Police to investigate under s.  5A  of the Prevention of Corruption Act, without complying with the two conditions laid down in the proviso to that section, had caused any prejudice to the accused.  The High Court,  after considering  the  entire evidence, found  that  the  alleged irregularity would not justify the conclusion that the  non- observance of the conditions prescribed in the proviso to s. 5A  of the Prevention of Corruption Act had  occasioned  any failure  of justice.  Learned counsel has taken  us  through different  steps  in  the investigation  made  by  the  said officer, and we have no reason to differ from the conclusion arrived at by the High Court. The validity of the investigation made by Jog was questioned yet on another ground.  It was said that he had not obtained the requisite permission of the State Government under s.  6 of the Delhi Special Police Establishment Act, 1946,  before he  started  the  investigation.   Section  5  of  that  Act authorizes the Central Government to extend to any area  the powers  and  jurisdiction of members of  the  Delhi  Special Police  Establishment for the investigation of any  offences or classes of offences specified in a notification under  s. 3 thereof.  But s. 6 of that Act says that nothing contained in  s. 5 shall be deemed to enable any member of  the  Delhi Special   Police  Establishment  to  exercise   powers   and jurisdiction  in  any  area in a State, not  being  a  Union Territory  or  railways  area, without the  consent  of  the Government  of that State.  The Government of  Bombay,  Home Department,  addressed a letter to the Government of  India, dated August 13,1949 and it was stated therein,               ".....I   am  directed  to  state  that   this               Government   re-affirms,  with  reference   to               section   6  of  the  Delhi   Special   Police               Establishment Act, 1946, the consent given for               an indefinite period under its letter               227               No. 5042/4-D, dated the 6th November 1946,  to               the  members  of  the  Delhi  Special   Police               Establishment     exercising    powers     and               jurisdiction  in the area of the not  province

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             of Bombay." It  was contended before the High Court and it was  repeated before  us that the consent should have been given to  every individual  member of the Special Police  Establishment  and that  a general consent would not be a good consent.  We  do not see any force in this argument.  Under a. 6 of the Delhi Special  Police  Establishment Act, no member  of  the  said Establishment  can exercise powers and jurisdiction  in  any area  in  a State without the consent of the  Government  of that  State.   That  section does not lay  down  that  every member  of  the said Establishment  should  be  specifically authorized to exercise jurisdiction in that area, though the State  Government  can do so.  When a State  Government  can authorize   a   single   officer  to   exercise   the   said jurisdiction, we do not see any legal objection why it could not  authorize  the  entire force  operating  in  that  area belonging to that Establishment to make such  investigation. The  authorization filed in this case sufficiently  complies with  the  provisions of s. 6 of the  Delhi  Special  Police Establishment  Act,  1946, and there are no merits  in  this contention. The  next contention centres round the framing  of  charges. The charges framed in this case have been fully extracted in the  earlier part of the judgment.  The first  objection  is that  the  Special  Judge had no  jurisdiction  to  try  the accused  on  charges  involving offences  other  than  those mentioned  in s. 6(1) of the Criminal Law  (Amendment)  Act, 1952.   This  argument ignores s. 7(2)(b) of the  Act  which says,  "When trying any case, a special judge may  also  try any  offence  other than an offence specified in  section  6 with  which  the  accused may, under the  Code  of  Criminal Procedure,  1898,  be  charged  at  the  same  trial."   The objection, therefore, has no force. The next criticism is that there can be no legal charge of a conspiracy  between  accused Nos.  1 to 3,  who  are  public servants,  and  accused  Nos. 4 to 6,  who  are  not  public servants, in respect of offences under 228 the  Prevention of Corruption Act for the reason  that  they can  only  be  committed  by  public  servants.   But   this contention  ignores  the scope of the  offence  of  criminal conspiracy.  Section 120A of the Indian  Penal Code  defines "criminal  conspiracy" and under that definition, "When  two or more persons agree to do, or cause to be done, an illegal act,  or an act which is not illegal by illegal means,  such an agreement is designated a criminal conspiracy." The  gist of  the  offence  is an agreement to  break  the  law.   The parties to such an agreement will be guilty of criminal con- spiracy,  though the illegal act agreed to be done  has  not been  done.  