Major E. G. Barsay vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 2 of 1958

Decision Date: 24 April, 1961

Coram: Subba Rao, Subbarao K, Raghubar Dayal

In this case the Court recorded that the matter titled Major E G Barsay versus the State of Bombay was decided on 24 April 1961 by the Supreme Court of India. The judgment was authored by Justice Raghubar Dayal, and the bench that heard the appeal consisted of Justices Subbarao K Dayal and Raghubar Dayal. The official citation of the decision is 1961 AIR 1762 and 1962 SCR (2) 195, and several further citator references are listed for later research.

The appellant, Major E G Barsay, together with five other persons, was charged with criminal conspiracy to dishonestly or fraudulently misappropriate military stores and also with the dishonest and fraudulent misappropriation of those stores. Sanction for the prosecution was granted by a Deputy Secretary who acted on behalf of the Central Government. The trial was conducted before a Special Judge. The principal evidence presented by the prosecution was the testimony of a security officer identified only as “L”. The officer testified that he had been approached to join the alleged conspiracy and that he had joined it only with the purpose of causing the alleged offenders to be apprehended. The Special Judge, after considering the evidence, convicted all of the accused persons.

On appeal, the High Court upheld the conviction of the appellant and of one other accused, who is now deceased, but it acquitted the remaining four accused persons. The High Court’s reasoning was that the testimony of L was corroborated in material particulars only with respect to the appellant and the one other accused, and therefore the other four persons could not be sustained on the charge of conspiracy.

The appellant raised several points of contention. First, he argued that because he was subject to the Army Act, he could only be tried by a Court Martial and that the Special Judge therefore lacked jurisdiction. Second, he contended that the sanction to prosecute was void because it was not expressed to be made in the name of the President. Third, he claimed that the investigation carried out by the Inspector of Police, Special Police Establishment, Delhi, was illegal. Fourth, he maintained that a charge of conspiracy could not lawfully be framed between persons who were public servants and persons who were not public servants. Fifth, he asserted that L was a wholly unreliable witness, that his testimony should have been rejected in its entirety, and that no question of corroboration could arise.

The Court held that the Special Judge did have jurisdiction to try the appellant for the offences charged. The Court explained that the Army Act does not bar the jurisdiction of criminal courts where the acts or omissions are punishable both under the Army Act and under any other law in force. The offences alleged were therefore triable both by a Special Judge and by a Court Martial. Section 125 of the Army Act provides that if a designated officer decides that the proceedings should be before a Court Martial, he may direct the accused to be detained in military custody. In the present case the designated officer did not exercise that discretion, and consequently the Army Act did not prevent the Special Judge from exercising his jurisdiction.

The Court further observed that Rule 3 made under section 549 of the Code of Criminal Procedure for persons subject to military law applied only to magistrates and not to a Special Judge, who is not a magistrate within the meaning of that rule. Moreover, section 7 of the Criminal Law (Amendment) Act, 1952 provides that notwithstanding anything contained in the Code of Criminal Procedure or in any other law, the offences specified in section 6(1) shall be triable only by Special Judges. The expression “any other law” includes the Army Act. The offences for which the appellant was convicted fell within those specified in section 6(1) and were therefore exclusively triable by Special Judges.

The judgment also listed the statutory provisions that were relevant to the questions presented. These included sections 5A, 5(2) and 6(r)(a) of the Prevention of Corruption Act, 1947; sections 52, 70, 125 and 127 of the Army Act, 1950; sections 6, 7, 8 and 9 of the Criminal Law (Amendment) Act, 1952; and article 77 of the Constitution of India. The Court’s analysis addressed each of the appellant’s contentions in turn and dismissed them, confirming that the trial by the Special Judge was proper and that the conviction could be sustained.

In this case the Court observed that the offences for which the appellant was convicted could be tried either by the Special judge or by a Court Martial. Section 125 of the Army Act provides that when the designated officer decides that the trial should be before a Court Martial, he may order that the accused be kept in military custody. The Court noted that in the present proceedings the designated officer did not exercise such discretion, and therefore the Army Act did not prevent the Special judge from exercising his jurisdiction. The Court further explained that Rule 3 made under section 549 of the Code of Criminal Procedure, which deals with persons subject to military law, applies only to magistrates and not to a Special judge, who is not a magistrate within the meaning of that rule. In addition, Section 7 of the Criminal Law (Amendment) Act, 1952 provides that, notwithstanding anything contained in the Code of Criminal Procedure or in any other law, the offences listed in section 6(1) shall be triable only by Special judges. The expression “any other law” includes the Army Act, and the offences for which the appellant was convicted fell within section 6(1); consequently, they were exclusively triable by a Special judge.

The Court held that the sanction for the prosecution was valid. Although Article 77 of the Constitution requires that all orders of the Central Government be expressed to be in the name of the President, the Court described this requirement as directory rather than mandatory. When an order is not issued in strict compliance with Article 77, extraneous evidence may be used to show that the order was made by the appropriate authority. In the present case, undisputed evidence established that the sanction order was issued by the Deputy Secretary on behalf of the Central Government, pursuant to the power delegated to him under the relevant rules. The Court relied on the authorities State of Bombay v. Purushottam Jog Naik, Dattareya Moreshwar Pangarkar v. State of Bombay, J. K. Gas Plant Manufacturing Co., Ltd. v. The King Emperor, P. Joseph John v. State of Travancore‑Cochin and Ghaio Mall & Sons v. State of Delhi in reaching this conclusion.

Regarding the investigation, the Court acknowledged that the conditions prescribed in section 5A of the Prevention of Corruption Act were not complied with by the Inspector of Police. Nevertheless, the Court found that the trial was not vitiated by that illegality because it did not cause any miscarriage of justice. The Court explained that the powers and jurisdiction of members of the Delhi Special Police Establishment to investigate offences in the State of Bombay had been duly extended by a government notification dated 13 August 1949, which gave general consent for all members of the establishment. The Court stressed that it was unnecessary for consent to be obtained for each individual member, and therefore the investigation remained valid. The Court followed the precedent set in H.N. Rishbud & Inder Singh v. State of Delhi.

The Court observed that the presence of a defect in the charges did not render the prosecution unlawful. It held that it was permissible to frame charges of criminal conspiracy against both public servants and persons who were not public servants, even where the acts alleged could not be separately proven against each individual. Although not every accused could be made liable for each individual offence alleged, the Court found that each of the accused persons was nevertheless guilty of the single offence of conspiracy to commit illegal acts. The Court further examined the testimony of a witness identified only as L and concluded that L’s evidence was reliable and was corroborated on material points as far as the appellant was concerned. While L was not an accomplice, the Court described him as an interested witness whose testimony required corroboration. It was held that the evidence supplied by an approver and the corroborating material could not be compartmentalised; rather, they had to be considered together. The Court noted that although certain portions of L’s testimony were not accepted, the overall version presented by L was largely accepted concerning the existence of a conspiracy and the method by which the articles were smuggled out. The Court referred to the authority in Sarwan Singh v. The State of Punjab, [1957] S.C.R. 953, for further explanation of these principles.

The matter before the Court arose under criminal appellate jurisdiction. Criminal Appeal No. 2 of 1958 was filed by the first accused under a certificate of appeal, and Criminal Appeal No. 81 of 1960 was filed by the State of Maharashtra by way of special leave. Both appeals challenged the judgment and order dated 27 July 1957 of the Bombay High Court in Criminal Appeal No. 254 of 1957, which had affirmed the conviction and sentence of the first accused while setting aside the convictions and sentences of the second and third accused. Counsel for the appellant in Criminal Appeal No. 2 of 1958 was appointed, while counsel for the respondent in the same appeal and counsel for the appellant in Criminal Appeal No. 81 of 1960 were also engaged. Additionally, counsel for respondent No. 1 and counsel for respondent No. 2 in Criminal Appeal No. 81 of 1960 were instructed. The judgment was delivered on 24 April 1961 by Justice Subba Rao. The Court noted that the two appeals – one by the first accused and the other by the State – contested the High Court’s findings that had confirmed the conviction of the first accused and had overturned the convictions of the second and third accused. In summarising the prosecution case, the Court described a depot known as the Dehu Vehicle Depot, which stored military equipment in 1944. The depot was under the command of Colonel Rao, the Chief Ordnance Officer, who reported to Colonel Sindhi, the Station Commandant, and Brigadier Wilson, the Brigadier of Ordnance, Southern Command. Major Barsay, the first accused, served as second‑in‑command of the depot and was responsible for the stores section, reporting directly to Colonel Rao. Another officer, Major Nag, also reported to Colonel Rao and managed the administration of the depot. The security duties were normally performed by Captain Pratap Singh, but during the period in question, a man named Lawrence acted as the Security Officer in place of Captain Singh. The record further mentions a person named Kochhar in connection with the case.

