# SJat~ of Madras Sarkar], I96I April a4. Major E.G. Barsay v. Stat1 of Bombay

- **Citation:** [1962] 2 S.C.R. 195
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Criminal Appeal No. 2 of 1958
- **Bench:** K. Subba Rao, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sjat-of-madras-sarkar-i96i-april-a4-major-e-g-barsay-v-stat1-of-bombay-2246
- **Pages:** 47

## Headnote

Criminal Trial-Criminal Misconduct-Army Officer tried by
Special Judge-Jurisdiction-Sanction for prosecution given by
Deputy Secretary-Validity-Investigation by Inspector of Police,
Special Police Establishment, Delhi-Legality-Conspiracy-Pub·
lie Servants charged with others-Legality of charge-ApproverCorroboration-Prevention of Corruption Act, r947 (II of r947),
SS. 5A, 5(2), 6(r)(a)-Army Act, r950 (46 of I950), SS. 52, 70, I25,
r27-Criminal Law (Amendment) Act, r952 (46 of r952), ss. 6, 7,
8, 9-Constitution of India, Art. 77.
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 Cen·
tral 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 cou.ld 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
P. ]. Irani
v.
SJat~ of Madras
Sarkar],
I96I
April a4.
Major
E.G. Barsay
v.
Stat1 of Bombay
196
SUPREME COURT REPORTS
[1962]
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 j11risdiction to try the
appellant for the offences charged. The Army Act does not bar
the jurisdiction of criminal courts in respect of acts or omissions
which are punishable under the Army Act as well as under any
other law in force. The offences charged were triable both by
the Special Judge and by a Court Martial. In such cases s. 125
of the Army Act provides that if the designated officer decides
that the proceedings.should be before a Court Martial he may
direct the accused to be detained in military custody. But in
the present case the designated officer had not exercised his
discretion and the Army Act was not in the way of the Special
Judge exercising his jurisdiction. Rule 3 made under s. 549,
Code of Criminal Procedure for persons subject to military law
was applicable only to magistrates and not to a Special Judge
who is not a magistrate within the meaning of r. 3. Besides,
s. 7 of the Criminal Law (Amendment) Act, 1952, provides that
notwithstanding anything contained in the Code of Criminal Procedure or in "any other law" the offences specified in
s. 6(1) shall be triable by Special Judges only. The words "any
other 12w" included the Army Act also. The offences for which
the appellant was convicted were offences specified in s. 6(1)
and were exclusively triable by a Special Judge.
Held, further, that the sanction for the prosecution of the
appellant was a good and valid S2nction. Article ?7 of the Constitution which provides that all orders of the Central Government shall be expressed to be in the name of the President is
only directory and not mandatory. Where an order was not
issued in strict compliance with the provisions of Art. 77 it
could be established by extraneous evidence that the order was
made by the appropr

## Text

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2 $.C.R. SUPREME COURT REPORTS
195
1952, was a competent and legal order and no exception can be taken to it.
We would, therefore, allow the appeal and set aside
the order of the High Court. The second respondent should pay the costs of the other parties throughout.
BY COURT. In accordance with the majority Judgment, the appeal is dismissed with costs to the contesting second respondent.
MAJOR E. G. BARS A Y
v.
THE STATE OF BOMBAY
(K. SUBBA RAO and RAGHUBAR DAYAL, JJ.)
Criminal Trial-Criminal Misconduct-Army Officer tried by
Special Judge-Jurisdiction-Sanction for prosecution given by
Deputy Secretary-Validity-Investigation by Inspector of Police,
Special Police Establishment, Delhi-Legality-Conspiracy-Pub·
lie Servants charged with others-Legality of charge-ApproverCorroboration-Prevention of Corruption Act, r947 (II of r947),
SS. 5A, 5(2), 6(r)(a)-Army Act, r950 (46 of I950), SS. 52, 70, I25,
r27-Criminal Law (Amendment) Act, r952 (46 of r952), ss. 6, 7,
8, 9-Constitution of India, Art. 77.
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 Cen·
tral 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 cou.ld 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
P. ]. Irani
v.
SJat~ of Madras
Sarkar],
I96I
April a4.
Major
E.G. Barsay
v.
