Major E. G. Barsay Vs. The State of
Bombay [1961] INSC 182 (24 April 1961)
SUBBARAO, K.
DAYAL, RAGHUBAR
CITATION: 1961 AIR 1762 1962 SCR (2) 195
CITATOR INFO :
R 1963 SC1850 (59) R 1966 SC1273 (20) R 1968
SC1323 (7) RF 1971 SC 500 (17) RF 1971 SC1120 (20) R 1977 SC2433 (9) D 1979
SC1255 (8) RF 1982 SC1413 (39) R 1986 SC1655 (7) RF 1992 SC 604 (125)
ACT:
Criminal Trial-Criminal Misconduct-Army
Officer tried by Special Judge-jurisdiction-Sanction for Prosecution given by
Deputy Secretary-Validity-Investigation by Inspector of Police, Special Police
Establishment, Delhi-LegalityConspiracy-Public Servants charged with
others-Legality of charge-Approver-Corroboration-Prevention of Corruption Act ,
1947 (11 of 1947). ss. 5A, 5(2), 6(r)(a)-Army Act, 1950 (46 of 1950), ss. 52,
70, 125, 127-Criminal Law (Amendment) Act, 1952 (46 of 1952), ss. 6, 7, 8,
9-Constitution of India, Art. 77.
HEADNOTE:
The appellant and five other persons, three
of Them not being public servants, were charged with criminal conspiracy to
dishonestly or fraudulently misappropriate or convert to their own use military
stores and with dishonestly and fraudulently misappropriating the same.
Sanction for prosecution of the accused was given by a Deputy Secretary on
behalf of the Central Government. The accused were tried by a Special judge.
The main evidence led was that of one L, a security officer., who had been
asked to join the conspiracy and who had joined it with a view to have the
offenders apprehended. The Special judge convicted all the accused persons. On
appeal the High Court confirmed the conviction of the appellant and one other
accused now dead and acquitted the other four accused persons holding that the
evidence of L was corroborated in material particulars in respect of the
appellant and one other accused only. The appellant contended:(i) that the
appellant who was subject to the Army Act could only be tried by a Court
Martial and the Special judge had no jurisdiction to try him, (ii) that the
sanction to prosecute was void as it was not expressed to be 196 made in the
name of the President, (iii) that the investigation by the Inspector of Police,
was illegal, (iv) that there could be no legal charge of conspiracy between
accused who were public servants and accused who were not, and (v) that L was a
wholly unreliable witness whose testimony ought to have been rejected totally
and no question of its corroboration arose.
Held, that the Special judge had jurisdiction
to try the appellant for the offences charged. The Army Act does not bar the
jurisdiction of criminal courts in respect of acts or omissions which are
punishable under the Army Act as well as under any other law in force. The
offences charged were triable both by the Special judge and by a Court Martial.
In such cases s. 125 of the Army Act provides
that if the designated officer decides that the proceedings should be before a
Court Martial he may direct the accused to be detained in military custody. But
in the present case the designated officer bad not exercised his discretion and
the Army Act was not in the way of the Special judge exercising his
jurisdiction. Rule 3 made under s. 549, Code of Criminal Procedure for persons
subject to military law was applicable only to magistrates and not to a Special
judge who is not a magistrate within the meaning of r. 3. Besides, s. 7 of the
Criminal Law (Amendment) Act, 952, provides that notwithstanding anything
contained in the Code of Criminal Procedure or in "any other law" the
offences specified in s.
6(1) shall be triable by Special judges only.
The words "any other law" included the Army Act also. The offences
for which the appellant was convicted were offences specified in s. 6(1) and
were exclusively triable by a Special judge.
Held, further, that the sanction for the
prosecution of the appellant was a good and valid sanction. Article 77 of the
Constitution which provides that all orders of the Central Government shall be
expressed to be in the name of the President is only directory and not
mandatory. Where an order was not issued in strict compliance with the
provisions of Art. 77 it could be established by extraneous evidence that the
order was made by the appropriate authority. In the present case there was
uncontroverted evidence which established that the order of sanction was made
by the Deputy Secretary on behalf of the Central Government in exercise of the
power conferred on him under the rules delegating such power to him.
The State of Bombay v. Purushottam jog Naik,
[1952] S.C.R.
674, Dattareya Moreshwar Pangarkar v. The
State of Bombay, [1952] S.C.R. 612, J. K. Gas Plant Manufacturing Co., Ltd.
v. The King Emperor, [1947] F.C.R. 141, P.
Joseph John v. The State of Travancore-Cochin, [1955] 1 S.C.R. 1011 and Ghaio
Mall & Sons v. The State of Delhi, [1959] S.C.R.
1424, applied.
Held, further, that though the conditions of
investigation by the Inspector of Police as laid down in S. 5A, Prevention of
Corruption Act were not complied with the trial. was not vitiated 197 by the
illegality as it did not result in any miscarriage of justice. The powers and
jurisdiction of members of the Delhi Special Police Establishment for
investigation of offences in the State of Bombay had been duly extended by a
notification of the Government of Bombay dated August 13, 1949, giving a
general consent in respect of all the members of the establishment. It was not
necessary that the consent be given to every individual member of the
Establishment.
H.N. Rishbud & Inder Singh v. State of
Delhi, [1955] 1 S.C. R. 1150, followed, Held, further, that there was no defect
in the charges. It was not illegal to charge public servants and persons who
were not public servants with the criminal conspiracy to do certain acts for
which all of them could not be convicted separately. Though all the accused
were not liable for the individual offences, they were all guilty of the
offence of conspiracy to do illegal acts.
Held, further, that the evidence of L was
reliable and that it was corroborated in material particulars so far as the
appellant was concerned. Though L was not an accomplice, he was an interested
witness and required corroboration. The evidence of an approver and the
corroborating pieces of evidence could not be treated in two different
compartments;
but had to be considered together. Though
some parts of the evidence of L were not accepted, his version was broadly
accepted in regard to the conspiracy and the manner in which articles were
smuggled out.
Sarwan Singh v. The State of Punjab, [1957]
S.C.R. 953, explained.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 2 of 1958.
Appeal from the judgment and order dated July
27, 1957, of the Bombay High Court in Criminal Appeal No. 254 of 1957.
WITH Criminal Appeal No. 81 of 1960.
Appeal by special leave, from the judgment
and order dated July 27, 1957, of the Bombay High Court, in Criminal Appeals
Nos. 255 and 257 of 1957.
M.H. Chhatrapati, Ravindra Narain, O. C.
Mathur and J. B. Dadachanji, for the appellant (in Criminal Appeal No. 2 of
1958).
B.K. Khanna and D. Gupta, for the respondent
in Criminal Appeal 2 of 1958) and appellant (in Criminal Appeal No. 81 of
1960).
198 Ram Lal Anand and S. N. Anand, for
respondent No. 1 (in Criminal Appeal No. 81 of 1960).
B.S. Gheba, for respondent No. 2 (in Criminal
Appeal No. 81 of 1960).
1961. April 24. The Judgment of the Court was
delivered by SUBBA RAO, J.-These two appeals-one filed by accused No. 1 by
certificate and the other filed by the State of Maharashtra by special
leave-against the judgment of the High Court of Bombay confirming the
conviction and sentence of accused No. 1 and setting aside the convictions and
sentences of accused Nos. 2 and 3.
The prosecution case may be briefly stated.
There was a depot called the Dehu Vehicle Depot in which military stores were
kept. In the year 1944 Col. Rao, the Chief Ordnance Officer, was in charge of
the Depot; Col. Sindhi, the Station Commandant, and Brig. Wilson, the
Brigadier, Ordnance, Southern Command, were his superior officers.
Accused No. 1, Major Barsay, was second in
command in the Depot and was in charge of stores section; he was 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. Avatar singh, accused No. 3, who was working in the
Unfit Sub Park, was transferred to the Kit Stores by accused No. 1 during the
absence on leave of Col. Rao. Accused No. 4, Saighal, was an Ex-Col. and was at
one time the Station Commandant of the Depot; after retirement he had been
staying in a bungalow at a short distance from mile No. 92/7 on the
Poona-Bombay Road. Accused No. 5, Ramchand Gangwani, was a refugee from Sind
and he was running a hotel at Lonnavala. Accused No. 6, Devichand, and one 199
Khemchand, who is absconding, are sons of accused No. 5.
Accused Nos. 4 and 5 were friends and they
were also partners along with one Bhagwan Parshuram of Bombay in "The
Bombay Lonavala Disposal Syndicate". There were large consignments of Kits
in Shed No. 48 of Kit Stores which were unitemized and unaccounted for in the
books of the Depot.
The accused entered into a conspiracy to
smuggle out some of the said stores and to make an illegal gain by selling them
at Bombay through accused No. 4.
The brain behind the conspiracy was accused
No. 1. The plan chalked out to implement the object of the conspiracy may be
briefly stated. Col. Rao was to proceed on leave sometime in December 1954 and
Maj. Barsay, being the next in command, was naturally to succeed him as Chief
Ordnance Officer of the Depot during the absence on leave of Col.
Rao. The smuggling of the goods out of the
Depot was 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 FitPark, 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.