Accused No. 2, who had been on leave since 25 October 1954, was summoned back to duty by accused No. 1 and was placed in charge of the kit stores within the depot. In a similar manner, Avatar Singh, identified as accused No. 3 and previously employed in the Unfit Sub‑Park, was transferred by accused No. 1 to the kit stores during the period when Colonel Rao was absent on leave. Accused No. 4, known as Saighal, had formerly held the rank of colonel and had at one time served as the Station Commandant of the depot; after his retirement he resided in a bungalow situated a short distance from mile No. 92/7 on the Poona‑Bombay Road. Accused No. 5, Ramchand Gangwani, was a refugee from Sind who operated a hotel at Lonavala. Accused No. 6, Devichand, and another individual, Khemchand, who was then absconding, were the sons of accused No. 5. Accused Nos. 4 and 5 were personal friends and were also partners, together with a certain Bhagwan Parshuram of Bombay, in an enterprise called “The Bombay Lonavala Disposal Syndicate.” Within Shed No. 48 of the kit stores there existed large consignments of kits that had not been itemised and were not reflected in the depot’s official books. The accused, acting together, entered into a conspiracy to remove some of these unaccounted stores and to obtain illegal profit by selling the goods in Bombay through the agency of accused No. 4. The mastermind behind the conspiracy was identified as accused No. 1.

The scheme that was devised to achieve the object of the conspiracy may be summarised as follows. Colonel Rao was scheduled to commence leave sometime in December 1954, and Major Barsay, being the next senior officer, was to assume the duties of Chief Ordnance Officer of the depot during Colonel Rao’s absence. Consequently, the illicit removal of the stores was planned to occur while Major Barsay was acting as Chief Ordnance Officer. Colonel Rao actually commenced his leave on 11 December 1954. Prior to that, Kochhar, the second accused who was in charge of the Fit‑Park, had taken a two‑month leave of absence beginning on 25 October 1954; however, he was recalled by accused No. 1 and reinstated as officer in charge of the kit stores on 25 November 1954. Accused No. 3, Avatar Singh, who had been working in the Unfit Sub‑Park, was also shifted to the kit stores around 22 November 1954. Both of these re‑appointments were made by accused No. 1 without the consent or knowledge of Colonel Rao, who at that time had travelled to Delhi on temporary duty from 20 November to 30 November 1954. On the night of 1 December 1954 a theft of various articles occurred in the Unfit Park of the depot. Following the theft, accused No. 1 called in Lawrence, the acting Security Officer, ostensibly to discuss matters relating to the theft. During their conversation, accused No. 1 suggested to Lawrence that the valuable stores located in Shed No. 48 could be smuggled out, indicating that the large amounts expected to be derived from the sale of those stores might be shared among the conspirators.

In this case, the conspirators devised a scheme in which the profit from the sale of stolen articles would be divided among them, including Lawrence. To persuade Lawrence to join the plot, accused No 1 suggested that Colonel Rao suspected Lawrence’s involvement in the earlier theft. A few days later accused No 2 confirmed the plan that Maj‑Maj Barsay had outlined. According to that plan, a board of officers would be appointed to itemise the “Specialist Boxed Kits” stored in Shed 17. Once the board began its work, trucks would shuttle between Shed 48 and Shed 17, and during these movements two or three trucks carrying valuable stores would be taken out through the main gate under the guise of being back‑loaded to the Return Stores Sub‑Depot. Maj‑Maj Barsay also intended to escort Colonel Rao to Shed 48 and explain that the boxes contained only a few items, so that Rao would not be surprised by the outcome of the itemisation when he returned from leave. The conspirators initially aimed to execute the scheme on 16, 17 and 18 December 1954, but the plan could not be carried out on those days because Captain Kapoor was frequently inspecting the itemisation area.

On 18 December 1954 a meeting was held at Maj‑Maj Barsay’s bungalow attended by accused Nos 1 to 4 and Lawrence, where the details of the operation to be carried out on 20 December 1954 were finalised. Kochhar informed the conspirators that he had briefed Jamadar Kundanlal, and Lawrence added that, following Kochhar’s suggestion, Jamadar Kundanlal had already been detailed for day duty at the main gate for the following week. Maj‑Maj Barsay agreed to have a driver of his confidence assigned to one of the trucks allocated to the Kit Stores, and he promised to give orders to Kochhar on the morning of 20 December 1954, in the presence of all, directing that the itemised kits be transferred to Shed 26 ostensibly for conditioning and preservation. This transfer would allow accused No 3, Avatar Singh, to load the stores from Shed 17. The first truck trip would carry ordinary stores, which the conspirators did not target, while the second trip would carry valuable stores intended to be smuggled out through the gate. Maj‑Maj Barsay also undertook to summon Maj‑Maj Nag to his office on 20 December 1954 and, in Maj‑Maj Nag’s presence, issue orders to Lawrence to go to Dehu Ordnance Depot and retrieve fire hoses that had been sent there for repairs. Kochhar consented to prepare a false voucher on the morning of 20 December 1954, and Lawrence agreed to provide a counterfeit gate‑pass. Accused No 4, Saighal,

Saighal consented to keep a lorry and a number of laborers near his bungalow for the purpose of transshipping the stores. On the evening of 19 December 1954, Lawrence visited Saighal’s residence, where Saighal pointed out the exact location intended for the transshipment of the stores. After dinner, Lawrence went to the Depot at nine p.m., where Officer Shrinivasan told him that Jamadar Kundanlal, due on duty at the main gate on 20 December, was ill and on three days’ leave. Lawrence then traveled to Major Barsay bungalow but did not find him there, and subsequently visited Jamadar Kundanlal’s residence attempting to persuade him to resume his gate duties on 20 December. On the morning of 20 December, at about 9.15 a.m., Major Barsay called Havaldar Pillay and ordered him to allocate a vehicle to the Kit Stores and to assign driver Ramban to it. Pillay complied, and at about ten a.m. Major Barsay called Major Nag and Lawrence to his office, where, in Nag’s presence, he instructed Lawrence to go to Dehu Ordnance Depot to obtain the fire hoses. After Major Nag departed, Lawrence reported to Major Barsay that Jamadar Kundanlal had reported himself sick and that a man named Godse was now stationed at the main gate. Major Barsay then proposed that Jamadar Jogendrasingh replace Godse at the main gate and informed Lawrence that driver Ramban had been selected to operate the vehicle intended for smuggling the stores. At approximately eleven a.m., Lawrence met Major Barsay and Kochhar near Shed No. 48, where Major Barsay confirmed that the scheme would proceed as scheduled. Subsequently, Kochhar and Lawrence proceeded to Shed No. 17, where Accused No. 3, Avatar Singh, was present; Kochhar told Avatar Singh that no voucher had been prepared because it was unnecessary. Lawrence handed an old gate‑pass to Avatar Singh, and Truck No. D.D. 5963 was first loaded with ordinary stores and dispatched to Shed No. 26. During this interval, Lawrence returned to the Depot, requested that Godse assume duties at the Unfit Sub‑Park gate, and ordered Jamadar Jogendrasingh to replace Godse at the main gate. When Jamadar Jogendrasingh refused to accept the gate‑pass from the driver and declined to clear the vehicle without recording the transaction in the Vehicles In and Out Register, Lawrence gave him a written order. The order instructed Jogendrasingh not to show or hand over the document to anyone except himself on his return or to Major Nag.