So too, it is not an ingredient of the  offence that  all  the parties should agree to do a  single  illegal act.   It may comprise the commission of a number  of  acts. Under  s.  43  of the Indian Penal Code,  an  act  would  be illegal  if it is an offence or if it is prohibited by  law. Under  the first charge the accused are charged with  having conspired  to do three categories of illegal acts,  and  the mere fact that all of them could not be convicted separately in  respect  of  each of the offences has  no  relevancy  in considering  the question whether the offence of  conspiracy has  been committed.  They are all guilty of the offence  of conspiracy  to  do  illegal  acts,  though  for   individual offences all of them may not be liable. The second objection is in regard to the second charge.   It is  said that accused Nos. 4, 5 and 6 could not  be  charged with  having  committed  an offence  under  s.  5(1)(c)  and

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5(1)(d) of the Prevention of Corruption Act, as they are not public  servants.   The  learned Judges of  the  High  Court accepted  the said legal position as correct, but held  that they  could  be convicted under s. 109 of the  Indian  Penal Code,  read  with  cls.  (c)  and (d)  of  s.  5(1)  of  the Prevention  of  Corruption  Act.  But  on  the  merits  they convicted  accused No. 1 under s. 5(2) of the Prevention  of Corruption Act, instead of under the said section read  with s.  34 of the Indian Penal Code, and they convicted  accused No.  4 under s. 109 of the Indian Penal Code, read  with  s. 5(1)(c) and (d) of the Prevention of Corruption Act, instead of under s. 5(2) of the said                             229 Act,  read with s. 34 of the Indian Penal Code.  As  accused No.  4 was dead before the appeal was filed in  this  Court, nothing  need be said about the legality of his  conviction. The  only  outstanding question, therefore, is  whether  the High  Court was justified in convicting accused No. 1  under s. 5(2) of the Prevention of Corruption Act instead of under the  said section read with s. 34 of the Indian Penal  Code. To  such a situation, s. 537 of the Criminal Procedure  Code applies  and  under that section, no sentence  passed  by  a court of competent jurisdiction shall be reversed or altered on  appeal or revision on account of an error,  omission  or irregularity  in  the charge, including  any  misjoinder  of charges,  unless  such  error,  omission,  irregularity   or misdirection  has in fact occasioned a failure  of  justice. This  Court in W. Slaney v. State of M. P. (1) held that  in adjudging  a question of prejudice the concern of the  court should  be  to  see whether the accused had  a  fair  trial, whether he knew what he was being tried for, whether the im- pugned  facts  sought  to be established  against  him  were explained to him clearly and fairly and whether he was given a  full  and fair chance to defend himself.  Judged  by  the said  test it is manifest that accused No. I cannot be  said to  have been prejudiced by his conviction under s. 5(2)  of the  Prevention  of Corruption Act, for accused  No.  I  had clear knowledge from the inception that the prosecution case against  him was that he committed an offence under s.  5(2) of  the Prevention of Corruption Act and that he  had  every opportunity,   and  indeed  he  made  a   sustained   effort throughout  the  trial to defend himself  against  the  said accusation.   It is not possible to hold in this  case  that there was any failure of justice by reason of the High Court convicting  him for a substantive offence under s.  5(2)  of the said Act. So  far  as the third head of the charge is  concerned,  the High Court held that it was bad in regard to accused No.  1. Accused   No.  1,  therefore,  cannot  obviously  have   any grievance with that finding.  For the foregoing reasons,  we hold that there are no merits (1)[1955] 2 S.C.R. 1140. 230 in the contentions raised by learned counsel on the basis of the charges framed in this case. Now  we  come  to the merits of the case.   So  far  as  the appellant  is  concerned,  both the Special  Judge  and,  on appeal the High Court accepted the evidence of Lawrence,  as it  was  corroborated  in  material  particulars  by   other acceptable  evidence.   They  concurrently  found  that  the appellant was a party to the conspiracy.  The finding is one of fact, and the practice of this Court is not to  interfere with such finding except under exceptional circumstances. Learned  counsel  for  the  appellant  made  a  serious  and sustained  attempt  to  have the said  finding  reopened  by