Maj. Barsay agreed to get a driver of his
confidence detailed on one of the trucks to be allotted to the Kit Stores and
he offered to give orders to Kochhar on the morning of December 20, 1954, in
the presence of all, to transfer the itemized kits to Shed No. 26 ostensibly
for the purpose of conditioning and preservation. That would enable accused No.
3, Avatar Singh, to load the stores from Shed No. 17. The first trip was to be
of ordinary stores in which the 201 conspirators were not interested and the
second trip was to be of valuable stores which were to be smuggled out of the
gate. Maj. Barsay also undertook to call Maj. Nag to his office on December 20,
1954 and issue orders in the presence of Maj. Nag to Lawrence to go to Dehu
Ordnance Depot (D.O.D.) and get the fire hoses which were sent there for
repairs. Kochhar agreed to prepare a bogus voucher on Monday (December 20,
1954) morning, and Lawrence undertook to provide a bogus gate-pass. Accused No.
4, Saighal, agreed to keep a lorry and some laborers present near his bungalow
for transshipping the stores.
On the evening of December 19, 1954, Lawrence
went to the house of Saighal and the latter showed him the spot where the
stores were to be transshipped. Thereafter, after taking his dinner, Lawrence
went to the Depot at 9 p.m. The Orderly Officer at the Depot, one Shrinivasan,
informed Lawrence that Jamadar Kundanlal, who was to have been on duty at the
main gate on December 20, 1954, was sick and had taken 3 days' leave of absence
on medical grounds and that Maj. Barsay had sent a chit to him asking him to
send Lawrence to the bungalow of Maj. Barsay. Lawrence went to the bungalow of
Maj. Barsay, but could not meet him; and then Lawrence went to the residence of
Jamadar Kundanlal and tried to persuade him to attend to his duty at the main
gate on December 20, 1954.
On December 20, 1954, at about 9.15 a.m. Maj.
Barsay called Havaldar Pillay to his office and asked him to allot a new
vehicle to the Kit Stores and to detail driver Ramban on that vehicle. Havaldar
Pillay did accordingly. At about 10 a.m., Maj. Barsay called Maj. Nag and
Lawrence to his office and, in the presence of Maj. Nag, he issued orders to
Lawrence to go to Dehu Ordnance Depot (D.O.D.) personally and get the fire
hoses. After Maj. Nag left the place, Lawrence told Maj. Barsay that Jamadar
Kundanlal had reported himself to be sick and had taken leave of absence and
that one Godse was at the main gate. Maj. Barsay suggested to Lawrence that 26
202 Jamadar Jogendrasingh may be put at the main gate in place of Godse, and he
informed him that he had fixed upon Ramban as the driver of the vehicle in
which the stores were to be smuggled out. At about 11 a.m. Lawrence met Maj.
Barsay and Kochhar near, Shed No. 48 and was told by Maj. Barsay that the
scheme was to proceed according to schedule.
Kochhar and Lawrence then went to Shed No. 17
where Avatarsingh, accused No. 3, was present. Kochhar told Avatarsingh that he
had not prepared any voucher as it was not necessary. Lawrence had brought an
old gate-pass with him and he handed over the same to Avatarsingh. Truck No.
D. D. 5963 was, in the first instance, loaded
with ordinary stores and was sent to Shed No. 26. In the meanwhile, Lawrence
went to the Depot and asked Godse to take over at the Unfit Sub Park gate and
he ordered Jamadar Jogendrasingh to take over from Godse at the main gate. As
Jamadar Jogendrasingh refused to accept the gate-pass to be produced by the
driver and pass out the vehicle without making an entry regarding the same in
the "Vehicles In and Out Register", Lawrence gave him a written order
to that effect with instructions not to show or hand over that written order to
anybody except himself on his return or to Maj.
Nag. At about 1 p.m. Maj. Barsay told
Lawrence that he had become apprehensive of the scheme succeeding, as he had
seen the Station Commandant's car near the Barrack Office and, therefore, he
told him not to take out the vehicle till that car had gone out. Lawrence agreed
and went to Shed No. 17 where Avatarsingh was present, and Avatarsingh got the
truck loaded and handed over the bogus gate-pass and the duty-slip of the
vehicle to Ramban, and he also asked Lawrence to get into the truck there
itself instead of near the main gate as per the plan. After Lawrence got into
the truck, it proceeded towards the main gate at about 1.40 p.m. At the main
gate, Ramban gave the duty-slip of the vehicle and also the bogus gate-pass to
Jamadar Jogendrasingh and the latter told Lawrence that Maj. Barsay had left a
message for him "not to do it on that day". Lawrence, 203 ignoring
the said directions, took the vehicle out of the gate. At a spot near Talegaon
there was a civilian lorry bearing No. BYL 3289 kept ready by accused Nos. 4, 5
and 6 for transhipping the stores, and to that place the truck was driven. The
two lorries were parked back to back, and accused No. 6. and the absconding
accused Khemchand and two others started transhipping the stores from the
military lorry to the civilian lorry. At that stage, the police officers
appeared at the scene and prevented further fulfilment of the plan of the
accused.
It is a further case of the prosecution that
Lawrence ostensibly joined the conspiracy with a view to bring to book the
culprits and was informing the superior officers and the police orally and in
writing from time to time as and when the important events were taking place.
As some argument was made on the basis of the
charges, it would be convenient at this stage to read the charges framed by the
Special Judge, Poona. The charges are:
(1) That you accused No. 1 Major E. G. Barsay,
when officiating as Chief Ordnance Officer, D. U. V. and you accused No. 2, H.
S.
Kochhar, when posted as Civilian Group
Officer, D. U. V., and you accused No. 3, Avatarsingh Seva Singh, then working
as Civilian Stores Keeper, D. U. V., and you accused No. 4, W. S. Saighal,
released Lt.
Col., and you, accused No. 5, Ramchand
Pahlajrai Gangawani, and you accused No. 6, Deviprasad Ramchand Gangawani and
the absconding accused Khemchand between about October 1954 and December 1954
were parties to a criminal conspiracy at Dehu Road area by agreeing to do
certain illegal acts to wit:
Firstly, dishonestly or fraudulently
misappropriate or otherwise convert to your own use the Military Stores lying
in the Vehicle Depot, Dehu Road and which was entrusted or was in-charge of
Major E. G.
Barsay, H. S. Kochhar, and Avatarsingh Seva
Singh and which was also under their control, as public servants; Secondly, to
obtain by corrupt or illegal means for yourselves or for any other persons 204
such stores which amounts to abusing their position as public servants i.e.,
the co-conspirators; Thirdly, to commit illegal acts of committing theft or
receiving of stolen property and the above said illegal acts were done in
pursuance of the said agreement and that you have thereby committed an offence
punishable under Section 120-B of the Indian Penal Code and within my
cognizance.
(2) That you accused Nos. 1, 2, 3,4, 5, 6 and
another (Khemchand Ramchand Gangawani), between about October 1954 and December
1954 in pursuance of the abovesaid conspiracy jointly and in furtherance of the
common intention of all of you, you accused No. 1, Major Barsay, Officiating
Chief Ord. nance Officer, and you accused No. 2, H. S. Kochbar, Civilian Group
Officer, D. U. V., and you accused No. 3, Avatarsingh Seva Singh, Civilian
Store Keeper, and you accused No. 4, W. S. Saighal, released Lt. Col., and you
accused No. 5, Ramchand Pahalajrai Gangawani, and you accused No. 6, Deviprasad
Ramchand Gangawani, did on 20th of December 1954, dishonestly or fraudulently
his. appropriate with a common intention or convert for your own use Government
property in the form of Military Stores described in detail in Schedule 'A'
appended herewith, entrusted to or under the control of the first three
accused, namely, Major E. G. Barsay, H. S. Kochhar and Avatarsingh Seva Singh,
who were public servants and thereby committed an offence under Section
5(1)(c), punishable under section 5(2), of the Prevention of Corruption Act,
read with Section 34 of the Indian Penal Code and within my cognizance.
(3) That you accused Nos. 1, 2,3, 4, 5, 6 and
the absconding accused Khemchand Ramchand Gangawani, in pursuance of the abovesaid
conspiracy, jointly and in furtherance of the common intention of all of you,
did by corrupt or illegal means by abusing their position as public servants,
obtained for yourselves or for any other persons, the valuable things in the
form of Military Stores detailed out in Schedule 'A' appended herewith, and
this act 205 constitutes an offence under Section 5(1)(d) of the Prevention of
Corruption Act, punishable under Section 5(2) of the said Act read with Section
34 of the Indian Penal Code and within my cognizance.
(4) That you accused Nos. 1, 2, 3, 4,5, 6,
along with the absconding accused, Khemchand Ramchand Gangawani, did on 20th of
December 1954, in pursuance of the abovesaid conspiracy jointly and in
furtherance of the common intention of all of you, dishonestly or fraudulently
remove the Military stores described in detail in Schedule 'A' appended
herewith from the Dehu Road Depot and this act constitutes an offence
punishable either under Section 381 or 411 of the Indian Penal Code, read with
Section 34 of the Indian Penal Code and within my cognizance." The main
defence of the accused was that, in view of the thefts going on in the Depot,
the reputation of Lawrence, the Security Officer, was at the lowest ebb, that
in order to resurrect his reputation and to ingratiate himself into the good
books of his superiors, he concocted the scheme of huge fraud and implicated
therein the accused, including the Acting Chief Ordnance Officer of the Depot.