Lawrence had earlier given a written instruction that the order should be shown to no one except himself upon his return or to Major Nag. At about one o’clock in the afternoon Major Barsay told Lawrence that he was uneasy about the success of the plan because he had observed the Station Commandant’s car near the Barrack Office. Consequently Major Barsay instructed Lawrence not to move the vehicle until that car had departed. Lawrence accepted the instruction and proceeded to Shed No 17 where Avatarsingh was present. There Avatarsingh loaded the truck, handed the fraudulent gate‑pass and the duty‑slip of the vehicle to Ramban, and asked Lawrence to enter the truck at that location instead of near the main gate as originally planned. After Lawrence boarded, the truck left for the main gate and arrived at approximately one forty minutes past one. At the main gate Ramban presented the duty‑slip together with the bogus gate‑pass to Jamadar Jogendrasingh. Jamadar informed Lawrence that Major Barsay had left a message for him stating “not to do it on that day.” Ignoring this directive, Lawrence drove the vehicle out of the gate. Near Talegaon a civilian lorry bearing registration number BYL 3289 was positioned by accused No 4, accused No 5 and accused No 6 for the purpose of transshipping the stores. The military truck was driven to that spot where the two lorries were parked back‑to‑back. Accused No 6, the absconding accused Khemchand and two additional persons began transferring the stores from the military lorry to the civilian lorry. At that moment police officers arrived on the scene and stopped any further execution of the conspirators’ plan. The prosecution also alleged that Lawrence had apparently joined the conspiracy with the aim of exposing the culprits, and that he had been informing senior officers and the police both orally and in writing as significant events unfolded.

For clarity, the prosecution asked the Court to read the charges framed by the Special Judge, Poona. The first charge declares that accused No 1, Major E G Barsay, while acting as Chief Ordnance Officer, D U V, accused No 2, H S Kochhar, while serving as Civilian Group Officer, D U V, accused No 3, Avatarsingh Seva Singh, then employed as Civilian Stores Keeper, D U V, accused No 4, W S Saighal, a released Lieutenant Colonel, accused No 5, Ramchand Pahlajrai Gangawani, accused No 6, Deviprasad Ramchand Gangawani, and the absconding accused Khemchand, between about October 1954 and December 1954, were parties to a criminal conspiracy in the Dehu Road area. The conspiracy, as alleged, involved an agreement to commit illegal acts, the first of which was to dishonestly, fraudulently misappropriate or otherwise convert to their own use the military stores lying in the Vehicle Depot at Dehu Road, stores that were entrusted to or under the charge of Major Barsay, H S Kochhar and Avatarsingh Seva Singh.

In the charge sheet, the Special Judge recorded that the accused, namely Major E. G. Barsay acting as Chief Ordnance Officer, H. S. Kochhar serving as Civilian Group Officer, Avatarsingh Seva Singh as Civilian Stores Keeper, W. S. Saighal a former Lieutenant Colonel, Ramchand Pahalajrai Gangawani, Deviprasad Ramchand Gangawani, and the absconding accused Khemchand Ramchand Gangawani, had entered into a criminal conspiracy between October 1954 and December 1954. The conspiracy, as alleged, involved three principal steps. First, the conspirators, while holding public‑servant positions and exercising control over the military stores situated in the Vehicle Depot at Dehu Road, were said to have dishonestly or fraudulently misappropriated those stores for their own use, thereby converting property entrusted to them. Second, they were alleged to have obtained the same stores by corrupt or illegal means, abusing their official positions for personal benefit or for the benefit of other persons. Third, they were charged with committing theft and receiving stolen property in furtherance of the agreement. The charge sheet asserted that these acts collectively constituted an offence punishable under Section 120‑B of the Indian Penal Code and fell within the jurisdiction of the Special Judge. The same schedule of items, referred to as Schedule ‘A’, listed the particular military stores that were the subject of the alleged conspiracy. The charge further alleged that Khemchand Ramchand Gangawani, acting jointly with the others and in furtherance of their common intention, participated in the said conspiracy during the same period.

The indictment specified that on 20 December 1954 the accused, acting together and sharing a common intention, dishonestly or fraudulently appropriated for their own use the government property described in Schedule ‘A’, which had been entrusted to or was under the control of the first three accused who were public servants. By doing so, they were said to have committed an offence under Section 5(1)(c) of the Prevention of Corruption Act, punishable under Section 5(2) of that Act, read in conjunction with Section 34 of the Indian Penal Code. In addition, the charge alleged that the absconding Khemchand Ramchand Gangawani, also acting in pursuance of the conspiracy and abusing his public‑servant position, obtained the same valuable military stores for himself or for others by corrupt or illegal means, an act constituting an offence under Section 5(1)(d) of the Prevention of Corruption Act, also punishable under Section 5(2) read with Section 34 of the Indian Penal Code. Furthermore, the charge asserted that on the same date, in furtherance of the common intention, the accused collectively and fraudulently removed the military stores listed in Schedule ‘A’ from the Dehu Road Depot, an act that attracted liability under either Section 381 or Section 411 of the Indian Penal Code, again read with Section 34 of the Code. The principal defence raised by the accused was that, owing to ongoing thefts in the depot, the reputation of Lawrence, the Security Officer, had been severely damaged, and that this circumstance formed the backdrop to their alleged actions.

In the matter before the Special Judge, the defence contended that the Security Officer, Lawrence, had fabricated a large‑scale fraud scheme in order to restore his own reputation and to win favour with his superiors. The defence alleged that Lawrence had “abducted” the truck carrying the military stores, had repeatedly given false statements to senior officers, and had concocted a version of events to support a theory of conspiracy that implicated the accused, including the Acting Chief Ordnance Officer of the depot. The defence maintained that all of the accused were innocent and that it was Lawrence who was responsible for the alleged theft.

After examining the evidence, the Special Judge held that the charges were fully made out against each of the accused. He rejected the technical objections raised concerning the framing of the charges, the validity of the investigation conducted by the investigating officer, and the sanction granted by the Central Government for prosecuting the accused. The Judge observed that, prima facie, there was no sufficient ground to discard Lawrence’s testimony; however, he classified Lawrence’s testimony as “interested evidence” and required that it be supported by independent corroboration before it could be relied upon. In his own words, the Judge stated: “Shri Lawrence’s evidence can, therefore, be accepted and relied upon, only if it is corroborated by other independent evidence and circumstances in the case.” The Judge found that ample independent evidence and surrounding circumstances corroborated Lawrence’s statements.

Having considered the entire record, the Special Judge concluded that the prosecution had proved beyond a reasonable doubt that each of the six accused had performed overt acts in furtherance of the criminal conspiracy alleged against them. He expressed this view by noting: “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.” Consequently, the Judge held that accused numbers one through six were guilty of the principal offence and convicted all of them under section 120‑B of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947, read with section 34 of the Indian Penal Code. He imposed varying terms of imprisonment and fines on each accused.

The accused subsequently filed five separate appeals before the Bombay High Court challenging their convictions and sentences. A division bench of the High Court set aside the convictions of accused numbers two, three, five and six, while confirming the convictions of accused numbers one and four. The High Court also dismissed all technical objections raised by the appellants regarding certain portions of the second, third and fourth charges. Regarding the second and third sub‑charges, the High Court accepted the contention that accused numbers four, five and six could not be charged under sections 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act because they were not public servants; nevertheless, it held that it was appropriate to frame a charge against them under section 109 of the Indian Penal Code for abetting the commission of the offence of criminal misconduct.

In the appeal, the Court examined the charges relating to sections 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act that had been alleged to have been committed by accused persons 1, 2 and 3. The High Court concluded that because the original charge was irregular, the accused were not prejudiced by that defect; consequently it modified the allegation to a charge under section 109 of the Indian Penal Code, read in conjunction with sections 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act. Regarding the final head of the charge, the Court held that it was improper to charge all the accused with an offence under section 381 of the Indian Penal Code, and that the charge under section 411 of the Indian Penal Code would also be unsuitable for accused persons 1 to 3. However, the Court found that for accused persons 4, 5 and 6 the charge under section 411, read with section 34 of the Indian Penal Code, was entirely appropriate.