Stat1 of Bombay
196
SUPREME COURT REPORTS
[1962]
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 j11risdiction to try the
appellant for the offences charged. The Army Act does not bar
the jurisdiction of criminal courts in respect of acts or omissions
which are punishable under the Army Act as well as under any
other law in force. The offences charged were triable both by
the Special Judge and by a Court Martial. In such cases s. 125
of the Army Act provides that if the designated officer decides
that the proceedings.should be before a Court Martial he may
direct the accused to be detained in military custody. But in
the present case the designated officer had not exercised his
discretion and the Army Act was not in the way of the Special
Judge exercising his jurisdiction. Rule 3 made under s. 549,
Code of Criminal Procedure for persons subject to military law
was applicable only to magistrates and not to a Special Judge
who is not a magistrate within the meaning of r. 3. Besides,
s. 7 of the Criminal Law (Amendment) Act, 1952, provides that
notwithstanding anything contained in the Code of Criminal Procedure or in "any other law" the offences specified in
s. 6(1) shall be triable by Special Judges only. The words "any
other 12w" included the Army Act also. The offences for which
the appellant was convicted were offences specified in s. 6(1)
and were exclusively triable by a Special Judge.
Held, further, that the sanction for the prosecution of the
appellant was a good and valid S2nction. Article ?7 of the Constitution which provides that all orders of the Central Government shall be expressed to be in the name of the President is
only directory and not mandatory. Where an order was not
issued in strict compliance with the provisions of Art. 77 it
could be established by extraneous evidence that the order was
made by the appropriate authority. In the present case there
was uncontroverted evidence which established that the order
of sanction was made by the Deputy Secretary on· behalf of the
Central Government in exercise of the power conferred on him
under the rules delegating such power to him.
The State of Bombay v. Purushottam Jog Naik, [1952) S.C.R. 674,
Dattatreya Moreshwar Pangarkar v. The Slate of Bombay, [1952)
S.C.R. 612, J. K. Gas Plant Manufacturing Co., Ltd. v. The King
Emperor, [1947) F.C.R. 141, P. Joseph John v. The State of
Travancore-Cochin, [1955) l S.C.R. lOII and Ghaio Mall & Sons
v. The State of Delhi, [1959) S.C.R. 1424, applied.
Held, further, that though the conditions of investigation
by the Inspector of Police as laid down in s. 5A, Prevention of
Corruption Act were not complied with the trial was not vitiated
2 S.C.R. SUPREME COURT REPORTS
197
by the illegality as it did not result in any miscarriage of jusr96r
tice. The powers and jurisdiction of members of the Delhi
Special Police Establishment for investigation of offences in the
Major
State of Bombay had been duly extended by a notification of the
E. G. Barsay
Government of Bombay dated August r3, r949, giving a general
v.
consent in respect of all the members of the establishment. It State of Bombay
was not necessary that the consent be given to every individual
member of the Establishment.
H. N. Rishbud & lnder Singh v. State of Delhi, [r955] I S.C.R.
n50, 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 con·
spiracy 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 evidencr of L
were not accepted, his version was broadly accepted in regard to
the conspiracy and the manner in which articles were smuggled
out.
Sarwan Singh v. The State. of Punjab, [1957] S.C.R. 953,
explained.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 2 of 1958.
Appeal from the judgment and order dated July
27, 1957, of the Bombay High Court in Criminal
Appeal No .. 254 of 1957.
WITH
Criminal Appeal No. 81of1960.
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.
JJf. H. Chhatrapati, Ravindra Narain, 0. C. Mathur
and J. B. Dadachanji, for the appellant (in Criminal
Appeal No. 2 of 1958).
B. K. Khanna and D. Gupta, for the respondent
in Criminal Appeal 2 of 1958) and appellant (in Criminal Appeal No. 81 of 1960).
Major
E.G. Barsay
v.
Slate of Bombay
Subba Rao ],
198
SUPREME COURT REPORTS
[1962)
Ram Lal Anand and S. N. Anand, for respondent
No. I (in Criminal Appeal No. 81 of 1960).
R. S. Gheba, for respondent No. 2 (in Criminal
Appeal No. 81of1960).