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advancing arguments under the following three heads: (1) The High  Court has failed to draw correct inferences  from  the facts  found  by  it and has  also  drawn  wrong  conclusion ignoring probabilities arising in a given situation; (2) the High Court has ignored the distinction between an untruthful witness  and  a truthful witness, whose evidence  under  the rule  of prudence could be accepted only in so far as it  is corroborated  in material particulars, and the  High  Court, having   disbelieved  Lawrence’s  evidence  in   regard   to important  incidents in his narration, should have  rejected his evidence in toto; and if it had done so, the question of corroboration would not arise for consideration; and (3) the independent  pieces of evidence accepted by the  High  Court did  not  corroborate the evidence of Lawrence  in  material particulars implicating him in the crime. The first argument is a direct attack on the correctness  of the  finding  of fact arrived at by the High Court.   As  we have  said,  the practice of this Court in an  appeal  under Art. 136 of the Constitution is not to allow such an  attack except   in  exceptional  circumstances.   Learned   counsel addressed  at  some length on this aspect of the  case,  and after hearing him, we were satisfied that there were no such exceptional   circumstances  present  in  this  case.    Our reluctance to depart from the usual practice is hightened by the  fact that in the present case, so far as the  appellant is concerned, there are concurrent findings of fact by  both the courts.                             231 The  second  argument  is a subtle  attempt  to  reopen  the findings  of  fact  from  a  different  perspective.    This argument  is based upon a decision of this Court  in  Sarwan Singh   v.  The  State  of  Punjab  (1).   In   that   case, Gajendragadkar,  J., speaking for the Court, observed at  p. 959 thus:               "But  it must never be forgotten  that  before               the Court reaches the stage of considering the               question of corroboration and its adequacy  or               otherwise,  the  first initial  and  essential               question  to  consider is whether even  as  an               accomplice the approver is a reliable witness.               If the answer to this question is against  the               approver  then there is an end of the  matter,               and no question as to whether his evidence  is               corroborated  or not falls to  be  considered.               In   other  words,  the  appreciation  of   an               approver’s  evidence has to satisfy  a  double               test."               Then the learned Judge proceeded to state,               "We have carefully read the judgment delivered               by the High Court but we find no indication in               the  whole  of the judgment that  the  learned               Judges   considered  the  character   of   the               approver’s evidence and reached the conclusion               that  it was the evidence given by a  reliable               witness."               Later on the learned Judge further stated,                "........ the evidence of the approver is  so               thoroughly   discrepant  that  it   would   be               difficult  to resist the conclusion  that  the               approver  in  the  present case  is  a  wholly               unreliable witness." Relying  upon these observations, learned  counsel  contends that  in the present case the High Court did not accept  the evidence  of the approver in regard to important events  and therefore  the High Court should have rejected his  evidence

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without  further  attempting to see whether  there  was  any corroboration in material particulars in other evidence. Before we consider this argument in the context of the facts of  the  present case, we would like at the outset  to  make some  general  observations.   This  Court  could  not  have intended to lay down that the evidence (1)  [1957] S.C.R. 953. 232 of  an  approver and the corroborating  pieces  of  evidence should be treated in two different compartments, that is  to say, the Court shall have first to consider the evidence  of the approver dehors the corroborated pieces of evidence  and reject it if it comes to the conclusion that his evidence is unreliable;  but  if it comes to the conclusion that  it  is reliable then it will have to consider whether that evidence is  corroborated by any other evidence.  This Court did  not lay  down  any such proposition.  In that case  it  happened that  the  evidence  of  the  approver  was  so   thoroughly discrepant  that  the  Court thought that he  was  a  wholly unreliable  witness.  But in most of the cases the said  two aspects  would  be so interconnected that it  would  not  be possible  to give a separate treatment, for as often as  not the  reliability  of  an  approver’s  evidence,  though  not exclusively,  would  mostly depend  upon  the  corroborative support  it  derives  from  other  unimpeachable  pieces  of evidence.   We  must  also make it clear  that  we  are  not equating the evidence of Lawrence with that of an  approver; nor did the Special Judge or the High Court put him  exactly on that footing.  