Shortly stated, the defence was that all the accused were innocent and that it
was Lawrence that "abducted" the truck with the stores, made false
statements to the superior officers from time to time giving concocted versions
to fit in with the theory of conspiracy.
The Special Judge, on a consideration of the
evidence, held that all the charges were made out against the accused. He
rejected the technical objections raised in regard to the framing of the
charges, the validity of the investigation made by the investigating officer
and the sanction given by the Central Government for the prosecution of the
accused, and came to the conclusion that prima facie there was no good ground
to discard the evidence of Lawrence, but he placed the said evidence in the
category of interested evidence and required independent corroboration before
acceptance. In the words of the learned Special Judge, "Shri Lawrence's
evidence can, 206 therefore, be accepted and relied upon, only if it is
corroborated by other independent evidence and circumstances in the case."
He found ample evidence and circumstances corroborating the evidence of
Lawrence. After considering the entire evidence, he came to the following
conclusion:
"The above discussion of the evidence on
record and the circumstances in the case makes it abundantly clear that the
prosecution has been able to prove beyond a reasonable doubt that every one of
these six accused did commit overt acts in furtherance of the criminal
conspiracy alleged against them." He held that accused Nos. 1 to 6 were
guilty of the principal offence charged against them and convicted all of them
under s. 120-B of the Indian Penal Code and s. 5(2) of the Prevention of
Corruption Act, 1947, read with B. 34 of the Indian Penal Code. He gave varying
sentences of imprisonment and fine to the accused. The accused preferred five
appeals to the High Court against their convictions and sentences.
A division bench of the Bombay High Court
which heard the appeals set aside the conviction of accused Nos. 2, 3, 5 and 6,
but confirmed those of accused' Nos. 1 and 4. The High Court also rejected all
the technical objections raised at the instance of the appellant-accused in
regard to some parts of 2nd, 3rd and 4th charges. In regard to the 2nd and 3rd
head sub-charges, tile High Court accepted the plea that accused Nos. 4, 5 and
6 could not be charged with having committed an offence under s. 5(1)(c) and s.
5(1)(d) of the Prevention of Corruption Act, as they were not public servants;
but they held that it would be proper to frame a charge against them under s.
109 of the Indian Penal Code for having abetted the commission of the offence
of criminal misconduct under s. 5(1)(c) and (d) of the Prevention of Corruption
Act, committed by accused Nos. 1 to 3. As the High Court held that they were
not prejudiced by the irregularity of the charge, it altered the charge to one
under s. 109 of the Indian Penal Code, read with s. 5(1)(c) and (d) of the
Prevention of Corruption Act. As regards the 207 last head of the charge, it
held that all the accused could not be charged with having committed an offence
under s. 381 of the Indian Penal Code and that the charge under s. 411 of the
Indian Penal Code would also appear to be improper so far as accused Nos. 1 to
3 were concerned; but it held that so far as accused Nos. 4, 5 and 6 were
concerned, the charge under s. 411, read with s. 34, Indian Penal Code, would
be quite proper.
Before the High Court, learned counsel
appearing on behalf of the accused and the special counsel, Mr. Amin, appearing
on behalf of the State, asked the Court to proceed to examine the evidence of
Lawrence on the basis that he was a decoy and a trap witness. The High Court
agreed with the learned Special Judge that the evidence of Lawrence would, have
to be treated on par with that of a trap witness and that it would be
inadvisable to rely upon the said evidence without independent corroboration.
It also pointed out that the corroboration required was not a corroboration of
every particular in respect of which the accomplice or the approver gave his evidence,
but the corroboration must be such as to make the court believe that the
evidence of the accomplice was a truthful one and that it would be safe to act
upon that evidence. Finally the High Court premised its discussion of the
evidence in the following words:
"In our opinion, all these decisions
would clearly establish that it would not be safe to rely on the evidence of
Lawrence who is admittedly a decoy or trap witness, without his testimony being
corroborated from independent sources." Then the learned Judges of the
High Court considered the evidence of Lawrence minutely, discarded some parts
of the evidence which were discrepant or inconsistent with other proved facts
and accepted the broad story of conspiracy given by him as true to the extent it
was corroborated by other unimpeachable pieces of evidence and circumstances.
After elaborately considering the evidence of
Lawrence, the learned Judges of the High Court came to the following conclusion:
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 s. 5(1)(c) and (d) of the
Prevention of Corruption Act, 1947. As regards accused No. 3, they were of the
opinion that the case against him was not established beyond reasonable doubt
and that he could not be held to be guilty of criminal conspiracy as well as
criminal misconduct. As regards accused No. 4, they accepted the finding of the
learned Special Judge, as independent acceptable evidence corroborated the
evidence of Lawrence in respect of this accused. So far as accused Nos. 5 and 6
were concerned, they found the evidence to be very weak and therefore set aside
the convictions and sentences passed against them.
In the result, they confirmed the convictions
and sentences of accused Nos. 1 and 4, and set aside those of accused Nos. 2,
3, 5 and 6.
It appears that accused No. 4 died after the
appeal was disposed of by the High Court. Accused No. 1 preferred Criminal
Appeal No. 2 of 1958 against his conviction and sentence passed by the High
Court and the State preferred Criminal Appeal No. 81 of 1960 challenging the
correctness of the order of acquittal made in respect of accused Nos. 2 and 3.
We shall first take the appeal filed by
accused No. 1.
209 Learned counsel for the appellant raised
before us all the technical points which he unsuccessfully raised before the
Special Judge as well as before the High Court. At the outset we shall deal
with the said contentions before considering the arguments advanced on the
merits of the case.
The first contention of learned counsel for
the appellant is that the Special Judge, Poona, had no jurisdiction to take
cognizance of the offences with which the accused were charged and that they should
have been tried only by a court martial under the Army Act.
The argument of learned counsel for the
appellant may be briefly stated thus: The Army Act, 1950 (46 of 1950) created
new offences. Section 52 of the said Act created offences with which accused in
the present case were charged, and provided a new machinery, namely, a court
martial, to try persons committing the said offences. Therefore by necessary
implication the trial of the said offences was excluded from the jurisdiction
of ordinary criminal courts.
This argument was sought to be reinforced by
the provisions of s. 69 of the Army Act where under, 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 second
category of offences. Assuming that the said contention was wrong, it was
argued, s. 126 of the Army Act is peremptory in its language, namely, that a
criminal court shall not have jurisdiction to try an offence 27 210 defined
under the Army Act, unless the conditions laid down therein were strictly
complied with, that is, unless requisite notice is given to the officer
referred to in s. 125 of the Act.
To appreciate the said argument it is
necessary to scrutinize the provisions of the Army Act in some detail.
Section 2 describes the different categories
of army personnel who are subject to the Army Act. Section 3(ii) defines
"civil offence" to mean "an offence which is triable by a
criminal court"; a. 3(vii) defines "court-martial" to mean
"a court-martial held under this Act"; s. 3(viii) defines
"criminal court" to mean "a court of ordinary criminal justice
in any part of India, other than the State of Jammu and Kashmir"; s.
3(xvii) defines "offence" to mean "any act or omission
punishable under this Act and includes a civil offence"; and s. 3(xxv)
declares that "all words and expressions used but not defined in this Act
and defined in the Indian Penal Code shall be deemed to have the meanings
assigned to them in that Code." Chapter VI is comprised of ss. 34 to 70.
The heading of the Chapter is "Offences". As we have already noticed,
the word "offence" is defined to mean not only any act or omission
punishable under the Army Act, but also a civil offence. Sections 34 to 68
define the offences against the Act triable by court-martial and also -give the
punishments for the said offences. Section 69 says that any person subject to
the Act who at any Place in or beyond India commits any civil offence shall be
deemed to be guilty of an offence against the Act and, if charged therewith
under this section, shall be liable to be tried by a court-martial and, on
conviction, be punishable as provided for the offence under any law in force in
India or such less punishment as is in the Act mentioned. Under s. 70, " A
person subject to this Act who commits an offence of murder against a person
not subject to military, naval or air force law, or of culpable homicide not
amounting to murder against such a person or of rape in relation to such a
person, shall not be deemed to be guilty of an offence against this Act and
shall not be tried by a Court martial." 211 There are three exceptions to
this section with which we are not concerned now. Shortly stated, under this
Chapter there are three categories of offences, namely, (1) offences committed
by a person subject to the Act triable by a court martial in respect whereof
specific punishments have been assigned; (2) civil offences committed by the
said person at any place in or beyond India, but deemed to be offences
committed under the Act and, if charged under s. 69 of the Act, triable by a
court-martial; and (3) offences of murder and culpable homicide not amounting
to murder or rape committed by a person subject to the Act against a person not
subject to the military law. Subject to a few exceptions, they are not triable
by court-martial, but are 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 court martial; but where a civil offence is also an offence under
the Act or deemed to be an offence under the Act, both an ordinary criminal
court as well as a court martial would have jurisdiction to try the person
committing the offence. Such a situation is visualized and provided for by as.