1961. April 24. The Judgment of the Court was
delivered by
SuBBA RAO, J.-These two appeals-one filed by
accused No. 1 by certificate and the other filed by the
State of Maharashtra by special leave-against the
judgment of the High Court of Bombay confirming
the conviction and sentence of accused No. 1 and
setting aside the convictions and sentences of accused
Nos. 2 and 3.
The prosecution case may be briefly stated. There
was a depot called the Dehu Vehicle Depot in which
military stores were kept. In the year 1944 Col.
Rao, the Chief Ordnance Officer, was in charge of the
Depot; Col. Sindhi, the Station Commandant, and
Brig. Wilson, the Brigadier, Ordnance, Southern Command, were his superior officers. Accused No. 1,
Major Barsay, was second in command in the Depot
and was in charge of stores section; he was subordinate 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.
Avatarsingh,
accused No. 3, who was working in the Unfit Sub
Park, was transferred to the Kit Stores by accused
No. 1 during the absence on leave of Col. Rao. Accused No. 4, Saighal, was an Ex-Col. and was at one
time the Station Commandant of the Depot; after
retirement he had been staying in a bungalow at a
short distance from mile No. 92/7 on the Poona-Bombay Road. Accused No. 5, Ramchand Gangwani, was
a refugee from Sind and he was running a hotel at
Lonavala.
Accused No. 6, Devichand, and one
2 S.C.R. SUPREME COURT REPORTS
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 therefore 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 teμiporary duty for ten days from
November 20, 1954 to November 30, 1954. On the
ilight of December l; 1954, there was a theft of various
articles'ih the Unfit Park of the Depot. Accused No. 1
ii~lled in. Lawrence, the acting Security Officer,
ost.ensibly to discuss with him certain matters regarding the theft. · During the course of the conversation
accused No. f suggested to Lawrence that valuable
stores in Shed No. 48 might be smuggled out and the
large amounts expected to be realized from their sa!'e
might be shared between the conspirators, including
Major
E.G. Barsay
v.
State of Bombay
Subba Rao ].
200
SUPRF.ME COURT REPORTS
[1962]
z96z
Lawrence. Presumably to put him in a suitable frame
of mind to accept the suggestion to become a conMafor
E.G. Barsay
spirator, he also hinted to Lawrence that Col. Rao
v.
suspected that he (Lawrence) had a hand in the theft.
s1a1e of Bombay The scheme outlined by accused No. 1 was confirmed
by accused No. 2 a few days later. According to the
Subba Rao J. 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. Maj. Barsay agreed to get a driver pf
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 purpoee 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
2 S.C.R. SUPREME COURT REPORTS
201
conspirators were not interested and the second trip
was to be of valuable stores which were to be smuggled out of the gate. Maj. Barsay also undertook to
call Maj. Nag to his office on December 20, 1954 and
issue orders in the presence of Maj. Nag to Lawrence
to go to Dehu Ordnance Depot (D.O.D.) and get the
fire hoses which were sent there for repairs. Kochhar
agreed to prepare a bogus voucher on Monday (December 20, 1954) morning, and Lawrence undertook to
provide a bogus gate-pass. Accused No. 4, Saighal,
agreed to keep a lorry and some labourers present
near his bungalow for transhipping 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 transhipped.
Thereafter, after taking his dinner, Lawrence went to
the Depot at 9 p.m. The Orderly Officer at the Depot,
one Shrinivasan, informed Lawrence that Jamadar
Kundanlal, who was to have been on duty at the
main gate on December 20, 1954, was sick a11d 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 J amadar Kundanlal and tried
to persuade him to attend to his duty at the main
gate on December 20, 1954.
On December 20, 1954, at about 9.15 a.m. Maj.
Barsay called Havaldar Pillay to his office and asked
him to allot a new vehicle to the Kit Stores and to
detail driver Ramban on that vehicle.
Havaldar
Pi!lay did accordingly. At about 10 a.m., Maj. Barsay
called Maj. Nag and Lawrence to his office and, in
the presence of Maj. Nag, he issued orders to Lawrence to go to Dehn Ordnance Depot (D.O.D.) personally and get the fire hoses.
After Maj. Nag left the
place, Lawrence told Maj. Barsay that Jamadar
Kundanlal had reported himself to be sick and had
taken leave of absence and that one Godse was at tho
main gate.
