iminal 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
MH Chhatrapati Ravindra Narain O C Mathur and J B Dadachanji for the appellant in Criminal Appeal No 2 of 1958
BK 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 section N Anand for respondent No 1 in Criminal Appeal No 81 of 1960
BS Gheba for respondent No 2 in Criminal Appeal No 81 of 1960
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 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 927 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 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
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
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 DOD 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 pm
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 915 am 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 am 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 DOD 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 and that one Godse was at the main gate
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 am 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
At about 1 pm 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 140 pm
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 section Kochhar when posted as Civilian Group Officer D U V and you accused No 3 Avatarsingh Seva Singh then working as Civilian Stores Keeper D U V and you accused No 4 W section 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 section 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 ie 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 34 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 section Kochbar Civilian Group Officer D U V and you accused No 3 Avatarsingh Seva Singh Civilian Store Keeper and you accused No 4 W section 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 section Kochhar and Avatarsingh Seva Singh who were public servants and thereby committed an offence under Section 51c punishable under section 52 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 23 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 Schedule A  appended herewith and this act 205 constitutes an offence under Section 51d of the Prevention of Corruption Act punishable under Section 52 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 45 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 section 120 B of the Indian Penal Code and section 52 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
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 section 51c and section 51d 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 section 109 of the Indian Penal Code for having abetted the commission of the offence of criminal misconduct under section 51c 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 section 109 of the Indian Penal Code read with section 51c 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 section 381 of the Indian Penal Code and that the charge under section 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 section 411 read with section 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 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 section 51c 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 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 section 69 of the 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 and the offences deemed to be committed against the  the argument proceeded was an unfailing clue for the true construction of the pro visions of the in that the offences under the first category were exclusively triable by court martial and the 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 section 126 of the is peremptory in its language namely that a criminal court shall not have jurisdiction to try an offence 27 210 defined under the  unless the conditions laid down therein were strictly complied with that is unless requisite notice is given to the officer referred to in section 125 of the Act
To appreciate the said argument it is necessary to scrutinize the provisions of the in some detail
Section 2 describes the different categories of army personnel who are subject to the 
Section 3ii defines civil offence to mean an offence which is triable by a criminal court a 3vii defines court martial to mean a court martial held under this Act section 3viii defines criminal court to mean a court of ordinary criminal justice in any part of India other than the State of Jammu and Kashmir section 3xvii defines offence to mean any act or omission punishable under this Act and includes a civil offence and section 3xxv 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 sections 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  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 section 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 section 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 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  such as those created by sections 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 section 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 1261 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 
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 section 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 section 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 jurisdiction having regard to the exigencies of the situation
What is more section 127 of the provides for successive trials by court martial and by criminal court in respect of the same offence
Under sub section
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 section
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 section 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 section 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 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 section 52 of the 
Though the offence of conspiracy does not fall under section 52 of the Act it being a civil offence shall be deemed to be an offence against the Act by the force of section 69 of the Act
With the result that 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 sections 125 and 126 are clearly intended to apply
But the designated officer in section 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 section 126 of the Act for the second part of section 1261 which enables the criminal court to issue a notice to the officer designated in section 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 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 section 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 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 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 section 549 of the Code of Criminal Procedure
Under that section The Central Government may make rules consistent with this Code and the    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 constituted under the Criminal Law Amendment Act 1952 is a magistrate within the meaning of that rule
A special judge is appointed under section 61 of the Criminal Law Amendment Act to try the offences specified therein
Section 62 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 81 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 section
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 section 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 section 81 of the Act puts him on par with a magistrate and therefore r 3 of the rules framed under section 549 which applies to a magistrate equally applies to a special judge
This argument overlooks the limited purpose for which section 81 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 section 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 81 of the Criminal Law Amendment Act maintains a clear distinction between 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 is comprehended by the words any other law
The offences with which we are now concerned are certainly offences specified in sub section
1 of section 6 of the Criminal Law Amendment Act