125 and 126 of the Act. Under s. 125, "When a criminal court and a
court-martial have each jurisdiction in respect of an offence, it shall be in
the discretion of the officer commanding the army, army corps, division or
independent brigade in which the accused person is serving or such other
officer as may be prescribed to decide before which court the proceedings shall
be instituted, and, if that officer decides that they should be instituted
before a court martial, to direct that the accused person shall be detained in
military custody." Under a. 126(1) of the Act, "When a criminal court
having jurisdiction is of opinion that proceedings shall be instituted before
itself in respect of any alleged offence, it may, by written notice, require
the officer referred to in 212 section 125 at his option, either to deliver
over the offender to the nearest magistrate to be proceeded against according
to law, or to postpone proceedings pending a reference to the Central
Government." Clause (2) of that section says that, "In every such
case they said officer shall either deliver over the offender in compliance
with the requisition, or shall forthwith refer the question as to the court
before which the proceedings are to be instituted for the determination of the
Central Government, whose order upon such reference shall be final."
Section 125 presupposes that in respect of an offence both a criminal court as
well as a court-martial have each concurrent jurisdiction. Such a situation can
arise in a case of an act or omission punishable both under the Army Act. as well as
under any law in force in India. It may also arise in the case of an offence
deemed to be an offence under the Act. Under the scheme of the said two
provisions, in the first instance,, it is left to the discretion of the officer
mentioned in s. 125 to decide before which court the proceedings shall be
instituted, and, if the officer decides that they should be instituted before a
court-martial, the accused person is to be detained in military custody; but if
a criminal court is of opinion that the said offence shall be tried before
itself, he may issue the requisite notice under s. 126 either to deliver over
the offender to the nearest magistrate or to postpone the proceedings pending a
reference to the Central Government. On receipt of the said requisition, the
officer may either deliver over the offender to the said court or refer the
question of proper court for the determination of the Central Government whose
order shall be final. These two sections provide a satisfactory machinery to
resolve the conflict of jurisdiction, having regard to the exigencies of the
situation.
What is more, s. 127 of the Army Act provides
for successive trials by court-martial and by criminal court in respect of the
same offence. Under sub-s. (1) of that section, "A person convicted or
acquitted by a 213 court-martial may, with the previous sanction of the Central
Government, be tried again by a criminal court for the same offence, or on the
same facts." But sub-s. (2) thereof imposes a limitation in the matters of
punishment; for, under that sub-section, the criminal court shall, in awarding
punishment, have regard to the punishment the offender may already have
undergone for the said offence.
The scheme of the Act, therefore, is
self-evident. It applies to offences committed by army personnel described in
s. 2 of the Act; it creates new offences with specified punishments, imposes
higher punishments to pre-existing offences, and enables civil offences by a
fiction to be treated as offences under the Act; it provides a satisfactory
machinery for resolving the conflict of jurisdiction. Further it enables,
subject to certain conditions, an accused to be tried successively both by
court-martial and by a criminal court. It does not expressly bar the
jurisdiction of criminal courts in respect of acts or omissions punishable
under the Act, if they are also punishable under any other law in force in
India; nor is it possible to infer any prohibition by necessary implication.
Sections 125, 126 and 127 exclude any such inference, for they in express terms
provide not only for resolving conflict of jurisdiction between a criminal
court and a court-martial in respect of a same offence, but also provide for
successive trials of an accused in respect of the same offence.
Now let us apply this legal position to the
facts of the case. Under s. 52 of the Act, any person subject to the Act who
commits theft of any property belonging to Government or to any military, naval
or air force mess, band or institution, or to any person subject to military,
naval or air force law, or dishonestly misappropriates or converts to his own
use any such property, or commits criminal breach of trust in respect of any
such property, or does any other thing with intent to defraud, or to cause
wrongful gain to one person or wrongful loss to another person shall, on conviction
by court-martial, be liable to suffer imprisonment for a term which may extend
to ten years 214 or such less punishment as is in the act mentioned. Section 2
(xxv) says that all words and expressions used but not defined in the Army Act
and defined in the Indian Penal Code shall be deemed to have the meanings
assigned to them in that Code. The section does not create new offences, but
prescribes higher punishments if the said offences are tried by a
court-martial. The appellant and the other accused were charged in the present
case, among others, for having been parties to a criminal conspiracy to
dishonestly or fraudulently misappropriate or otherwise convert to their own
use the military stores and also for dishonestly or fraudulently
misappropriating the same. The said acts constitute offences under the Indian
Penal Code and under the Prevention of Corruption Act. They are also offences
under s. 52 of the Army Act. Though the offence of conspiracy does not fall
under s. 52 of the Act, it, being a civil offence, shall be deemed to be an
offence against the Act by the. force of s. 69 of the Act. With the result that
the offences are triable both by an ordinary criminal court having jurisdiction
to try the said offences and a court martial. To such a situation ss. 125 and
126 are clearly intended to apply. But the designated officer in s. 125 has not
chosen to exercise his discretion to decide before which court the proceedings
shall be instituted. As he has not exercised the discretion, there is no
occasion for the criminal court to invoke the provisions of s. 126 of the Act,
for the second part of s. 126(1), which enables the criminal court to issue a
notice to the officer designated in s. 125 of the Act to deliver over the
offender to the nearest magistrate or to postpone the proceedings pending a
reference to the Central Government, indicates that the said subsection
presuppose,% that the designated officer has decided that the proceedings shall
be instituted before a court-martial and directed that the accused person shall
be detained in military custody. If no such decision was arrived at, the Army
Act could not obviously be in the way of a criminal court exercising its
ordinary jurisdiction in the manner provided by law.
215 The correct approach to the problem may
be stated thus: The appellant and the other accused have committed offences
under the Indian Penal Code and the Prevention of Corruption Act. By reason of
s. 7 of the Criminal Law (Amendment) Act, 1952, the said offences are triable
by a special judge appointed under that Act. The special judge so appointed
would have jurisdiction to try the said offences unless the Army Act expressly,
or by necessary implication, excluded the offences alleged to have been
committed by the appellant and others from the jurisdiction of that court. The
aforesaid discussion of the provisions of the Army Act indicates that there is
not only no such exclusion but also that there is clear and unambiguous
indication to the contrary.
An argument advanced by learned counsel for
the appellant in this context may conveniently be noticed at this stage. The
second branch of the argument of learned counsel for the appellant under this
head is based upon s. 549 of the Code of Criminal Procedure. Under that
section, "The Central Government may make rules, consistent with this Code
and the Army Act............... as to the cases in which persons subject to
military, naval or air-force law shall be tried by a court to which this Code
applies, or by Court martial ................ . The Central Government made
rules in exercise of the power conferred on it under this section.
No rule was made prescribing that the
offences with which we are now concerned shall be tried only by a
court-martial.
But reliance is made on r. 3 which reads:
"Where a person subject to military,
naval or air-force law is brought before a Magistrate and charged with an
offence for which he is liable to be tried-by a Court-martial, such Magistrate
shall not proceed to try such person or to inquire with a view to his
commitment for trial by the Court of Sessions or the High Court for any offence
triable by such Court, unless, (a) he is of opinion, for reasons to be
recorded, that he should so proceed without being moved thereto by competent
military, naval or air-force authority; or 216 (b) he is moved thereto by such
authority." This rule obviously cannot apply unless the Special Judge
constituted under the Criminal Law (Amendment) Act, 1952, is a magistrate
within the meaning of that rule. A special judge is appointed under s. 6(1) of
the Criminal Law (Amendment) Act to try the offences specified therein.
Section 6(2), of that Act lays down that
"A person shall not be qualified for appointment as a special judge under
this Act unless he is, or has been, a sessions Judge or an additional sessions
Judge or an assistant sessions Judge under the Code of Criminal Procedure, 1898
(V of 1898)." Section 8(1) of the said Act says, "A Special Judge may
take cognizance of offences without the accused being committed to him for
trial, and in trying the accused persons, shall follow the procedure prescribed
by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of
warrant cases by magistrates." Under sub-s. (3) thereof, "Save as
provided in sub-section (1) or subsection (2), the provisions of the Code of
Criminal Procedure, 1898, shall, so far as they are not inconsistent with this
Act, apply to the proceedings before a Special Judge; and for the purpose of
the said provisions, the Court of the Special Judge shall be deemed to be a
Court of session trying cases without a jury or without the aid of assessors
and the person conducting a prosecution before a special judge shall be deemed
to be a public prosecutor." Under s. 9 of the said Act, "The High
Court may exercise, so far as they may be applicable, all the powers conferred
by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898 (Act V of
1898), on a High Court as if the Court of a Special Judge were a Court of
session trying cases without a jury within the local limits of the jurisdiction
of the High Court." These provisions equate a special judge with a
sessions judge, and the provisions of the Code of Criminal Procedure applicable
to a sessions judge, in so far as they are not inconsistent with the Act, are
made 217 applicable to a special judge. But it is said that s. 8(1) of the Act
puts him on par with a magistrate and therefore r. (3) of the rules framed
under s. 549 which applies to a magistrate equally applies to a special judge.