~aj. Barsay suggested to Lawrence that
,6
zgoi.
Major
E.G. Barsay
v.
Seate of Bombay
Subba Rao ].
Major
E.G. Barsay
v.
State of Botnbay
Subba Rao ].
202
SUPREME COURT REPORTS
[1962]
Jamadar Jogendrasingh may be· put at the main
gate in place of Godse, and he informed him that he
had fixed upon Ramban as the driver of the vehicle
in which the stores were to be smuggled out. At
about 11 a.m. Lawrence met Maj. Barsay and Kochhar near Shed No. 48 and was told by Maj. Barsay
that the scheme was to proceed according to schedule.
Kochhar and Lawrence then went to Shed No. 17
where Avatarsingh, accused No. 3, was present.
Kochhar told Avatarsingh that he had not prepared
any voucher as it was not necessary. Lawrence had
brought an old gate.pass with him and he handed
over the same to Avatarsingh. Truck No. D. D. 5963
was, in the first instance, loaded with ordinary stores
and was sent to Shed No. 26. In the meanwhile,
Lawrence went to the Depot and asked Godse to take
over at the Unfit Sub Park gate and he ordered Jamadar Jogendrasingh to take over from Godse at the
main gate.
As Jamadar Jogendrasingh refused to
accept the gate-pass to be produced by the driver and
pass out the vehicle without making an entry regarding the same in the "Vehicles In and Out Register",
Lawrence gave him a written order to that .effect with
instructions not to show or hand over that written
order to anybody except himself on his return or to
Maj. Nag. At about 1 p.m. Maj. Barsay told Lawrence
that he had become apprehensive of the scheme. succeeding, as he had seen the Station Commandant's
car near the Barrack Office and, therefore, he told him
not to take out the vehicle till that car had gone out.
Lawrence agreed and went to Shed No. f7 where
Avatarsingh was present, and Avatarsingh got the
truck loaded and handed over the bogus gate-pass and
the duty-slip of the vehicle to Ramban, and he also
asked Lawrence to get into the truck there itself
instead of near the main gate as per the plan. After
Lawrence got into the truck, it proceeded towards the
main gate at about 1.40 p.m".
At the main gate,
Ramban gav~ the duty-slip of the vehicle and also
the bogus gate-pass t.o· Jamadar Jogendrasingh and
the latter told Lawrence that Maj. Barsay had left a
message for him "not to do it on that day". Lawrence,
I
2 S.C.R. SUPREME COURT REPORTS
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. l Major E.G. Barsay,
when officiating as Chief Ordnance Officer, D. U. V.
and you accused No. 2, H. S. Kochhar, when posted as Civilian Group Officer, D. U. V., and you
accused No. 3, Avatarsingh Seva Singh, then working as Civilian St.ores Keeper, D. U. V., and you
accused No. 4, W'. S. Saighal, released Lt. Col., and
you, accused No. 5, Ramchand Pahlajrai Gangawani, and you accused No. 6, Deviprasad Ramchand
Gangawani and the absconding accused Khemchand
between about October 1954 and December 1954
were parties to a criminal conspiracy at Dehu Road
area by agreeing to do certain illegal acts to wit:
Firstly, dishonestly or fraudulently misappropriate
or otherwise convert to your own use the Military
Stores lying in the Vehicle Depot, Dehu Road and
which was entrusted or was in-charge of Major
E. G. Barsay, H. S. Kochhar, and Avatarsingh Seva
Singh and which was also under their control, as
public servants; Secondly, to obtain by corrupt or
illegal means for yourselves or for any other persons
il1ajor
E.G. Barsay
v,
State of Bombay
Sitbba Hao ],
t961
Majol'
E.G. Barsay
v.
State of Bombay
Subba Rao ].
204
SUPREME COURT REPORTS
[1962]
such stores which amounts to abusing their position
as public servants i.e., the co-conspirators; Thirdly,
to commit illegal acts of committing theft or receiv·
ing of stolen property and the above said illegal
acts were done in pursuance of the said agreement
and that you have thereby committed an offence
punishable under Section 120-B of the Indian Penal
Code and within my cognizance.