The non obstante clause in section 7 clearly confers 218 jurisdiction to try persons committing the said offences on a special judge
But it is contended that the is a special Act and therefore section 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 section 7 confers an exclusive jurisdiction on a special judge only in regard to offences specified in sub section
1 of section 6 and that the said subsection does not comprise offences under section 52 of the 
There is a fallacy underlying this argument
Certain acts committed or omissions made by a person constitute offences under section 61 of the Criminal Law Amendment Act 1952
Under section 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 section 52 of the 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 section 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 section 6 of the Criminal Law Amendment Act 1952
This objection is clearly answered by section 7b of the said 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
 It is then argued that the prosecution has failed to establish that the Central Government accorded sanction to prosecute the appellant under section 61 of the Prevention of Corruption Act
Under section 61a 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 61a 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 section Kochhar in respect of the aforesaid offences and other cognate offences punishable under other provisions of law
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
PW 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 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 article 77 of the Constitution may be noticed
Under el
1 of article 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 article 166 were subject to judicial scrutiny by this Court
The validity of an order of detention made by the Bombay Government under section 3 of the  was considered in The State of Bombay vs 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 article 1661 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 vs The State of Bombay 2 an 1  2  222 order made under the  was questioned on the ground that it did not comply with the provisions of article 1661 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 vs 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 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 vs The State of Travancore Cochin 2
There the show cause notice issued under article 311 of the Constitution was impugned on the ground that it was contrary to the provisions of article 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 article 166 of the Constitution
The latest decision on the point is that in Ghaio Mall  Sons vs The State of Delhi1
There the question was whether the com munication issued by the Under Secretary Finance Government of Delhi State had complied with the provisions of article 166 of the Constitution
This Court held that it did not comply with the provisions of 1 2 223 article 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 article 166 of the Constitution
Shortly stated the legal position is this article 1661 is only directory
Though an impugned order was not issued in strict compliance with the provisions of article 1661 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 article 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 article 772 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 1  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 section 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 bin 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 section 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 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 vs The State of Delhi 1 held that section 54 and proviso to section 3 of the Prevention of Corruption Act 1947 and the corresponding section 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  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 section 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 section 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 section 6 of the  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 section 3 thereof
But section 6 of that Act says that nothing contained in section 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 131949 and it was stated therein  I am directed to state that this Government re affirms with reference to section 6 of the  the consent given for an indefinite period under its letter 227 No 50424 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 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  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 section 6 of the  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 section 61 of the Criminal Law Amendment Act 1952
This argument ignores section 72b 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 section 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 section 51c and 51d 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 section 109 of the Indian Penal Code read with cls
c and d of section 51 of the Prevention of Corruption Act
But on the merits they convicted accused No 1 under section 52 of the Prevention of Corruption Act instead of under the said section read with section 34 of the Indian Penal Code and they convicted accused No 4 under section 109 of the Indian Penal Code read with section 51c and d of the Prevention of Corruption Act instead of under section 52 of the said 229 Act read with section 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 section 52 of the Prevention of Corruption Act instead of under the said section read with section 34 of the Indian Penal Code
To such a situation section 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 vs 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 section 52 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 section 52 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 section 52 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 11955 2 SCR 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 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 article 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 vs 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 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  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 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 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 vs 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 1 236 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 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 DOD 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 DOD 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 Rambhan and Wagh shows that at about 1 10 pm 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 exhibit 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 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 exhibit 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


Summary:
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 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 section 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 section 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 section 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 section 61 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 section 61 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 article 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 vs Purushottam jog Naik 1952 SCR 674 Dattareya Moreshwar Pangarkar vs The State of Bombay   J K Gas Plant Manufacturing Co Ltd vs The King Emperor  P Joseph John vs The State of Travancore Cochin  and Ghaio Mall  Sons vs The State of Delhi 1959 SCR 1424 applied
Held further that though the conditions of investigation by the Inspector of Police as laid down in section 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 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
HN Rishbud  Inder Singh vs State of Delhi   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 vs The State of Punjab   explained