Before the High Court, counsel for the accused and counsel for the State requested that the evidence of Lawrence be examined on the basis that he was a decoy and a trap witness. The High Court agreed with the Special Judge that Lawrence’s testimony should be treated as that of a trap witness and that reliance upon it without independent corroboration would be inadvisable. The Court clarified that the required corroboration need not verify every detail offered by an accomplice or approver; rather, it must be sufficient to convince the Court that the accomplice’s evidence is truthful and safe to act upon. The Court summarized its position by stating that established decisions made it clear that Lawrence’s evidence, being that of a decoy or trap witness, could not be relied upon without independent corroboration. Subsequently, the Judges of the High Court scrutinised Lawrence’s testimony in detail, discarding portions that were contradictory or inconsistent with other proven facts, while accepting the overall narrative of conspiracy to the extent that it was supported by other unimpeachable evidence and circumstances. After an exhaustive consideration, the Judges concluded that they accepted Lawrence’s evidence, found his account probable and true, and affirmed that the trial Court’s finding of a conspiracy, as alleged by the prosecution to smuggle goods out of the Dehu Vehicles Depot, was justified by the record. The Judges then turned to the question of which accused participated in the conspiracy, beginning their analysis with accused number 1.

The Court examined the evidence against each of the accused and reached specific conclusions. Regarding the first accused, the Court found that the material placed before it was sufficiently strong to link him to the conspiracy, and accordingly it affirmed the trial‑court’s determination that he had participated in the plan to smuggle military goods from the depot. Concerning the second accused, the Court held that the record did not contain enough proof to show that he was a member of the alleged conspiracy; because he could not be regarded as part of the conspiracy, the Court also concluded that he could not be found guilty of criminal misconduct under section 5(1)(c) and (d) of the Prevention of Corruption Act, 1947. In the case of the third accused, the Court expressed the view that the prosecution had failed to establish the charge beyond reasonable doubt, and therefore the third accused could not be held liable for either criminal conspiracy or criminal misconduct. For the fourth accused, the Court accepted the findings of the Special Judge, noting that independent and reliable evidence corroborated the testimony of the witness Lawrence with respect to this individual. Turning to the fifth and sixth accused, the Court observed that the evidence against them was extremely weak; as a result it set aside both the convictions and the sentences that had been imposed on them. In sum, the Court confirmed the convictions and sentences of the first and fourth accused, while it overturned the convictions of the second, third, fifth and sixth accused. After the High Court rendered its decision, the fourth accused died. The first accused subsequently filed Criminal Appeal No. 2 of 1958 challenging the conviction and sentence affirmed by the High Court, and the State filed Criminal Appeal No. 81 of 1960 contesting the acquittals of the second and third accused.

The Court then turned to the appeal filed by the first accused. Counsel for the appellant reiterated every technical point that had been raised, without success, before both the Special Judge and the High Court. At the outset, the Court indicated that it would first address those technical contentions before proceeding to the merits of the case. The initial contention advanced by counsel was that the Special Judge of Poona lacked jurisdiction to take cognizance of the offences alleged against the accused, asserting that such offences should have been tried exclusively by a court‑martial under the Army Act. Counsel summarized the argument by stating that the Army Act, 1950 (Act 46 of 1950), created new offences, and that section 52 of that Act defined the offences for which the present accused were charged, prescribing a court‑martial as the exclusive forum for their trial. By necessary implication, counsel argued, the ordinary criminal courts were debarred from trying those offences. To reinforce this position, counsel cited section 69 of the Army Act, contending that it provided that offences committed by army personnel, which might otherwise be tried by regular courts, were to be deemed offences against the Army Act itself, thereby limiting jurisdiction to the military tribunal.

In the appeal, counsel argued that a fictional provision treated offences committed by army personnel, which were ordinarily triable by civil courts, as offences under the Army Act. The argument emphasized that the distinction between offences directly created by the Army Act and those deemed to be offences under the Act provided a clear indication of the proper construction of the statute. It was contended that offences falling in the first category were exclusively within the jurisdiction of a court‑martial, whereas offences in the second category were subject to the concurrent jurisdiction of both a court‑martial and an ordinary criminal court. From this premise, the counsel concluded that the statutory mechanisms intended to resolve jurisdictional conflicts applied only to the second category of offences. Assuming that this contention was erroneous, counsel further submitted that section 126 of the Army Act employed unequivocal language, stating that a criminal court could not try an offence defined under the Act unless the specific conditions of section 125, namely the requisite notice to the officer, were strictly complied with. To evaluate this submission, it was necessary to examine the detailed provisions of the Army Act. Section 2 enumerates the various categories of army personnel subject to the Act. Section 3(ii) defines a “civil offence” as an offence triable by a criminal court. Section 3(vii) defines “court‑martial” as a court‑martial convened under the Act. Section 3(viii) defines “criminal court” as any ordinary criminal court in India, excluding the State of Jammu and Kashmir. Section 3(xvii) defines “offence” as any act or omission punishable under the Act, expressly including a civil offence. Section 3(xxv) declares that any word used but not defined in the Act, yet defined in the Indian Penal Code, shall be given the meaning assigned by that Code. Chapter VI, comprising sections 34 to 70, bears the heading “Offences,” and, as previously noted, the term “offence” includes both acts punishable under the Act and civil offences. Sections 34 to 68 set out the offences against the Act that are triable by court‑martial and prescribe the corresponding punishments. Section 69 provides that any person subject to the Act who, anywhere in or beyond India, commits a civil offence shall be deemed guilty of an offence against the Act, may be charged under this section, and shall be tried by a court‑martial, with punishment as provided by any law in force in India or a lesser punishment as stipulated in the Act. Section 70 specifies that a person subject to the Act who commits murder, culpable homicide not amounting to murder, or rape against a person not subject to military law shall not be deemed guilty of an offence against the Act and shall not be tried by a court‑martial.

The provision states that an offence consisting of murder, culpable homicide not amounting to murder, or rape committed by a person subject to naval or air‑force law against a person who is not subject to military law shall not be treated as an offence under the Act and therefore shall not be tried by a court‑martial. The Court observed that three exceptions to this rule exist, but it indicated that those exceptions were not relevant to the present discussion. In brief, the Chapter classifies offences into three distinct groups. The first group comprises offences committed by a person who is subject to the Act and that are triable by a court‑martial, with specific punishments expressly provided for in the Act. The second group consists of civil offences committed by the same person, whether committed within India or beyond its boundaries, which are deemed to be offences under the Act; if such an offence is prosecuted under section 69 of the Act, it becomes triable by a court‑martial. The third group includes offences of murder, of culpable homicide not amounting to murder, or of rape committed by a person subject to the Act against an individual who is not subject to military law. Except for a few limited exceptions, offences in this third group are not within the jurisdiction of a court‑martial and must instead be tried before ordinary criminal courts. This categorisation of offences and of the tribunals that may try them inevitably creates a jurisdictional conflict. Where an offence originates specifically from the Army Act—such as those created by sections 34, 35, 36, 37 and similar provisions—it falls exclusively within the jurisdiction of a court‑martial. However, where a civil offence is also deemed to be an offence under the Act, both an ordinary criminal court and a court‑martial possess concurrent jurisdiction to try the accused. The statute anticipates and regulates such a situation through sections 125 and 126. Section 125 provides that when a criminal court and a court‑martial each have jurisdiction over an offence, the officer commanding the army, corps, division or independent brigade in which the accused is serving—or any other officer prescribed by the regulations—has the discretion to decide before which court the proceedings shall be instituted, and if the officer decides that the case should be tried by a court‑martial, he must order that the accused be detained in military custody. Section 126(1) further provides that when a criminal court, having jurisdiction, believes that the proceedings should be instituted before itself, it may, by way of a written notice, require the officer mentioned in section 125, at his option, either to surrender the offender to the nearest magistrate for prosecution in accordance with the law or to postpone the proceedings pending a reference to the Central Government. Clause (2) of section 126 adds that in every such case the officer must either comply with the requisition and deliver the offender, or immediately refer the question of which court should hear the proceedings to the Central Government, whose determination shall be final.