(2) That you accused Nos. 1, 2, 3, 4, 5, 6 and another (Khemchand Ramchand Gangawani), between
about October 1954 and December 1954 in pursuance of the abovesaid conspiracy jointly and in furtherance of the common intention of all of you, you
accused No. 1, Major Barsay, Officiating Chief Ord.
nance Officer, and you accused No. 2, H. S. Kochhar, Civilian Group Officer, D. U. V., and you
accused No. 3, A vatarsingh Seva Singh, Civilian
Store Keeper, and you accused No. 4, W. S. Saighal,
released Lt. Col., and you accused No. 5, Ramchand
Pahalajrai Gangawani, and you accused No. 6,
Deviprasad Ramchand Gangawani, did on 20Lh of
December 1954, dishonestly or fraudulently misappropriate with a common intention or convert
for your own use Government property in the form
of Military Stores described in detail in Schedule
'A' appended herewith, entrusted to or under the
control of the first three accused, namely, Major
E.G. Barsay, H. S. Kochhar and Avatarsingh Seva
Singh, who were public servants and thereby committed an offence under Section 5(l)(c), punishable
under section 5(2), of the Prevention of Corruption
Act, read with Section 34 of the Indian Penal Code
and within my cognizance.
(3) That you accused Nos. 1, 2, 3, 4, 5, 6 and the
absconding accused Khemchand Ramchand Gangawani, in pursuance of the abovesaid conspiracy,
jointly and in furtherance of the common intention
of all of you, did by corrupt or illegal means by
abusing their position as public servants, obtained
for yourselves or for any other persons, the valuable
things in the form of Military Stores detailed out
in Schedule 'A' appended herewith, and this act
2 S.C.R. SUPREME COURT REPORTS
205
constitutes an offence under Section 5(l)(d) of the
Prevention of Corruption Act, punishable under
Section 5(2) of the said Act read with Section 34 of
the Indian Penal Code and within my cognizance.
(4) That you accused Nos. l, 2, 3, 4, 5, 6, along
with the absconding accused Khemchand Ramchand Gangawani, did on 20th of December 1954,
in pursuance of the abovesaid conspiracy jointly
and in furtherance of the common intention of all
of you, d,ishonestly or fraudulently remove the
Military stores described in detail in Schedule 'A'
appended herewith from the Dehn 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 prose cu ti on 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 corrobo.
rat.ion before acceptance. In the words of the learned Special Judge, "Shri Lawrence's evidence can,
Major
E.G. Barsay
v.
State of Bombay
Subba Rao ].
Afajor
E.G. Barsay
v.
State of Bo,nbay
Subba Rao j.
206
SUPREME COURT REPORTS
[1962]
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 thao accused Nos. 1 to 6 were guilty of the
principal offence charged against them and convicted
all of them under s. 120-B of the Indian Penal Code
and s. 5(2) of the Prevention of Corruption Act, 1947,
read with s. 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 n.ccused
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, the High Court accepted the plea that
accused Nos. 4, 5 and 6 could not be charged with
having committed an offence under s. 5(l)(c) and
s. 5(l)(d) of the Prevention of Corruption Act, as they
were not public servants; but they held that it would
be proper to frame a charge against them under s. 109
of the Indian Penal Code for having abetted the commission of the offence of criminal misconduct under
s. 5(l)(c) and (d) of the Prevention of Corruption Act,
committed by accused Nos. l to 3. As the High Court
held that they were not prejudiced by the irregularity
of the charge, it altered the charge to one under s. 109
of the Indian Penal Code, read withs. 5(l)(c) and (d)
of the Prevention of Corruption Act.
As regards the
'
'
2 S.C.R. SUPREME COURT REPORTS
207
last head of the charge, it held that all the accused
could not be charged with having committed an
offence under s. 381 of the Indian Penal Code and
that the charge under s. 411 of the Indian Penal Code
would also appear to be improper so far as accused
Nos. 1 to 3 were concerned; but it held that so far as
accused Nos. 4, 5 and 6 were concerned, the charge
under s. 411, read with s. 34, Indian Penal Code,
would be quite proper.