This argument overlooks the limited purpose for which s. 8(1) is enacted.
Section 8 of the Criminal Law (Amendment) Act makes a distinction between the
power of a special judge to take cognizance of an offence and the procedure to
be followed by him in trying the case. In trying accused persons, he is
enjoined to follow the procedure prescribed by the Code of Criminal Procedure
for the trial of warrant cases by magistrates. The warrant procedure is
incorporated in the Act by reference to the Code of Criminal Procedure.
Chapter XXI of the Code of Criminal Procedure
provides the procedure for the trial of warrant cases; and s. 549 is not one of
the sections in that Chapter. Nor does it empower the Central Government to
make rules modifying the warrant procedure. That apart, can it be said that, by
reason of the procedure to be followed by the special judge, he would be a
magistrate empowered to try such a person within the meaning of r. (3)? Section
8(1) of the Criminal Law (Amendment) Act maintains a clear distinction between
jurisdiction and the procedure. It is, therefore, not possible to hold that a
special judge is a magistrate within the meaning of r. (3). If so, it follows
that r. (3) has no application to the trial of an army personnel by a special
judge.
There is a more formidable obstacle in the
way of learned counsel's argument. Section 7 of the Criminal Law (Amendment)
Act, 1952, reads:
"Notwithstanding anything contained in
the Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law the
offences specified in subsection (1) of section 6 shall be triable by special
Judges only." Doubtless the Army Act is comprehended by the words
"any other law". The offences with which we are now concerned are
certainly offences specified in sub-s. (1) of s. 6 of the Criminal Law
(Amendment) Act. The non obstante clause in s. 7 clearly confers 218
jurisdiction to try persons committing the said offences on a special judge.
But it is contended that the Army Act is a special Act and therefore s. 7 found
in the general Act cannot take away the jurisdiction conferred on a court martial
in respect of the said offences. That proposition of law may have some bearing
when there is conflict of jurisdiction arising out of a general Act and a
special Act, without any specific exclusion of the jurisdiction in the general
Act of that conferred under the special Act. But that principle may not have
any relevance to a case where the general Act in express terms confers
jurisdiction on a particular tribunal in respect of specified offences to the
exclusion of anything contained in any other law. In such a situation, the
intention of the Legislature is clear and unambiguous, and no question of
applying any rule of interpretation would arise, for the rules of
interpretation are evolved only to ascertain the intention of the Legislature.
It is contended that s. 7 confers an
exclusive jurisdiction on a special judge only in regard to offences specified
in sub-s. (1) of s. 6 and that the said subsection does not comprise offences
under s. 52 of the Army Act. There is a fallacy underlying this argument.
Certain acts committed or omissions made by a person constitute offences under s.
6(1) of the Criminal Law (Amendment) Act, 1952. Under s. 7 of the said Act, the
said offences are exclusively triable by a special judge. In the present case
the accused were charged with having committed offences expressly falling under
B. 6 of the said Act and, therefore, the special judge had clearly jurisdiction
to try the accused in respect of the said offences. The mere fact that the said
acts or omissions might also constitute an offence under s. 52 of the Army Act
would not be of any relevance, as jurisdiction was exclusively conferred on the
special judge notwithstanding anything contained in any other law. If that be
so, the special judge had exclusive jurisdiction to try offences covered by s.
6 of the Criminal Law (Amendment) Act, 1952.
At this stage, another argument of learned
counsel may be adverted to. He says that some of the offences with which the
accused are charged in the present 219 case are not those enumerated in s. 6 of
the Criminal Law (Amendment) Act, 1952. This objection is clearly answered by
s. 7(b) of the said Act which says, "When trying any case, a special judge
may also try any offence other than an offence specified in section 6 with
which the accused may, under the Code of Criminal Procedure, 1898, be charged
at the same trial." It is then argued that the prosecution has failed to
establish that the Central Government accorded sanction to prosecute the
appellant under s. 6(1) of the Prevention of Corruption Act. Under s. 6(1)(a)
of the Prevention of Corruption Act, "No Court shall take cognizance of an
offence punishable under section 161 or section 164 or section 165 of the
Indian Penal Code, or under subsection (2) of section 5 of this Act, alleged to
have been commuted by a public servant, except with the previous sanction-(a)
in the case of a person who is employed in connection with the affairs of the
Union and is not removable from his office save by or with the sanction of the
Central Government, of the Central Government............
It is common case that the appellant was a
public servant within the meaning of the said sub-section and, therefore, he
cannot be prosecuted without the sanction of the Central.
Government. The sanction given in this case
for the prosecution of the appellant reads thus:
" . . . . . . . . . . . . . . . . . . .
.
NOW, THEREFORE, THE CENTRAL GOVERNMENT doth
hereby accord sanction under section 197 of the Criminal Procedure Code (Act V
of 1898) and section 6(1)(a) of the Prevention of Corruption Act, 1947 (II of
1947) to the initiation of proceedings to prosecute in a Court of competent
jurisdiction the said Major E. G. Barsay and Shri H. S. Kochhar in respect of
the aforesaid offences and other cognate offences punishable under other
provisions of law.
Sd. M. Gopala Menon, Deputy Secretary to the
Govt. of India." 220 Ex facie the said order giving the requisite sanction
purports to have been issued in the name of the Central Government and is
signed by the Deputy Secretary to the Government of India in the Ministry of
Home Affairs. P.W.
36, Dharambir, an Assistant in the Minstry of
Home Affairs, New Delhi, has given evidence in respect of this document.
He says that the papers relating to the
present case were submitted to the Home Ministry by the Inspector General of
Police, Special Police Establishment, New Delhi, for obtaining the necessary
sanction, that the papers were put up before the Deputy Secretary in that
Ministry, that the Deputy Secretary was competent to accord sanction on behalf
of the President, and that he gave the said sanction under his signature. In
the cross-examination, this witness says that he cannot say whether the Deputy
Secretary's signature was in his own right or by way of authentication of the
President's order. This un contradicted 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 Art. 77 of the Constitution may be noticed.
Under el. (1) of Art. 77, all executive
actions of the Government of India shall be expressed to be taken in the name
of the President; and under cl. (2) thereof, orders and other instruments made
and executed in the name of the President shall be authenticated in 221 such
manner as may be specified in rules to be made by the President, and the
validity of an order or instrument which is so authenticated shall not be
called in question on the ground that it is not an order or instrument made or
executed by the President. Under the General Clauses Act, the expression
"President" means the Central Government. It is, therefore, argued
that as the order issuing the sanction was not expressed to be made in the name
of the President, the sanction was void. This Article and the corresponding
Article viz., Art. 166, were subject to judicial scrutiny by this Court. The
validity of an order of detention made by the Bombay Government under s. 3 of
the Preventive Detention Act, 1950, was considered in The State of Bombay v.
Purushottam Jog Naik (1). There, in the body of the order the
"satisfaction" was shown to be that of the Government of Bombay; at
the bottom of the order the Secretary to the Government of Bombay, Home
Department, signed it under the words "By order of the Governor of
Bombay". It was contended that the order was defective as it was not
expressed to be in the name of the Governor within the meaning of Art. 166(1)
of the Constitution and accordingly was not protected by cl. (2) of the said
Article. Adverting to this contention, Bose, J., speaking for the Court, said
at p. 678:
"In our opinion, the Constitution does
not require a magic incantation which can only be expressed in a set formula of
words. What we have to see is whether the substance of the requirements is
there." This judgment lays down that we must look at the substance of the
order. On a construction of the order that was in question in that case, having
regard to the definition of "State Government" in the General Clauses
Act and the concluding words "By order of the Governor of Bombay",
the Court came to the conclusion that the order was expressed to have been
taken in the name of the Governor. In Dattatreya Moreshwar Pangarkar v. The
State of Bombay (2), an (1) [1952] S.C.R. 674.
(2) [1952] S.C.R. 612.
222 order made under the Preventive Detention
Act, 1950, was questioned on the ground that it did not comply with the
provisions of Art. 166(1) of the Constitution. There the order was made in the
name of the Government and was signed by one Kharkar for the Secretary to the
Government of Bombay, Home Department. Das, J., as he then was, after referring
to the decision of the Federal Court in J. K. Gas Plant Manufacturing Co.,
(Rampur) Ltd. v. The King-Emperor (1) observed at p. 625 thus:
"Strict compliance with the requirements
of article 166 gives an immunity to the order in that it cannot be challenged
on the ground that it is not an order made by the Governor.
If, therefore, the requirements of that
article are not complied with, the resulting immunity cannot be claimed by the
State.
This, however, does not vitiate the order itself."
The learned Judge came to the above conclusion on the ground that the
provisions of the said article are only directory and not mandatory. This
decision was followed by this Court in P. Joseph John v. The State of
Travancore-Cochin (2).