The learned Special Judge in his  judgment observed thus:               "He  (Lawrence) is obviously decoy or spy  and               agent provocateur and his evidence will  have,               therefore, to be approached with great caution               and  much  weight  cannot be  attached  to  it               unless it is corroborated by other independent               evidence    and    circumstances    in     the               case....................  Not  being   tainted               evidence,   it   would  not  suffer   from   a               disability  of  being unworthy  of  acceptance               without independent corroboration.  But  being               interested  evidence,  caution  requires  that               there   should   be  corroboration   from   an               independent  source before its acceptance.  To               convict an accused on the tainted evidence  of               an  accomplice  is  not  illegal  but  it   is               imprudent;  to  convict an  accused  upon  the               partisan   evidence  of  a  person  at   whose               instance  a  trap  is laid by  the  police  is               neither illegal nor imprudent but inadvisable               therefore,  be accepted and relied upon,  only               if  it  is corroborated by  other  independent               evidence and circumstances in the case."                             233 The learned Judges of the High Court practically adopted the same  attitude  in  the  manner of  their  approach  to  the evidence of Lawrence.  The learned Judges observed:               "To  convict  an  accused  upon  the  partisan               evidence of a person at whose instance a  trap               is  laid by the police is neither illegal  nor               imprudent, because it is just possible that in               some  cases  an accomplice may  give  evidence               because he may have a feeling in his own  mind               that  it is a condition of his pardon to  give               that  evidence,  but  no  such   consideration               obtains  in  the  case of the  evidence  of  a

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             person who is not a guilty associate in  crime               but who invites the police to lay a trap.  All               the same, as the person who lodges information               with  the police for the purpose of  laying  a               trap   for  another  is  a  partisan   witness               interested  in seeing that the trap  succeeds,               it  would be necessary and advisable  to  look               for  corroboration  to  his  evidence   before               accepting it.  But the degree of corroboration               in  the  case  of a  tainted  evidence  of  an               accomplice  would be higher than that  in  the               case  of a partisan witness.  In our  opinion,               all  these decisions would  clearly  establish               that  it  would  not be safe to  rely  on  the               evidence of Lawrence who is admittedly a decoy               or  trap witness, without his testimony  being               corroborated from independent sources." Even  Mr.  Amin, learned special counsel on  behalf  of  the State asked the courts to proced to examine the evidence  of Lawrence on the basis that he was a decoy or trap witness. We  are  definitely  of opinion that  both  the  courts  had approached   the  evidence  of  Lawrence  from   a   correct standpoint.   Though  Lawrence was not an approver,  he  was certainly  an  interested witness in the sense that  he  was interested  to see that the trap laid by him succeeded.   He could  at  least be equated with a partisan witness  and  it would  not be admissible to rely upon such evidence  without corroboration.  It would be equally clear that his  evidence was  not a tainted one, but it would only make a  difference in the 30 234 degree  of corroboration required rather than the  necessity for it. Approaching the case from this perspective-in our view  that is  a  correct  one-the learned Special Judge  came  to  the following conclusion:               "There  was no compelling necessity  for  Shri               Lawrence  to  concoct a  false  story  against               Major  Barsay and the other accused.   It  is,               therefore, clear that prima facie there is  no               good  ground to discard the evidence  of  Shri               Lawrence." Then the learned Special Judge considered the  corroborative pieces of evidence and finally held that Lawrence’s evidence had been corroborated in material particulars in respect  of the  appellant.   Likewise, the learned Judges of  the  High Court considered the evidence of Lawrence along with that of other  acceptable witnesses.  Though the learned  Judges  of the  High Court rejected the evidence of Lawrence in  regard to some events either because that part of the evidence  was not consistent with the other parts of his evidence or  with the  evidence of some disinterested witnesses, they did  not see  any reason to reject the story given by Lawrence  as  a myth  or a concoction.  After considering the evidence,  the learned Judges concluded,               "We,  therefore, accept  Lawrence’s  evidence,               find  that his story is probable and true  and               we  also find that the evidence on the  record               justifies the finding of the trial Court  that               there  was  a  conspiracy as  alleged  by  the               prosecution  to smuggle goods out of the  Dehu               Vehicles Depot." Having  accepted broadly the version given by Lawrence,  the High  Court  took the case of each of the accused  and  held that in the case of accused Nos. 1 to 4 Lawrence’s  evidence