Before the High Court, learned counsel appearing
on behalf of the accused and the special counsel,
Mr. Amin, appearing on behalf of the State, asked
the Court to proceed to examine the evidence of
Lawrence on the basis that he was a decoy and a trap
witness. The High Court agreed with the learned
Special Judge that the evidence of Lawrence would
have to be treated on par with that of a trap witness
and that it would be inadvisable to rely upon the said
evidence without independent corroboration.
It
also pointed out that the corroboration required was
not a corroboration of every particular in respect of
which the accomplice or the approver gaye his
evidence, bnt 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 corrobora·
ted 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 conspira.cy 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 conclusion:
Major
E.G. Barsay
v.
State of Bonibay
Subba Rao j.
r96r
Major
E.G. lJarsay
v.
State of Bombay
Subba Rao].
208
SUPREME COURT REPORTS
[1962]
"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 s. 5(l)(c) and (d) of the
Prevention of Corruption Act, 1947. As regards
accused No. 3, they were of the opinion that the case
against him was not established beyond reasonable
doubt and that he could not be held to be guilty of
criminal conspiracy as well as criminal misconduct.
As regards accused No. 4, they accepted the finding
of the learned Special Judge, as independent acceptable evidence corroborated the evidence of Lawrence
in respect of this accused. So far as accused Nos. 5
and 6 were concerned, they found the evidence to be
very weak and therefore set aside the convictions and
sentences passed against them. In the result, they
confirmed the convictions and sentences of accused
Nos. 1 and 4, and set aside those of accused Nos. 2,
3, 5 and 6.
It appears that accused No. 4 died after the appeal
was disposed of by the High Court. Accused No. 1
preferred Criminal Appeal No. 2 of 1958 against his
conviction and sentence passed by the High Court and
the State preferred Criminal Appeal No. 81 of 1960
challenging the correctness of the order of acquittal
made in respect of accused Nos. 2 and 3.
We shall first take the appeal filed by accused No. 1.
(
2 S.O.R. SUPltEME COURT REPOltTS
209
Lea.rued counsel for the appellant raised before us
all the technical points which he unsuccessfully
raised before the Special Judge as well as before the
High Court. At the outset we shall deal with the said
contentions before considering the arguments advanced
on the merits of the case.
The first contention of learned counsel for the
appellant is that the Special Judge, Poona, had no
jurisdiction to take cognizance of the offences with
which the accused were charged and that they should
have been tried only by a court martial under the
Army Act.
The argument of learned counsel for the appellant
may be briefly stated thus: The Army Act, 1950 (46
of 1950) created new offences. Section 52 of the said
Act created offences with which accused in the present case were charged, and provided a new machinery, namely, a. court martial, to try persons committing the ea.id offences. Therefore by necessary implication the trial of the said offences was excluded
from the jurisdiction of ordinary criminal courts. This
argument was sought to be reinforced by the provisions of s. 69 of the Army Act whereunder, it was
said, by a. fiction, offences committed by army personnel which were triable by ordinary courts were to
be deemed to be offences committed against the said
Act. That difference between offences against the
Army Act and the offences deemed to be committed
against the Army Act, the argument proceeded, was
an unfailing clue for the true construction of the provisions of the Army Act 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 SllCOnd category of
offences.
Assuming that the said contention was
wrong, it was argued, s. 126 of the Army Act is peremptory in its language, namely, that a criminal
court shall not have jurisdiction to try an offence
•7
196z
kfajor
E.G. Burs4y
v.
State of Bombt1y
Subba Rao J.
196r
Major
E.G. Barsay
v.
State of Bombay
Subba Rao ].
210
SUPREME COURT REPORTS
[1962]
defined under the Army Act, unless the conditions laid
down therein were strictly complied with, that is,
unless requisite notice is given to the officer referred
to in s. 125 of the Act.
To appreciate the said argument it is necessary to
scrutinize the provisions of the Army Act in some
detail. Section 2 describes the different categories of
army personnel who are subject to the Army Act.
Section 3(ii) defines "civil offence" to mean "an offence
which is triable by a criminal court"; s. 3(vii) defines
"court-martial" to mean "a court-martial held under
this Act"; s. 3(viii) defines "criminal court" to mean
"a court of ordinary criminal justice in any part of
India, other than the State of Jammu and Kashmir";
s. 3(xvii) defines "offence" to mean "any act or omission punishable under this Act and includes a civil
offence"; and s. 3(xxv) declares that "all words and
expressions used but not defined in this Act and
defined in the Indian Penal Code shall be deemed to
have the meanings assigned to them in that Code."