In that provision, the Central Government was identified as the authority whose decision on a reference would be final. Section 125 was understood to assume that, for a particular offence, both a civilian criminal court and a court‑martial possessed concurrent jurisdiction. The Court explained that such a circumstance could arise where an act or omission was punishable under the Army Act and simultaneously under any other law that was in force in India. It could also arise where an offence was deemed to fall within the ambit of the Army Act. According to the scheme created by sections 125 and 126, the first step was left to the discretion of the officer named in section 125. That officer was authorized to decide before which forum – a court‑martial or a civilian criminal court – the proceedings should be instituted. If the officer elected that the case should proceed before a court‑martial, the accused was required to be placed in military custody. Conversely, if a criminal court considered that the offence ought to be tried before it, the court could issue, under section 126, a written notice directing the officer either to deliver the accused to the nearest magistrate for trial in accordance with the law, or to suspend the proceedings while a reference was made to the Central Government. Upon receiving such a requisition, the officer had two options: he could either hand the offender over to the civilian court as directed, or he could refer the question of the appropriate forum to the Central Government, whose order on the matter would be conclusive. The Court held that these two sections together established a satisfactory mechanism for resolving any conflict of jurisdiction, taking into account the practical exigencies of the situation.

The Court further noted that section 127 of the Army Act allowed for successive trials by a court‑martial and by a civilian criminal court for the same offence. Sub‑section (1) of that section expressly permitted a person who had been convicted or acquitted by a court‑martial, with prior sanction of the Central Government, to be tried again by a civilian criminal court for the same offence or on the same facts. However, sub‑section (2) imposed a limitation concerning punishment: when the civilian court imposed a sentence, it had to consider any punishment that the offender had already undergone for that offence. The Court described the overall scheme of the Act as self‑evident. It applied to offences committed by army personnel defined in section 2 of the Act, created new offences with specified penalties, increased the punishments for pre‑existing offences, and allowed civil offences, by legal fiction, to be treated as offences under the Act. This scheme, according to the Court, provided a satisfactory machinery for resolving jurisdictional conflicts. Moreover, subject to certain conditions, the Act enabled an accused to be tried successively by both a court‑martial and a civilian criminal court. The Court observed that the Act did not expressly prohibit civilian courts from exercising jurisdiction over acts or omissions that were punishable under the Army Act when those acts were also punishable under any other law in force in India, and no prohibition could be inferred by necessary implication. Sections 125, 126 and 127 were interpreted to exclude such an inference, for they explicitly provided mechanisms not only for resolving jurisdictional conflicts between a civilian criminal court and a court‑martial but also for permitting successive trials of the same offence.

The Court observed that sections 125 and 126 of the Army Act were designed not merely to allow a court‑martial and a civil court to try the same offence, but also to permit successive trials of the same accused with respect to that offence. Applying that principle to the present facts, the Court turned to the provisions of section 52 of the Act. Section 52 provides that any person subject to the Act who steals property belonging to the Government, to any military, naval or air‑force mess, band or institution, or to any person governed by military, naval or air‑force law, or who dishonestly misappropriates or converts such property to his own use, or who commits criminal breach of trust in respect of such property, or who engages in any other act with the intention of defrauding another, causing wrongful gain to one party or wrongful loss to another, shall, upon conviction by a court‑martial, be liable to imprisonment for a term which may extend to ten years or to a lesser punishment as specified in the Act. The Court further noted that section 2 (xxv) declares that every word or expression used in the Army Act but not defined therein, but defined in the Indian Penal Code, shall be deemed to have the meaning assigned to it in that Code. This provision does not create any new offences; rather, it merely prescribes higher punishments when offences defined elsewhere are tried before a court‑martial.

The appellant and the other accused were charged, among other things, with participation in a criminal conspiracy to dishonestly or fraudulently misappropriate, or otherwise convert to their own use, military stores, and with the actual dishonest or fraudulent misappropriation of those stores. The Court pointed out that these acts constitute offences under the Indian Penal Code and under the Prevention of Corruption Act, and they also fall within the scope of section 52 of the Army Act. Although the specific offence of conspiracy is not listed in section 52, the Court held that, being a civil offence, it is deemed to be an offence against the Army Act by virtue of section 69 of the same Act. Consequently, the offences were triable both by an ordinary criminal court that possessed jurisdiction over such offences and by a court‑martial. In such circumstances, sections 125 and 126 were clearly intended to operate. However, the Court noted that the designated officer under section 125 had not exercised his discretion to decide whether the proceedings should be instituted before a court‑martial or before a civil court. Because the officer had refrained from making such a choice, there was no occasion for the criminal court to invoke the provisions of section 126. The second part of section 126(1) enables a criminal court to issue a notice to the officer designated in section 125, requiring the delivery of the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government. The Court explained that this sub‑section presupposes that the designated officer has already decided that the trial shall proceed before a court‑martial and has ordered the accused to be detained in military custody. In the absence of such a decision, the Army Act did not bar the criminal court from exercising its ordinary jurisdiction.

The Court noted that even if a decision had been taken to refer the case to a court‑martial, the Army Act could not bar a criminal court from exercising its ordinary jurisdiction in the manner prescribed by law. It then set out the proper way to address the issue. The appellant and the other accused were found to have committed offences punishable under the Indian Penal Code and the Prevention of Corruption Act. By operation of section 7 of the Criminal Law (Amendment) Act, 1952, those offences were triable by a special judge appointed under that Act. The special judge thus appointed would possess jurisdiction to try the offences unless the Army Act expressly, or by necessary implication, excluded the offences alleged to have been committed by the appellant and the other accused from the jurisdiction of that special court. The Court’s examination of the relevant provisions of the Army Act indicated that no such exclusion existed; on the contrary, the Act contained a clear and unambiguous indication that the special court retained its jurisdiction. At this point the Court allowed the argument presented by counsel for the appellant to be noted. The second limb of counsel’s argument relied upon section 549 of the Code of Criminal Procedure. That section provides that “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 Court observed that the Central Government had indeed exercised the power conferred by that section and had issued rules. However, no rule had been made mandating that the offences presently before the Court be tried solely by a court‑martial. Counsel for the appellant instead relied upon rule 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 (b) he is moved thereto by such authority.” The Court held that this rule could apply only if the special judge created under the Criminal Law (Amendment) Act, 1952, qualified as a magistrate within the meaning of the rule. It further explained that a special judge is appointed under section 6(1) of that Act to try the offences specified therein, and that section 6(2) stipulates 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).” Consequently, the special judge does not fall within the category of magistrate contemplated by rule 3, and the rule therefore cannot be invoked to deprive the special judge of jurisdiction over the offences charged.

The Court noted that section eight, subsection one of the Criminal Law (Amendment) Act states that a Special Judge is authorised to take cognizance of offences even when the accused has not been sent to him for trial, and that, when trying the accused, the Special Judge must adhere to the procedure laid down in the Code of Criminal Procedure, 1898 for the trial of warrant cases by magistrates. The Court further explained that subsection three of the same section provides that, except as saved by subsections one and two, the provisions of the Code of Criminal Procedure, 1898 shall apply to proceedings before a Special Judge to the extent that they are not inconsistent with the Act; for the purposes of those provisions, the Court of the Special Judge is to be treated as a Court of session trying cases without a jury or assessors, and the person conducting the prosecution before a Special Judge is to be regarded as a public prosecutor. Section nine was then examined, which confers on the High Court the power to exercise, insofar as they are applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 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 territorial jurisdiction of the High Court. These statutory provisions therefore equate a Special Judge with a Sessions Judge and make the procedural rules applicable to a Sessions Judge, insofar as they are not inconsistent with the Act, applicable to a Special Judge. The argument that section eight, subsection one places the Special Judge on the same footing as a magistrate and consequently that rule three of the rules framed under section 549 of the Code applies to a Special Judge was rejected. The Court observed that this argument overlooks the limited purpose for which subsection one was enacted. Section eight of the Act creates a clear distinction between the power of a Special Judge to take cognizance of an offence and the procedure to be followed in trying the case. In the trial of accused persons, the Special Judge is bound to follow the procedure prescribed by the Code for the trial of warrant cases; the warrant procedure is incorporated in the Act by reference to the Code. Chapter XXI of the Code of Criminal Procedure contains the warrant‑case procedure, and section 549 is not a provision of that chapter, nor does it empower the Central Government to make rules altering the warrant procedure. Consequently, the Court held that the fact that the Special Judge must follow the warrant‑case procedure does not transform him into a magistrate within the meaning of rule three, and that section eight(1) maintains a clear separation between jurisdiction and procedure.