There the "show cause notice"
issued under Art. 311 of the Constitution was impugned on the ground that it
was contrary to the provisions of Art. 166 thereof. The notice was issued on
behalf of the Government and was signed by the Chief Secretary to the
Government, who had under the rules of business framed by the Rajpramukh the
charge of the portfolio of "service and appointments" at the
Secretariat level in the State. This Court held that the said notice was issued
in substantial compliance with the directory provisions of Art. 166 of the
Constitution. The latest decision on the point is that in Ghaio Mall & Sons
v. The State of Delhi(1). There the question was whether the communication
issued by the Under Secretary, Finance, Government of Delhi State, had complied
with the provisions of Art. 166 of the Constitution. This Court held that it
did not comply with the provisions of (1) (1947) F.C.R. 141. (2) [1935] 1
S.C.R. 1011.
223 Art. 166 of the Constitution and also
found that the said order was not, as a matter of fact, made by the Chief
Commissioner. When the decision in Dattatreya Moreshwar Pangarkar's case (1)
was cited this Court observed at p. 1439 thus:
"In that case there was ample evidence
on the record to prove that a decision had in fact been taken by the appropriate
authority and the infirmity in the form of the authentication did not vitiate
the order but only meant that the presumption could not be availed of by the
State." The foregoing decisions authoritatively settled the true
interpretation of the provisions of Art. 166 of the Constitution. Shortly
stated, the legal position is this:
Art. 166(1) is only directory. Though an
impugned order was not issued in strict compliance with the provisions of Art.
166(1), it can be established by evidence
aliunde that the order was made by the appropriate authority. If an order is
issued in the name of the Governor and is duly authenticated in the manner
prescribed in r. (2) of the said Article, there is an irrefutable presumption
that the order or instrument is made or executed by the Governor. Any noncompliance
with the provisions of the said rule does not invalidate the order, but it
precludes the drawing of any such irrefutable presumption. This does not
prevent any party from proving by other evidence that as a matter of fact the
order has been made by the appropriate authority.
Article 77 which relates to conduct of
business of the Government of India is couched in terms similar to those in
Art. 166 and the same principles must govern the interpretation of that
provision.
If that be the legal position, in the instant
case the impugned order does not comply with the provisions of Art.
77(2) of the Constitution and, therefore, it
is open to the appellant to question the validity of the order on the ground that
it was not an order made by the President and to prove that it was not made by
the Central Government. But this legal position does (1) [1952] S.C.R. 612.
224 not help the appellant, for as we have
pointed out, the uncontroverted evidence of P. W. 36, an Assistant in the Home
Ministry, which was accepted by the High Court and the Special Judge,
establishes that the order was made by the Deputy Secretary on behalf of the
Central Government in exercise of the power conferred on him under the rules
delegating such power to him.
The next contention challenges the legal
competence of Jog, an Inspector of Police in the Delhi Special Police
Establishment, to make the investigation. In his evidence Jog stated that the
Inspector General of Police, Special Police Establishment, New Delhi, empowered
him under s. 5A of the Prevention of Corruption Act to investigate the offences
mentioned therein without the sanction of any magistrate. The question is
whether he can make an investigation in regard to the offences alleged to have
been committed by the accused in the present case. Section 5A of the Prevention
of Corruption Act, 1950, on which reliance is placed reads:
"Notwithstanding anything contained in
the Code of Criminal Procedure., 1898, no police officer below the rank(a) in
the presidency towns of Madras and Calcutta, of an assistant commissioner of
police, (b)in the presidency town of Bombay, of a superintendent of police, and
(c) elsewhere, of a deputy superintendent of police, shall investigate any
offence punishable under section 161, section 165 or section 165A of the Indian
Penal Code or under sub-section (2) of section 5 of this Act, without the order
of a presidency magistrate or a magistrate of the first class, as the case may
be, or make any arrest there for without a warrant:
Provided that a police officer of the Delhi
Special Police Establishment, not below the rank of an Inspector of police, who
is specially authorized by the Inspector-General of Police of that
Establishment may, if he has reasons to believe that, on account of the delay
involved in obtaining the order 225 of a magistrate of the first class, any
valuable evidence relating to such offence is likely to be destroyed or
concealed, investigate the offence without such order;
but in every case where he makes such
investigation, the police officer shall, as soon as may be, send a report of
the same to a magistrate of the first class, together with the circumstances in
which the investigation was made." The proviso governs the present case.
Jog, who was specially authorized by the Inspector-General of Police under s.
5A of the Prevention of Corruption Act to investigate the offences mentioned
therein being an Inspector of Police, was certainly empowered to make an
investigation within the meaning of that proviso. But what is contended is that
the power to investigate under that proviso is hedged in by two conditions,
namely, that the said officer should have reasons to believe that on account of
delay involved in obtaining the order of a magistrate of the first class, any
valuable evidence relating to such offence is likely to be destroyed or
concealed, and 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 noncompliance with the aforesaid two conditions.
This Court in H. N. Rishbud & Inder Singh
v. The State of Delhi (1) held that s. 5(4) and proviso to s. 3 of the
Prevention of Corruption Act, 1947, and the corresponding s.
5A of the Prevention of Corruption (Second
Amendment) Act, 1952 (LIX of 1952) are mandatory and not directory and that an
investigation conducted in violation thereof is illegal.
In the same decision this Court also pointed
out that the illegality committed in the course of investigation did not affect
the competence and jurisdiction of the court for trial and where cognizance of
the case had in fact (1) [1955] 1 S.C.R. 1150.
29 226 been taken and the case had proceeded
to termination the validity of the preceding investigation did not vitiate the
result unless miscarriage of justice of been caused thereby.
The question is whether in the present case
the investigation made by the Inspector duly authorized by the
Inspector-General of Police to investigate under s. 5A of the Prevention of
Corruption Act, without complying with the two conditions laid down in the
proviso to that section, had caused any prejudice to the accused. The High
Court, after considering the entire evidence, found that the alleged
irregularity would not justify the conclusion that the nonobservance of the
conditions prescribed in the proviso to s. 5A of the Prevention of Corruption
Act had occasioned any failure of justice. Learned counsel has taken us through
different steps in the investigation made by the said officer, and we have no
reason to differ from the conclusion arrived at by the High Court.
The validity of the investigation made by Jog
was questioned yet on another ground. It was said that he had not obtained the
requisite permission of the State Government under s. 6 of the Delhi Special
Police Establishment Act, 1946, before he started the investigation. Section 5
of that Act authorizes the Central Government to extend to any area the powers
and jurisdiction of members of the Delhi Special Police Establishment for the
investigation of any offences or classes of offences specified in a
notification under s. 3 thereof. But s. 6 of that Act says that nothing
contained in s. 5 shall be deemed to enable any member of the Delhi Special
Police Establishment to exercise powers and jurisdiction in any area in a
State, not being a Union Territory or railways area, without the consent of the
Government of that State. The Government of Bombay, Home Department, addressed
a letter to the Government of India, dated August 13,1949 and it was stated
therein, ".....I am directed to state that this Government re-affirms,
with reference to section 6 of the Delhi Special Police Establishment Act, 1946,
the consent given for an indefinite period under its letter 227 No. 5042/4-D,
dated the 6th November 1946, to the members of the Delhi Special Police
Establishment exercising powers and jurisdiction in the area of the not
province of Bombay." It was contended before the High Court and it was
repeated before us that the consent should have been given to every individual
member of the Special Police Establishment and that a general consent would not
be a good consent. We do not see any force in this argument. Under a. 6 of the Delhi
Special Police Establishment Act, no member of the said Establishment can
exercise powers and jurisdiction in any area in a State without the consent of
the Government of that State. That section does not lay down that every member
of the said Establishment should be specifically authorized to exercise
jurisdiction in that area, though the State Government can do so. When a State
Government can authorize a single officer to exercise the said jurisdiction, we
do not see any legal objection why it could not authorize the entire force
operating in that area belonging to that Establishment to make such
investigation.
The authorization filed in this case
sufficiently complies with the provisions of s. 6 of the Delhi Special Police Establishment
Act, 1946, and there are no merits in this contention.
The next contention centers round the framing
of charges.
The charges framed in this case have been
fully extracted in the earlier part of the judgment. The first objection is
that the Special Judge had no jurisdiction to try the accused on charges
involving offences other than those mentioned in s. 6(1) of the Criminal Law
(Amendment) Act, 1952. This argument ignores s. 7(2)(b) of the Act which says,
"When trying any case, a special judge may also try any offence other than
an offence specified in section 6 with which the accused may, under the Code of
Criminal Procedure, 1898, be charged at the same trial." The objection,
therefore, has no force.
The next criticism is that there can be no
legal charge of a conspiracy between accused Nos. 1 to 3, who are public
servants, and accused Nos. 4 to 6, who are not public servants, in respect of
offences under 228 the Prevention of Corruption Act for the reason that they
can only be committed by public servants. But this contention ignores the scope
of the offence of criminal conspiracy. Section 120A of the Indian Penal Code
defines "criminal conspiracy" and under that definition, "When
two or more persons agree to do, or cause to be done, an illegal act, or an act
which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy." The gist of the offence is an agreement to break the
law. The parties to such an agreement will be guilty of criminal conspiracy,
though the illegal act agreed to be done has not been done. So too, it is not
an ingredient of the offence that all the parties should agree to do a single
illegal act. It may comprise the commission of a number of acts.