Chapter VI is comprised of ss. 34 to 70. The heading
of the Chapter is "Offences". As we have already
noticed, the word "offence" is defined to mean not
only any act or omission punishable under the Army
Act,, but also a civil offence. Sections 34 to 68 define
the offences against the Act triable by court-martial
and also give the punishments for the said offences.
Section 69 says that any person subject to the Act
who at any place in or beyond India commits any
civil offence shall be deemed to be guilty of an offence
against the Act and, if charged therewith under this
section, shall be liable to be tried by a court-martial
and, on conviction, be punishable as provided for
the offence under any law in force in India or such
less punishment as is in the Act mentioned. Under
S. 70,
"A person subject to this Act who commits an
offence of murder against a person not subject to
military, naval or air force law, or of culpable
homicide not amounting to murder against such a
person or of rape in relation to such a person, shall
not be deemed to be guilty of an offence against this
Act and shall not be tried by a court-martial."
\,.,
2 S.C.R. SUPREME COURT REPORTS
211
There are three exceptions to this section with
which we are not concerned now. Shortly stated,
under this Chapter there are three categories of offences, namely, (1) offences committed by a person
subject to the Act triable by a court-martial in respect whereof specific punishments have been assigned;
(2) civil offences committed by the said person at any
place in or beyond India, but deemed to be offences
committed under the Act and, if charged under s. 69
of the Act, triable by a court-martial; and (3) offences
of murder and culpable homicide not amounting to
murder or rape committed by a person subject to the
Act against a person not subject to the military law.
Subject to a few exceptions, they are not triable by
court-martial, but are triable only by ordinary criminal courts. The said categorisation of offences and
tribunals necessarily bring about a conflict of jurisdiction. Where an offence is for the first time created
by the Army Act, such as those created by ss. 34, 35,
36, 37 etc., it would be exclusively triable by a courtmartial; but where a civil offence is also an offence
under the Act or deemed to be an offence under t.he
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 ss. 125 and 126 of the Act.
Under s. 125,
"When a criminal court and a court.martial have
each jurisdiction in respect of an offence, it shall be
in the discretion of the officer commanding the
army, army corps, division or independent brigade
in which the accused person is serving or such other
officer as may be prescribed to decide before which
court the proceedings shall be instituted, and, if
that officer decides that they should be instituted
before a court-martial, to direct that the accused
person shall be detained in military custody."
Under s. 126(1) of the Act,
"When a criminal court having jurisdiction is of
opinion that proceedings shall be instituted before
itself in. respect of any alleged offence, it may, by
written notice, require the officer referred to in
z96I
Major
E.G. Barsay
v.
State of Bombay
Subba Rao ].
Major
E.G. Barsay
v.
Slate of Bvmbay
Subba Rao ].
212
SUPREME COURT REPORTS
[1962)
section 125 at his option, either to deliver over the
offender to the nearest magistrate to be proceeded
against according to Jaw, 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 forth with refer the question as
to the court before which the proceedings are to be
instituted for the determination of the Central
Government, whose order upon such reference shall
be final."
Section 125 presupposes that in respect of an offence
both a criminal court as well as a court-martial have
each concurrent jurisdiction. Such a situation can
arise in a case of an act or omission punishable both
under the Army Act as well as under any law in force
in India. It may also arise in the case of an offence
deemed to be an offence under the Act. Under the
scheme of the said two provisions, in the first instance,
it is left to the discretion of the officer mentioned in
s. 125 to decide before which court the proceedings
shall be instituted, and, if the officer decides that they
should be instituted before a court-martial, the
accused person is to be detained in military custody;
but if a criminal court is of opinion that the said
offence shall be tried before itself, he may issue the
requisite notice under s. 126 either to deliver over the
offender to the nearest magistrate or to postpone the
proceedings pending a reference to the Central Government. On receipt of the said requisition, the officer
may either deliver over the offender to the said court
or refer the question of proper court for the determi,
nation 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, s.