The Court examined whether a special judge could be classified as a magistrate within the meaning of rule (3), and observed that if that classification were accepted, rule (3) would not apply to the trial of an army personnel by a special judge. The Court then identified a much stronger difficulty in the argument presented by counsel for the petitioner. Section 7 of the Criminal Law (Amendment) Act, 1952, states: “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.” The Court noted that the phrase “any other law” undoubtedly embraces the Army Act. It further observed that the offences presently before the Court are unquestionably offences specified in subsection (1) of section 6 of the Criminal Law (Amendment) Act, and that the non‑obstante clause in section 7 plainly confers jurisdiction upon a special judge to try persons who commit those offences. Counsel, however, argued that because the Army Act is a special enactment, the provision in section 7 of the general Act could not deprive a court‑martial of the jurisdiction that the special Act accorded for the same offences. The Court explained that such a proposition might be relevant where a conflict of jurisdiction arises between a general Act and a special Act without an explicit exclusion of the jurisdiction granted by the special Act. But the Court held that the principle does not apply where the general Act expressly grants jurisdiction to a particular tribunal for specified offences, to the exclusion of anything contained in any other law. In that circumstance, the legislative intention is clear and unambiguous, and no interpretative rule is required, because interpretative rules exist only to discover legislative intent. Counsel further contended that section 7 gives exclusive jurisdiction to a special judge only for offences listed in subsection (1) of section 6 and that those offences do not include those under section 52 of the Army Act. The Court rejected this contention as fallacious. It pointed out that certain acts or omissions constitute offences under section 6(1) of the Criminal Law (Amendment) Act, 1952, and that, under section 7, such offences are exclusively triable by a special judge. In the present case, the accused were charged with offences that fall squarely within the ambit of subsection 6 of the Amendment Act, and consequently the special judge possessed clear jurisdiction to try the accused for those offences. The Court emphasized that the mere possibility that the same acts or omissions might also constitute an offence under section 52 of the Army Act is irrelevant, because jurisdiction had been exclusively vested in the special judge notwithstanding any other law. Accordingly, the special judge alone had jurisdiction to try the offences covered by section 6 of the Criminal Law (Amendment) Act, 1952. At this stage,

Another argument raised by counsel may be considered. Counsel contended that several of the offences for which the accused were charged in the present matter did not fall within the offences listed in section 6 of the Criminal Law (Amendment) Act, 1952. The Court observed that this objection is expressly addressed by section 7(b) of the same Act, which provides that when a special judge is trying any case, that judge may also try any offence that is not one of those specified in section 6, provided that the accused may, under the Code of Criminal Procedure, 1898, be charged with such offence in the same trial. The Court then turned to the second contention put forward by the prosecution, namely, that the prosecution had not demonstrated that the Central Government had given the required sanction to prosecute the appellant under section 6(1) of the Prevention of Corruption Act. Section 6(1)(a) of the Prevention of Corruption Act states that no court shall take cognizance of an offence punishable under sections 161, 164 or 165 of the Indian Penal Code, or under subsection (2) of section 5 of that Act, alleged to have been committed by a public servant, unless the court has first obtained the prior sanction. In the case of a person employed in connection with the affairs of the Union and not removable from office except by or with the sanction of the Central Government, such sanction must be that of the Central Government. It was a well‑settled fact that the appellant was a public servant within the meaning of that subsection, and consequently his prosecution could not proceed without the Central Government’s sanction. The sanction document produced in this case read, in part, “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. Signed, M. Gopala Menon, Deputy Secretary to the Government of India.” On its face, the order granting the necessary sanction appeared to have been issued in the name of the Central Government and was signed by the Deputy Secretary to the Government of India in the Ministry of Home Affairs. The witness identified as PW 36, an assistant in the Ministry of Home Affairs, New Delhi, testified regarding this document. He explained that the papers relating to the present case had been forwarded to the Home Ministry by the Inspector General of Police, Special Police Establishment, New Delhi, for the purpose of obtaining the required sanction. He further stated that the papers were placed before the Deputy Secretary, that the Deputy Secretary possessed the authority to accord sanction on behalf of the President, and that the sanction was given under the Deputy Secretary’s own signature. The Court noted that this testimony was followed by cross‑examination.

The witness testified that he was unable to state whether the Deputy Secretary’s signature on the sanction order represented an exercise of his own authority or merely served as an authentication of an order issued by the President. Despite this uncertainty, the uncontradicted evidence established that the Deputy Secretary possessed the competence to grant sanction on behalf of the President and that he exercised that power in issuing the order, presumably under the rules framed by the President for that purpose. The statement made by the witness during cross‑examination did not conflict with his earlier testimony given in the examination‑in‑chief. It is possible that the Deputy Secretary held authority to issue certain orders in his personal capacity and also to authenticate orders issued in the President’s name. However, in the present case the witness clearly affirmed that the Deputy Secretary had the authority to accord sanction in his own right. Moreover, the sanction order, when examined on its face, did not bear any indication that it was merely an authentication of a presidential order. Consequently, the Court must conclude that the sanction was granted by the Deputy Secretary exercising his own authority.

In this context, an argument was raised relying on Article 77 of the Constitution. Clause (1) of Article 77 provides that all executive actions of the Government of India shall be expressed to be taken in the name of the President. Clause (2) stipulates that orders and other instruments made and executed in the President’s name shall be authenticated in the manner prescribed by rules made by the President, and that the validity of an order so authenticated shall not be questioned on the ground that it is not an order or instrument made or executed by the President. Under the General Clauses Act, the term “President” is interpreted to mean the Central Government. The contention, therefore, was that because the sanction order was not expressed to be made in the name of the President, the sanction was void. This argument invoked the constitutional provisions and their judicial interpretation, particularly the relationship between Article 77 and the corresponding provision in Article 166.

The Court noted that both Article 77 and Article 166 have previously been examined by this Court. The validity of a detention order issued by the Bombay Government under section 3 of the Preventive Detention Act, 1950, was considered in The State of Bombay v. Pushottam Jog Naik, reported in the 1952 volume of the Supreme Court Reports at page 674. In that case, the order’s body reflected the “satisfaction” of the Government of Bombay, and the order concluded with the signature of the Secretary to the Government of Bombay, Home Department, under the words “By order of the Governor of Bombay”. The contention there was that the order was defective because it did not expressly state that it was made in the name of the Governor as required by Article 166(1) of the Constitution, and consequently it would not be protected by clause (2) of that article. Speaking for the Court, Justice Bose observed that the Constitution does not demand a “magic incantation” in a fixed set of words; rather, the substance of the constitutional requirement must be present. This judgment established that the essential inquiry is whether the order, in substance, indicates that it was taken in the name of the Governor. Applying a similar construction, the Court in the present matter examined whether the sanction order, by its substance, demonstrated that it was issued in the name of the President or, alternatively, that the Deputy Secretary acted under his own authority. The analysis therefore turned on the substantive content of the order rather than on a literal formula of words.

The Court explained that the Constitution does not require a set formula of words; what is essential is whether the substance of the constitutional requirements is present. Accordingly, the judgment emphasized that the substance of the order, rather than its precise wording, must be examined. Applying this principle to the order that was before the Court, the Court considered the definition of “State Government” contained in the General Clauses Act and noted the concluding words “By order of the Governor of Bombay.” The Court concluded that, on this construction, the order was expressed to have been taken in the name of the Governor. In the earlier case of Dattatreya Moreshwar Pangarkar v. The State of Bombay, reported in (1) [1952] S.C.R. 674 and (2) [1952] S.C.R. 612, an order made under the Preventive Detention Act, 1950, was challenged on the ground that it did not comply with the provisions of Article 166(1) of the Constitution. In that case the order had been made in the name of the Government and signed by a person named Kharkar on behalf of the Secretary to the Government of Bombay, Home Department. Justice Das, then speaking, referred to the Federal Court decision in J. K. Gas Plant Manufacturing Co. (Rampur) Ltd. v. The King‑Emperor and observed at page 625 that 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 was not an order made by the Governor. He added that if the requirements of that article are not complied with, the State cannot claim the immunity, but such non‑compliance does not vitiate the order itself. The learned judge therefore held that the provisions of Article 166 are directory rather than mandatory. This view was adopted later by this Court in P. Joseph John v. The State of Travancore‑Cochin. In that matter the “show‑cause notice” issued under Article 311 of the Constitution was contested on the basis that it violated Article 166. The notice had been issued on behalf of the Government and signed by the Chief Secretary, who, under the rules of business framed by the Rajpramukh, bore the portfolio of “service and appointments” at the Secretariat level. The Court held that the notice was issued in substantial compliance with the directory provisions of Article 166. The most recent decision on the point is Ghaio Mall & Sons v. The State of Delhi. There the question was whether a communication issued by the Under‑Secretary, Finance, Government of Delhi State complied with the requirements of Article 166. This Court held that the communication did not satisfy the provisions of Article 166 and further found that, as a matter of fact, the order had not been made by the Chief Commissioner. When the decision in Dattatreya Moreshwar Pangarkar’s case was considered, the Court reiterated these principles.