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had  been  amply  corroborated  by  other  evidence  in  all material  particulars.   In these circumstances,  we  cannot accept  the contention of learned counsel for the  appellant that  the High Court had rejected the evidence of  Lawrence. As we have said, the High Court did not accept some parts of the  evidence of Lawrence, but it had broadly  accepted  the version  given by Lawrence in regard to the  conspiracy  and the manner in which the articles were smuggled 235 out of the Depot.  If some of the accused were acquitted  it was because there were some discrepancies in the evidence of Lawrence  in respect of them and particularly  because  that part  of  his  evidence was  not  corroborated  in  material particulars  by  other  evidence.  But in the  case  of  the appellant  the  High Court accepted the  evidence  given  by Lawrence  and convicted the appellant because  that  version was corroborated in all material particulars by the evidence of  other  disinterested witnesses.  We,  therefore,  reject this contention. This  leads  us to the consideration of the  only  remaining question,    namely,   whether   Lawrence’s   evidence    is corroborated   in  material  particulars   implicating   the appellant  by other acceptable evidence.  The  corroboration must be by independent testimony confirming in some material particulars  not only that the crime was committed but  also that  the  appellant committed it.  It is not  necessary  to have  corroboration of all the circumstances of the case  or every detail of the crime.  It would be sufficient if  there was  corroboration as to the material circumstances  of  the crime and of the identity of the accused in relation to  the crime.   These  principles  have  been  settled  in  R.   v. Baskerville,  (1) which has rightly been considered  as  the locus  classicus of the law of approver’s evidence  and  has been followed by courts in India.  Looking from that aspect, both the courts have found corroboration from  disinterested witnesses in material particulars implicating the  appellant in  the  crime.   Lawrence gave a detailed  account  of  the unfurling of the scheme of fraud from the date he met  Major Barsay on December 2, 1954, upto December 20, 1954, when the offending truck was obstructed by the police from proceeding further on its onward journey. Lawrence  stated in his evidence that on December  3,  1954, Major Barsay told him, inter alia, that he had chalked out a detailed scheme in consultation with Kochhar to transfer all the  valuable parts lying in Shed No. 48 to Shed No. 17  for the  purpose of itemization, that he had  ’already  recalled Kochhar from (1) [1916] 2 K.B. 658. 236 leave  of absence prior to its expiry and posted him in  the Kit  Stores,  and that he had also posted  Avatarsingh  from Unfit  Sub  Park  to the Kit Stores.   The  prosecution  has established   by  clear  evidence  that  Major  Barsay   was instrumental  in posting Kochhar, accused No. 2, to the  Kit Stores  after  asking him to cut short his leave  which  was for,  a  period of two months.  It was also  established  by evidence  that Major Barsay brought Avatarsingh to  the  Kit Stores.   Though  these  facts  might  not  have  implicated Kochhar  and  Avatarsingh, they  certainly  corroborate  the evidence  of Lawrence that Major Barsay told him that  these transfers were made to facilitate the implementation of  the scheme. Lawrence  stated in his evidence that Major Barsay told  him on  December  3, 1954, that he had chalked  out  a  detailed scheme  in  consultation with Kochhar to  transfer  all  the