Under s. 43 of the Indian Penal Code, an act
would be illegal if it is an offence or if it is prohibited by law.
Under the first charge the accused are
charged with having conspired to do three categories of illegal acts, and the
mere fact that all of them could not be convicted separately in respect of each
of the offences has no relevancy in considering the question whether the offence
of conspiracy has been committed. They are all guilty of the offence of
conspiracy to do illegal acts, though for individual offences all of them may
not be liable.
The second objection is in regard to the
second charge. It is said that accused Nos. 4, 5 and 6 could not be charged
with having committed an offence under s. 5(1)(c) and 5(1)(d) of the Prevention
of Corruption Act, as they are not public servants. The learned Judges of the
High Court accepted the said legal position as correct, but held that they
could be convicted under s. 109 of the Indian Penal Code, read with cls. (c)
and (d) of s. 5(1) of the Prevention of Corruption Act. But on the merits they
convicted accused No. 1 under s. 5(2) of the Prevention of Corruption Act,
instead of under the said section read with s. 34 of the Indian Penal Code, and
they convicted accused No. 4 under s. 109 of the Indian Penal Code, read with
s. 5(1)(c) and (d) of the Prevention of Corruption Act, instead of under s.
5(2) of the said 229 Act, read with s. 34 of the Indian Penal Code. As accused
No. 4 was dead before the appeal was filed in this Court, nothing need be said
about the legality of his conviction.
The only outstanding question, therefore, is
whether the High Court was justified in convicting accused No. 1 under s. 5(2)
of the Prevention of Corruption Act instead of under the said section read with
s. 34 of the Indian Penal Code.
To such a situation, s. 537 of the Criminal
Procedure Code applies and under that section, no sentence passed by a court of
competent jurisdiction shall be reversed or altered on appeal or revision on
account of an error, omission or irregularity in the charge, including any
misjoinder of charges, unless such error, omission, irregularity or
misdirection has in fact occasioned a failure of justice.
This Court in W. Slaney v. State of M. P. (1)
held that in adjudging a question of prejudice the concern of the court should
be to see whether the accused had a fair trial, whether he knew what he was
being tried for, whether the impugned facts sought to be established against
him were explained to him clearly and fairly and whether he was given a full
and fair chance to defend himself. Judged by the said test it is manifest that
accused No. I cannot be said to have been prejudiced by his conviction under s.
5(2) of the Prevention of Corruption Act, for accused No. I had clear knowledge
from the inception that the prosecution case against him was that he committed
an offence under s. 5(2) of the Prevention of Corruption Act and that he had
every opportunity, and indeed he made a sustained effort throughout the trial
to defend himself against the said accusation. It is not possible to hold in
this case that there was any failure of justice by reason of the High Court
convicting him for a substantive offence under s. 5(2) of the said Act.
So far as the third head of the charge is
concerned, the High Court held that it was bad in regard to accused No. 1.
Accused No. 1, therefore, cannot obviously
have any grievance with that finding. For the foregoing reasons, we hold that
there are no merits (1)[1955] 2 S.C.R. 1140.
230 in the contentions raised by learned
counsel on the basis of the charges framed in this case.
Now we come to the merits of the case. So far
as the appellant is concerned, both the Special Judge and, on appeal the High
Court accepted the evidence of Lawrence, as it was corroborated in material
particulars by other acceptable evidence. They concurrently found that the
appellant was a party to the conspiracy. The finding is one of fact, and the
practice of this Court is not to interfere with such finding except under
exceptional circumstances.
Learned counsel for the appellant made a
serious and sustained attempt to have the said finding reopened by 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 to; and if it had done so, the
question of corroboration would not arise for consideration; and (3) the
independent pieces of evidence accepted by the High Court did not corroborate the
evidence of Lawrence in material particulars implicating him in the crime.
The first argument is a direct attack on the
correctness of the finding of fact arrived at by the High Court. As we have
said, the practice of this Court in an appeal under Art. 136 of the
Constitution is not to allow such an attack except in exceptional
circumstances. Learned counsel addressed at some length on this aspect of the
case, and after hearing him, we were satisfied that there were no such
exceptional circumstances present in this case. Our reluctance to depart from
the usual practice is heightened by the fact that in the present case, so far
as the appellant is concerned, there are concurrent findings of fact by both
the courts.
231 The second argument is a subtle attempt
to reopen the findings of fact from a different perspective. This argument is
based upon a decision of this Court in Sarwan Singh v. The State of Punjab (1).
In that case, Gajendragadkar, J., speaking for the Court, observed at p.
959 thus:
"But it must never be forgotten that
before the Court reaches the stage of considering the question of corroboration
and its adequacy or otherwise, the first initial and essential question to
consider is whether even as an accomplice the approver is a reliable witness.
If the answer to this question is against the
approver then there is an end of the matter, and no question as to whether his
evidence is corroborated or not falls to be considered.
In other words, the appreciation of an
approver's evidence has to satisfy a double test." Then the learned Judge
proceeded to state, "We have carefully read the judgment delivered by the
High Court but we find no indication in the whole of the judgment that the
learned Judges considered the character of the approver's evidence and reached
the conclusion that it was the evidence given by a reliable witness."
Later on the learned Judge further stated, "........ the evidence of the
approver is so thoroughly discrepant that it would be difficult to resist the
conclusion that the approver in the present case is a wholly unreliable
witness." Relying upon these observations, learned counsel contends that
in the present case the High Court did not accept the evidence of the approver
in regard to important events and therefore the High Court should have rejected
his evidence without further attempting to see whether there was any
corroboration in material particulars in other evidence.
Before we consider this argument in the
context of the facts of the present case, we would like at the outset to make
some general observations. This Court could not have intended to lay down that
the evidence (1) [1957] S.C.R. 953.
232 of an approver and the corroborating
pieces of evidence should be treated in two different compartments, that is to
say, the Court shall have first to consider the evidence of the approver dehors
the corroborated pieces of evidence and reject it if it comes to the conclusion
that his evidence is unreliable; but if it comes to the conclusion that it is
reliable then it will have to consider whether that evidence is corroborated by
any other evidence. This Court did not lay down any such proposition. In that
case it happened that the evidence of the approver was so thoroughly discrepant
that the Court thought that he was a wholly unreliable witness. But in most of
the cases the said two aspects would be so interconnected that it would not be
possible to give a separate treatment, for as often as not the reliability of
an approver's evidence, though not exclusively, would mostly depend upon the
corroborative support it derives from other unimpeachable pieces of evidence.
We must also make it clear that we are not equating the evidence of Lawrence
with that of an approver;
nor did the Special Judge or the High Court
put him exactly on that footing. The learned Special Judge in his judgment
observed thus:
"He (Lawrence) is obviously decoy or spy
and agent provocateur and his evidence will have, therefore, to be approached
with great caution and much weight cannot be attached to it unless it is
corroborated by other independent evidence and circumstances in the
case.................... Not being tainted evidence, it would not suffer from a
disability of being unworthy of acceptance without independent corroboration.
But being interested evidence, caution requires that there should be
corroboration from an independent source before its acceptance. To convict an
accused on the tainted evidence of an accomplice is not illegal but it is
imprudent; to convict an accused upon the partisan evidence of a person at
whose instance a trap is laid by the police is neither illegal nor imprudent
but inadvisable therefore, be accepted and relied upon, only if it is
corroborated by other independent evidence and circumstances in the case."
233 The learned Judges of the High Court practically adopted the same attitude
in the manner of their approach to the evidence of Lawrence. The learned Judges
observed:
"To convict an accused upon the partisan
evidence of a person at whose instance a trap is laid by the police is neither
illegal nor imprudent, because it is just possible that in some cases an
accomplice may give evidence because he may have a feeling in his own mind that
it is a condition of his pardon to give that evidence, but no such consideration
obtains in the case of the evidence of a 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 proceed 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. v.
Baskerville, (1) which has rightly been
considered as the locus classicus of the law of approver's evidence and has
been followed by courts in India. Looking from that aspect, both the courts
have found corroboration from disinterested witnesses in material particulars
implicating the appellant in the crime. Lawrence gave a detailed account of the
unfurling of the scheme of fraud from the date he met Major Barsay on December
2, 1954, upto December 20, 1954, when the offending truck was obstructed by the
police from proceeding further on its onward journey.
Lawrence stated in his evidence that on
December 3, 1954, Major Barsay told him, inter alia, that he had chalked out a
detailed scheme in consultation with Kochhar to transfer all the valuable parts
lying in Shed No. 48 to Shed No. 17 for the purpose of itemization, that he had
'already recalled Kochhar from (1) [1916] 2 K.B. 658.
236 leave of absence prior to its expiry and
posted him in the Kit Stores, and that he had also posted Avatarsingh from
Unfit Sub Park to the Kit Stores. The prosecution has established by clear evidence
that Major Barsay was instrumental in posting Kochhar, accused No. 2, to the
Kit Stores after asking him to cut short his leave which was for, a period of
two months. It was also established by evidence that Major Barsay brought
Avatarsingh to the Kit Stores. Though these facts might not have implicated
Kochhar and Avatarsingh, they certainly corroborate the evidence of Lawrence
that Major Barsay told him that these transfers were made to facilitate the
implementation of the scheme.