In the earlier judgment that was cited, this Court observed at page 1439 the following: “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 decisions that followed this observation have settled authoritatively how the provisions of Article 166 of the Constitution are to be understood. In short, the law stands as follows. Article 166 clause (1) is only a directory provision. Consequently, even if an order that is now being challenged was not executed in strict conformity with the requirements of Article 166(1), the party opposing the order may still demonstrate, by evidence taken from sources other than the document itself, that the order originated from the proper authority. When an order is issued in the name of the Governor and is authenticated in the manner prescribed by rule (2) of the same article, the law creates an irrebuttable presumption that the Governor himself made or executed the order. However, any failure to comply with that rule does not render the order void; it merely removes the possibility of relying on the irrebuttable presumption. The removal of that presumption does not stop a party from establishing, through other competent evidence, that the order was in fact made by the appropriate authority. Article 77, which governs the conduct of business of the Government of India, is framed in language similar to Article 166, and therefore the same interpretative principles apply to it.

Applying that legal principle to the present matter, the order that is being attacked does not satisfy the requirements of Article 77(2) of the Constitution. Accordingly, the appellant is entitled to contest the validity of the order on the ground that it was not issued by the President and to attempt to prove that the Central Government did not make the order. Nevertheless, that line of argument does not assist the appellant, because, as was pointed out, the testimony of P. W. 36, an Assistant in the Home Ministry, remained uncontradicted and was accepted both by the High Court and by the Special Judge. That testimony establishes that the order was issued by the Deputy Secretary acting on behalf of the Central Government, exercising the power that had been delegated to him by the applicable rules. The next issue raised by the appellant concerns the legal competence of Jog, an Inspector of Police belonging to the Delhi Special Police Establishment, to conduct the investigation. In his testimony Jog asserted that the Inspector General of Police, Special Police Establishment, New Delhi, had empowered him under section 5A of the Prevention of Corruption Act to investigate the offences mentioned in the case without obtaining any magistrate’s sanction. The court therefore needed to determine whether Jog could lawfully investigate the alleged offences. Section 5A of the Prevention of Corruption Act, 1950, which forms the basis of this claim, provides: “Notwithstanding anything contained in the Code …” (1) [1952] S.C.R. 612. does not help the appellant.

Section 5A of the Prevention of Corruption Act, 1950, provides that, notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank of an assistant commissioner of police in the presidency towns of Madras and Calcutta, below the rank of a superintendent of police in the presidency town of Bombay, and below the rank of a deputy superintendent of police elsewhere, 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 the Act without first obtaining an order from a presidency magistrate or a magistrate of the first class, as appropriate, and shall not make any arrest for such offences without a warrant. The provision continues with a proviso stating that a police officer of the Delhi Special Police Establishment who is not below the rank of an inspector of police, and who is specially authorised by the Inspector‑General of Police of that establishment, may, if he has reasons to believe that the delay involved in securing an order of a magistrate of the first class would likely result in the destruction or concealment of valuable evidence, investigate the offence without such an order. However, the proviso further requires that, in every case where the officer proceeds with such an investigation, he must as soon as possible forward a report to a magistrate of the first class, together with the circumstances in which the investigation was conducted. In the present matter, Jog, an Inspector of Police, had been specially authorised by the Inspector‑General of Police under section 5A to investigate the offences specified in the Act, and therefore possessed the authority to conduct an investigation within the meaning of the proviso. The dispute, however, centred on whether Jog satisfied the two conditions attached to that authority: first, that he possessed genuine reasons to believe that a delay in obtaining a magistrate’s order would cause loss of crucial evidence, and second, that he subsequently transmitted a report of the investigation, together with the relevant circumstances, to a magistrate of the first class. The High Court, after examining the evidence, concluded that Jog had not fulfilled either of these conditions. This finding raised the question of whether the trial before the Special Judge was invalidated by Jog’s failure to meet the statutory prerequisites. The Supreme Court, referring to the decision in H. N. Rishbud & Inder Singh v. The State of Delhi, held that the provisions of section 5(4) and the proviso to section 3 of the Prevention of Corruption Act, 1947, as well as the corresponding section 5A of the Prevention of Corruption (Second Amendment) Act, 1952, are mandatory, not merely directory, and that an investigation conducted in breach of these provisions is illegal. Nonetheless, the Court also observed that illegality in the investigative process does not affect the competence or jurisdiction of the trial court to hear the case.

The Court observed that once cognizance of the case had been taken and the trial had proceeded to its termination, the legality of the earlier investigation could not invalidate the judgment unless the investigation had resulted in a miscarriage of justice. The issue before the Court was whether, in the present matter, the investigation conducted by the Inspector—who had been duly authorized by the Inspector‑General of Police to investigate under section 5A of the Prevention of Corruption Act—had been performed without observing the two conditions prescribed in the proviso to that section, and whether such non‑compliance had caused any prejudice to the accused. After reviewing the entire record, the High Court had held that the alleged irregularity was insufficient to sustain a conclusion that the failure to observe the conditions in the proviso to section 5A had led to any failure of justice. Counsel for the parties had outlined the various steps taken by the investigating officer, and the Court found no reason to depart from the High Court’s assessment. The validity of the investigation undertaken by Jog was also challenged on a separate ground: it was contended that Jog had not obtained the mandatory permission of the State Government under section 6 of the Delhi Special Police Establishment Act, 1946, before commencing the inquiry. Section 5 of that Act empowers the Central Government to extend, to any area, the powers and jurisdiction of members of the Delhi Special Police Establishment for investigating offences or classes of offences specified in a notification made under section 3. However, section 6 provides that nothing in section 5 shall be construed as permitting any member of the Delhi Special Police Establishment to exercise such powers in any part of a State that is not a Union Territory or a railway area without the consent of the Government of that State. The Government of Bombay, Home Department, had addressed a letter to the Government of India dated 13 August 1949, wherein it reaffirmed, with reference to section 6 of the Delhi Special Police Establishment Act, 1946, the consent previously granted by its letter No. 5042/4‑D dated 6 November 1946, for an indefinite period to the members of the Delhi Special Police Establishment to exercise powers and jurisdiction in the area of the province of Bombay. Before the High Court, and again before this Court, it was argued that consent should have been granted to each individual member of the Special Police Establishment and that a general consent was inadequate. The Court found no merit in that argument. Under section 6 of the Delhi Special Police Establishment Act, no member of the Establishment may exercise powers and jurisdiction in any part of a State without the consent of that State’s Government. The provision does not require that each individual member receive a specific authorization; a general consent, as given by the Bombay Government, sufficed to satisfy the statutory requirement.

In this matter, the Court observed that the State Government possessed the power to authorize a single officer of the Delhi Special Police Establishment to exercise jurisdiction in a particular area, and there was no legal impediment to allowing the Government to extend that authority to the entire force operating within the same area for the purpose of conducting investigations. The Court held that the authorization presented in the present case satisfied the requirements of section 6 of the Delhi Special Police Establishment Act, 1946, and therefore the contention challenging the validity of that authorization lacked any merit.

The Court then turned to the next point raised by the learned counsel, namely the propriety of the framing of the charges. The charges had already been set out in full earlier in the judgment. The first objection advanced was that the Special Judge did not have jurisdiction to try the accused on offences that were not enumerated in section 6(1) of the Criminal Law (Amendment) Act, 1952. The Court noted that this argument disregarded the clear language of section 7(2)(b) of the same Act, which provides that “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.” Consequently, the Court found that the objection was without force.