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valuable  parts lying in Shed No. 48 to Shed No. 17 for  the purpose  of  itemization, and that as soon as the  Board  of Officers  was appointed there would be a shuttle  of  trucks moving  from Shed No. 48 to Shed No. 17 and vice  versa  and nobody’s suspicion would be roused if one or two trucks were taken  away out of the main gate during the course of  these movements  of the trucks between these two sheds.  There  is evidence  to show that a Board of Officers was appointed  to do the work of itemization and that one Captain Mehendiratta was appointed the President of that Board. Lawrence said that Major Barsay told him that he would  show certain  boxes  from Shed No. 48 to Col.  Rao and  tell  him that  they did not contain many of the articles  which  they were  said to contain, so that Col.  Rao also would  not  be surprised  at the final result of the itemization.   It  has been established by other evidence that on December 8, 1954, Major  Barsay went to Col.  Rao and took him to Shed No.  48 and  showed  him the military stores that were  lying  there awaiting itemization. At about midday on December 18, 1954, Lawrence stated, Major Barsay met him at the Depot and told him that he and  other conspirators would meet at his                             237 residence  to discuss about the scheme.  It is  in  evidence that  on  the  18th the meeting was held as  deposed  to  by Lawrence.  Evidence of Col.  Sindhi and Capt.  Sharma, which was accepted by both the courts, establishes this fact.  The same  evidence also establishes that at that  meeting  Major Barsay,  Saighal, Lawrence and two Sikhs were  present,  and though the two Sikhs were not identified to be accused  Nos. 2 and 3, the presence of accused Nos.  1 and 4 and two Sikhs corroborates the evidence of Lawrence. Lawrence stated that at that meeting Major Barsay  undertook to  do certain things.  According to Lawrence  Major  Barsay told  the conspirators that he would detail a driver of  his confidence  in  a vehicle for executing the  plan,  that  he would send Kochhar to Shed No. 17, order Kochhar to transfer the  itemized  goods  from  Shed  No.  17  to  Shed  No.  26 ostensibly  for the purpose of preservation, that  he  would call  Major Nag on Monday (December 20) and in his  presence he  would  order Lawrence to go to the D.O.D. to  bring  the fire  hoses.   The  evidence  of  Havaldar  Pillay,   Godse, Suryawanshi  and  G.  K. Pillay establishes  the  fact  that Barsay  secured one truck and a driver for shifting  of  the stores  from  Shed No. 17 to Shed No. 26.  The  evidence  of Jamadar  Lachmansing proves that Major Barsay went  to  Shed No. 17 and ordered the shifting of stores from there to Shed No.  26 for conditioning and preservation.  The evidence  of Major Nag establishes that in his presence Major Barsay sent for  Lawrence and asked the latter to go to the  D.O.D.  and expedite  the return of the fire hoses.   These  established facts  certainly corroborate the evidence of Lawrence as  to what took place on the 18th and also his evidence that Major Barsay gave the said instructions to him in the presence  of Major Nag. The evidence of Lawrence that Major Barsay told him and  the other conspirators that there should be two loadings of  the trucks at Shed No. 17, the first loading to carry  innocuous articles and the second the articles intended to be smuggled out  of  the Depot, was also corroborated  by  disinterested evidence.  Both the courts accepted that evidence. 238 Then  there  is evidence of the movements  of  Major  Barsay during the crucial time when the smuggling out of the  goods was scheduled to take place.  The evidence of Jogendrasingh,

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Rambhan  and Wagh shows that at about 1-10 p.m. on  December 20, 1954, Major Barsay was rather worried and was moving  to and  fro near the main gate because he was  suspecting  that somebody    was   watching   their    movements.     Jamadar Jogendrasingh  deposed that Major Barsay asked him  to  tell Lawrence,  "not to do it as there was  something  suspicious about  it."  Major Nag also supported this  version.   These nervous movements of Major Barsay certainly corroborate  the evidence  of Lawrence that he was the moving spirit  in  the conspiracy. The  evidence of Lawrence that the duty of going along  with the  truck  was allotted to his part in  the  conspiracy  is corroborated   by  the  circumstances  establisbed  by   the evidence  that Lawrence got into the truck near Shed No.  17 and went in the truck to its destination. The evidence of Lawrence regarding how Major Barsay directed the smuggling of the goods out of the Depot was corroborated by other independent evidence.  There is evidence of Jog and Diwate to show that on December 19, in the morning,  Saighal showed the spot where the transshipment was to take place to Lawrence.   There is the evidence of Darekar to show that  a truck  was arranged and that he was asked by  Yakubsaheb  to take his truck to Talegaon for the transport of iron  goods. There  is  also  the evidence of Darekar  and  Hatnolkar  to establish that accused No. 4 was waiting near the cemetry on the   Talegaon-Dabhade  Road  and  that  Darekar  was   also instructed by Saighal to park the lorry in a particular way. Then  there is the evidence of the police officers that  the goods  brought in the military lorry were being  transported into the civilian truck when they came on the scene. All  this evidence supports the version of Lawrence when  he said that Major Barsay gave the necessary instructions as to the  manner  of  transport  of the  military  goods  to  the civilian truck.                             