Lawrence stated in his evidence that Major
Barsay told him on December 3, 1954, that he had chalked out a detailed scheme
in consultation with Kochhar to transfer all the valuable parts lying in Shed
No. 48 to Shed No. 17 for the purpose of itemization, and that as soon as the
Board of Officers was appointed there would be a shuttle of trucks moving from
Shed No. 48 to Shed No. 17 and vice versa and nobody's suspicion would be
roused if one or two trucks were taken away out of the main gate during the
course of these movements of the trucks between these two sheds. There is
evidence to show that a Board of Officers was appointed to do the work of
itemization and that one Captain Mehendiratta was appointed the President of
that Board.
Lawrence said that Major Barsay told him that
he would show certain boxes from Shed No. 48 to Col. Rao and tell him that they
did not contain many of the articles which they were said to contain, so that
Col. Rao also would not be surprised at the final result of the itemization. It
has been established by other evidence that on December 8, 1954, Major Barsay
went to Col. Rao and took him to Shed No. 48 and showed him the military stores
that were lying there awaiting itemization.
At about midday on December 18, 1954,
Lawrence stated, Major Barsay met him at the Depot and told him that he and
other conspirators would meet at his 237 residence to discuss about the scheme.
It is in evidence that on the 18th the meeting was held as deposed to by
Lawrence. Evidence of Col. Sindhi and Capt. Sharma, which was accepted by both
the courts, establishes this fact. The same evidence also establishes that at
that meeting Major Barsay, Saighal, Lawrence and two Sikhs were present, and
though the two Sikhs were not identified to be accused Nos.
2 and 3, the presence of accused Nos. 1 and 4
and two Sikhs corroborates the evidence of Lawrence.
Lawrence stated that at that meeting Major
Barsay undertook to do certain things. According to Lawrence Major Barsay told
the conspirators that he would detail a driver of his confidence in a vehicle
for executing the plan, that he would send Kochhar to Shed No. 17, order
Kochhar to transfer the itemized goods from Shed No. 17 to Shed No. 26
ostensibly for the purpose of preservation, that he would call Major Nag on
Monday (December 20) and in his presence he would order Lawrence to go to the
D.O.D. to bring the fire hoses. The evidence of Havaldar Pillay, Godse,
Suryawanshi and G. K. Pillay establishes the fact that Barsay secured one truck
and a driver for shifting of the stores from Shed No. 17 to Shed No. 26. The
evidence of Jamadar Lachmansing proves that Major Barsay went to Shed No. 17
and ordered the shifting of stores from there to Shed No. 26 for conditioning
and preservation. The evidence of Major Nag establishes that in his presence
Major Barsay sent for Lawrence and asked the latter to go to the D.O.D. and
expedite the return of the fire hoses. These established facts certainly
corroborate the evidence of Lawrence as to what took place on the 18th and also
his evidence that Major Barsay gave the said instructions to him in the
presence of Major Nag.
The evidence of Lawrence that Major Barsay
told him and the other conspirators that there should be two loadings of the
trucks at Shed No. 17, the first loading to carry innocuous articles and the
second the articles intended to be smuggled out of the Depot, was also
corroborated by disinterested evidence. Both the courts accepted that evidence.
238 Then there is evidence of the movements
of Major Barsay during the crucial time when the smuggling out of the goods was
scheduled to take place. The evidence of Jogendrasingh, Rambhan and Wagh shows
that at about 1-10 p.m. on December 20, 1954, Major Barsay was rather worried
and was moving to and fro near the main gate because he was suspecting that
somebody was watching their movements. Jamadar Jogendrasingh deposed that Major
Barsay asked him to tell Lawrence, "not to do it as there was something
suspicious about it." Major Nag also supported this version. These nervous
movements of Major Barsay certainly corroborate the evidence of Lawrence that
he was the moving spirit in the conspiracy.
The evidence of Lawrence that the duty of
going along with the truck was allotted to his part in the conspiracy is
corroborated by the circumstances establisbed by the evidence that Lawrence got
into the truck near Shed No. 17 and went in the truck to its destination.
The evidence of Lawrence regarding how Major
Barsay directed the smuggling of the goods out of the Depot was corroborated by
other independent evidence. There is evidence of Jog and Diwate to show that on
December 19, in the morning, Saighal showed the spot where the transshipment
was to take place to Lawrence. There is the evidence of Darekar to show that a
truck was arranged and that he was asked by Yakubsaheb to take his truck to
Talegaon for the transport of iron goods.
There is also the evidence of Darekar and
Hatnolkar to establish that accused No. 4 was waiting near the cemetry on the
Talegaon-Dabhade Road and that Darekar was also instructed by Saighal to park
the lorry in a particular way.
Then there is the evidence of the police
officers that the goods brought in the military lorry were being transported
into the civilian truck when they came on the scene.
All this evidence supports the version of
Lawrence when he said that Major Barsay gave the necessary instructions as to
the manner of transport of the military goods to the civilian truck.
239 The said facts found by both the courts
below implicate accused No. 1 in the matter of the preparation, laying down of
the details of implementation and the actual carrying out of the scheme of
smuggling the goods out of the Depot through all the stages and thereby
establish that the appellant was the main conspirator and the brain behind the
conspiracy. We cannot, therefore, say that the version given by Lawrence
implicating accused No. 1 is not corroborated by other independent evidence. It
follows that the conviction of the appellant by the High Court is correct.
This leads us to the appeal filed by the
State against the judgment of the High Court acquitting accused Nos. 2 and 3 on
the ground that the evidence of Lawrence implicating them in the offence was
not corroborated in material particulars by independent evidence. In this
appeal also we have not allowed learned counsel for the State to canvass the
correctness of the finding arrived at by the High Court on the appreciation of
the evidence in the case. Taking the findings arrived at by the High Court, we
find it difficult to take a different view from that taken by the High Court.
In regard to accused No. 2 the High Court
arrived at the following findings: (1) There is no evidence or allegation on
the record to show that there was any understanding between him and Major
Barsay before he left on two months leave. (2) There is no evidence that
Kochhar, accused No. 2, met Lawrence on December 6, 1954. (3) Accused No. 2
moved Major Barsay by his letter (Ex. 151) to convene the itemization board.
(4) Prior to the appointment of the board and its constitution, accused No. 2
ordered the shifting of the "specialist boxed kits" from Shed No. 48
to Shed No. 17, but this was done under Major Barsay's instructions. (5)
Accused No. 2 was present when Fernandez was ordered by Major Barsay to
complete the identification of the first set before December 13, even by
working on Sunday the 12th December, and in that connection a written order was
issued by him on December 11. (6) On December 12 Lawrence persuaded accused No.
2 to go in for two 240 insurance policies. (7) Though according to Lawrence,
Kochhar undertook to prepare a bogus voucher and to be at the Depot at the
opening hours on Monday the 20th to prepare that voucher in the office of
Lawrence, it is admitted that Kochhar refused to issue the voucher. (8) Accused
No. 2 was present at Shed No. 17 when Major Barsay issued orders to shift the
stores to Shed No. 26. And (9) Accused No. 2 accompanied Major Barsay to Shed
No. 19 in the morning and lie was present when the truck was being loaded for
the second trip at Shed No. 17. The High Court found that the said
circumstances, though some of them might raise a suspicion, did not implicate
accused No. 2 in the offence and they are consistent also with his innocence.
Though some of the facts give rise to a suspicion, we cannot say that the High
Court was wrong in holding that the said facts did not corroborate the evidence
of Lawrence in implicating the said accused in the offence.
Now coming to accused No. 3, the High Court
found the following facts based on the evidence other than that of Lawrence:
(1) Avatarsing, accused No. 3, was transferred from Unfit Sub Park to Kit
Stores. (2) Accused No. 3 was a party to the shifting of stores from Shed No.
48 to Shed No. 17 even before the appointment of the board of itemization.
(3) Though Lawrence stated that Avatarsing
expressed his inability to push the scheme on account of Capt. Kapoor's
constant vigilance and visits to Shed No. 17, Lawrence had admitted that his
first contact with Avatarsing was in the noon of 18th December. (4) There is no
evidence that Avatarsing attended the meeting at Major Barsay's on the 18th.
(5) Avatarsing loaded the truck for the first trip and also for the second
trip, and in loading the second trip he used the usual laborers and two outside
workers. (6) After the truck was loaded, he asked Rambhan to take the truck to
D. 0. D. under instructions from the superior officers. (7) The words "D.
O. D." in Ex. 42, the duty slip, were not entered by Avatarsing. The High
Court held that the said facts found on independent evidence did not implicate
the said accused in the offence and 241 they were all consistent with his
innocence. Though some of the findings give rise to suspicion we cannot say
that the High Court was wrong in holding that the said facts found did not
corroborate the evidence of Lawrence in implicating the accused in the offence.
We, therefore, accept the finding of the High Court in regard to accused Nos. 2
and 3.
In the result both the appeals fail and are
dismissed.
Appeals dismissed.
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