239 The  said  facts found by both the  courts  below  implicate accused No. 1 in the matter of the preparation, laying  down of the details of implementation and the actual carrying out of  the  scheme  of smuggling the goods  out  of  the  Depot through  all  the  stages and  thereby  establish  that  the appellant was the main conspirator and the brain behind  the conspiracy.   We  cannot, therefore, say  that  the  version given by Lawrence implicating accused No. 1 is not  corrobo- rated  by other independent evidence.  It follows  that  the conviction of the appellant by the High Court is correct. This  leads us to the appeal filed by the State against  the judgment  of the High Court acquitting accused Nos. 2 and  3 on the ground that the evidence of Lawrence implicating them in the offence was not corroborated in material  particulars by  independent evidence.  In this appeal also we  have  not allowed  learned  counsel  for  the  State  to  canvass  the correctness  of the finding arrived at by the High Court  on the  appreciation of the evidence in the case.   Taking  the findings arrived at by the High Court, we find it  difficult to take a different view from that taken by the High  Court. In  regard  to accused No. 2 the High Court arrived  at  the following  findings: (1) There is no evidence or  allegation on  the  record  to show that there  was  any  understanding between  him  and  Major  Barsay  before  he  left  on   two months leave. (2) There is no evidence that Kochhar, accused No.  2, met Lawrence on December 6, 1954. (3) Accused No.  2 moved  Major Barsay by his letter (Ex. 151) to  convene  the itemization board. (4) Prior to the appointment of the board and its constitution, accused No. 2 ordered the shifting  of the "specialist boxed kits" from Shed No. 48 to Shed No. 17,

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but  this  was done under Major Barsay’s  instructions.  (5) Accused  No.  2 was present when Fernandez  was  ordered  by Major Barsay to complete the identification of the first set before  December  13,  even by working on  Sunday  the  12th December, and in that connection a written order was  issued by him on December 11. (6) On December 12 Lawrence persuaded accused No. 2 to go in for two 240 insurance  policies.  (7)  Though  according  to   Lawrence, Kochhar  undertook to prepare a bogus voucher and to  be  at the Depot at the opening hours on Monday the 20th to prepare that voucher in the office of Lawrence, it is admitted  that Kochhar refused to issue the voucher. (8) Accused No. 2  was present  at Shed No. 17 when Major Barsay issued  orders  to shift  the  stores to Shed No. 26.  And (9)  Accused  No.  2 accompanied  Major Barsay to Shed No. 19 in the morning  and lie  was  present when the truck was being  loaded  for  the second  trip at Shed No. 17.  The High Court found that  the said  circumstances,  though  some of  them  might  raise  a suspicion,  did not implicate accused No. 2 in  the  offence and  they  are consistent also with his  innocence.   Though some  of the facts give rise to a suspicion, we  cannot  say that the High Court was wrong in holding that the said facts did not corroborate the evidence of Lawrence in  implicating the said accused in the offence. Now  coming  to  accused No. 3, the  High  Court  found  the following  facts  based on the evidence other than  that  of Lawrence:  (1)  Avatarsing, accused No. 3,  was  transferred from  Unfit Sub Park to Kit Stores. (2) Accused No. 3 was  a party to the shifting of stores from Shed No. 48 to Shed No. 17 even before the appointment of the board of  itemization. (3)  Though  Lawrence stated that Avatarsing  expressed  his inability  to push the scheme on account of Capt.   Kapoor’s constant  vigilance and visits to Shed No. 17, Lawrence  had admitted  that his first contact with Avatarsing was in  the noon  of  18th  December.  (4) There  is  no  evidence  that Avatarsing  attended  the meeting at Major Barsay’s  on  the 18th. (5) Avatarsing loaded the truck for the first trip and also for the second trip, and in loading the second trip  he used  the usual laborers and two outside workers. (6)  After the truck was loaded, he asked Rambhan to take the truck  to D. 0. D. under instructions from the superior officers.  (7) The  words  "D. O. D." in Ex. 42, the duty  slip,  were  not entered  by Avatarsing.  The High Court held that  the  said facts  found on independent evidence did not  implicate  the said accused in the offence and                             241 they were all consistent with his innocence.  Though some of the  findings give rise to suspicion we cannot say that  the High  Court was wrong in holding that the said  facts  found did not corroborate the evidence of Lawrence in  implicating the  accused  in  the offence.  We,  therefore,  accept  the finding of the High Court in regard to accused Nos. 2 and 3. In the result both the appeals fail and are dismissed. Appeals dismissed.