The subsequent criticism concerned the alleged impossibility of charging a conspiracy that involved accused persons 1 to 3, who were public servants, together with accused persons 4 to 6, who were not public servants, under the Prevention of Corruption Act. The argument was premised on the view that offences under that Act could be committed only by public servants. The Court rejected this submission, holding that it ignored the broader legal definition of criminal conspiracy. Section 120A of the Indian Penal Code defines criminal conspiracy as an agreement between two or more persons to commit an illegal act or to achieve an illegal result by illegal means. The Court emphasized that the essence of the offence is the agreement to violate the law, and that the parties to such an agreement are guilty of conspiracy even if the illegal act has not yet been carried out. Moreover, the definition does not require all conspirators to agree on a single illegal act; the conspiracy may involve a series of illegal acts.

Under section 43 of the Indian Penal Code, an act is illegal if it constitutes an offence or is prohibited by law. The first charge alleged that the accused had conspired to commit three distinct categories of illegal acts. The Court observed that the fact that each accused might not be liable for every individual offence did not diminish the existence of the conspiracy. All accused were therefore guilty of the offence of conspiracy to commit illegal acts, irrespective of their separate liability for each underlying offence. The Court then noted that the second objection related to the second charge, the discussion of which continued in the subsequent part of the judgment.

The Court observed that accused numbers four, five and six could not be charged with an offence punishable under sections five‑one‑c and five‑one‑d of the Prevention of Corruption Act because none of them held the status of public servant. The learned judges of the High Court accepted this legal position as correct, yet they concluded that the three accused could nevertheless be convicted under section one‑zero‑nine of the Indian Penal Code, when that provision is read together with clauses (c) and (d) of section five‑one of the Prevention of Corruption Act. On the merits of the case, however, the High Court convicted accused number one under section five‑two of the Prevention of Corruption Act, rather than under that same provision read in conjunction with section thirty‑four of the Indian Penal Code. In a similar vein, the High Court convicted accused number four under section one‑zero‑nine of the Indian Penal Code, read with sections five‑one‑c and five‑one‑d of the Prevention of Corruption Act, instead of convicting him under section five‑two of the same Act read with section thirty‑four of the Indian Penal Code. Because accused number four died before the present appeal was filed, the Court noted that there was no need to examine the legality of his conviction. Consequently, the sole remaining issue was whether the High Court was justified in convicting accused number one under section five‑two of the Prevention of Corruption Act rather than under that section read together with section thirty‑four of the Indian Penal Code. The Court referred to section five‑three‑seven of the Criminal Procedure Code, which provides that a sentence passed by a competent court shall not be reversed or altered on appeal or revision merely because of an error, omission or irregularity in the charge, including any misjoinder of charges, unless such defect actually caused a failure of justice. The Court then cited the decision in W. Slaney v. State of Madhya Pradesh, explaining that when assessing alleged prejudice, the focus must be on whether the accused received a fair trial, understood the charge against him, was clearly informed of the facts the prosecution sought to prove, and was afforded a full and fair opportunity to defend himself. Applying this test, the Court found that accused number one could not be said to have suffered prejudice from his conviction under section five‑two of the Prevention of Corruption Act, because from the outset he was aware that the prosecution alleged he had committed an offence under that provision, and he was given every opportunity to contest the accusation, which he did by making a sustained effort throughout the trial. Accordingly, the Court concluded that no failure of justice had occurred as a result of the High Court’s conviction of accused number one for the substantive offence under section five‑2 of the Act. Regarding the third head of the charge, the High Court’s finding was that it was …

In this part of the judgment the Court observed that the charge was not bad with respect to accused No. 1 and, therefore, accused No. 1 could not have any grievance about that finding. Consequently, the Court held that the contentions raised by counsel on the basis of the charges framed in this case had no merit. The discussion then turned to the merits of the appeal. Regarding the appellant, both the Special Judge at trial and, on appeal, the High Court had accepted the testimony of Lawrence because it was corroborated in material particulars by other admissible evidence. Both courts concurrently concluded that the appellant was a participant in the conspiracy. Such a conclusion is a finding of fact, and the established practice of this Court is not to disturb a factual finding except in exceptional circumstances. Counsel for the appellant, however, made a serious and sustained effort to have that finding reopened by presenting arguments under three headings. First, counsel argued that the High Court had failed to draw correct inferences from the facts it had found and had arrived at a wrong conclusion by ignoring the probabilities that naturally arise in the situation. Second, counsel contended that the High Court had ignored the essential distinction between an untruthful witness and a truthful witness, noting that under the rule of prudence a witness’s evidence should be accepted only to the extent that it is corroborated in material particulars; consequently, because the High Court had disbelieved Lawrence’s evidence on important incidents in his narration, counsel argued that the entire testimony should have been rejected, which would have removed any issue of corroboration. Third, counsel maintained that the independent pieces of evidence accepted by the High Court did not corroborate Lawrence’s testimony in the material particulars that implicated him in the crime. The first argument directly attacks the correctness of the factual finding made by the High Court. The Court reiterated that, under Article 136 of the Constitution, it does not permit such attacks on factual findings except in exceptional circumstances. After hearing counsel at length on this point, the Court was satisfied that no exceptional circumstances existed in the present case. The Court’s reluctance to depart from its usual practice was heightened by the fact that, concerning the appellant, both the Special Judge and the High Court had arrived at the same factual conclusion. The second argument represented a more subtle attempt to reopen the factual findings from a different perspective. Counsel based this argument on the decision of this Court in Sarwan Singh v. State of Punjab, wherein Justice Gajendragadkar, speaking for the Court, observed that before a court proceeds to consider whether corroboration is adequate, the initial and essential question is whether, even as an accomplice, the approver is a reliable witness; if the answer to that question is negative, the matter ends and no further inquiry into corroboration is required.

In that passage, the Court explained that when an approver is the witness, the first inquiry must be whether the approver can be regarded as a reliable witness. The Court stated that if the approver is found unreliable, the matter ends there and there is no need to consider whether any corroboration exists. In other words, the assessment of an approver’s testimony must satisfy a two‑fold test. The learned Judge then observed that a careful reading of the High Court’s judgment revealed no indication that the High Court judges had examined the character of the approver’s evidence and had concluded that it came from a reliable witness. The Judge further remarked that the approver’s testimony was so thoroughly inconsistent that it was difficult to resist the conclusion that the approver in the present case was a wholly unreliable witness. Relying on these observations, counsel argued that the High Court had, contrary to proper procedure, accepted the approver’s evidence concerning important events and should have rejected it outright without attempting to ascertain whether any material particulars were corroborated by other evidence. Before addressing that argument in the factual context of the present case, the Court made several general observations. It held that the Constitution did not intend to create a rule that the evidence of an approver and any corroborating evidence must be treated as separate compartments, whereby the Court would first examine the approver’s testimony in isolation, reject it if found unreliable, and only if deemed reliable would then consider whether it is supported by other evidence. The Court clarified that it had never laid down such a proposition. In the earlier case, the approver’s testimony was so completely contradictory that the Court deemed him wholly unreliable. However, in most cases the two aspects—reliability and corroboration—are so intertwined that a separate treatment is not feasible, because the reliability of an approver’s evidence often depends, at least in part, on the corroborative support it receives from other unimpeachable evidence.

The Court also emphasized that it was not equating the evidence of the individual named Lawrence with that of an approver, nor had the Special Judge or the High Court placed him precisely in that category. The Special Judge had observed that Lawrence was evidently a decoy, a spy, and an agent provocateur, and therefore his evidence had to be approached with great caution. The Special Judge warned that little weight could be attached to such evidence unless it was corroborated by other independent evidence and circumstances in the case. The Court noted that while evidence that is not tainted does not suffer from a disability rendering it unworthy of acceptance, the fact that it is interested evidence requires corroboration from an independent source before it can be accepted. The Court affirmed that convicting an accused on the basis of tainted evidence from an accomplice is not illegal but is imprudent, and that relying on partisan evidence from a person who was part of a police‑set trap is neither illegal nor imprudent, yet it is inadvisable and therefore should be accepted only if corroborated by other independent evidence and circumstances. The High Court had practically adopted the same cautious approach in dealing with Lawrence’s evidence, observing that conviction on such partisan evidence is not illegal or imprudent, acknowledging that an accomplice might testify in hope of a pardon, but that such consideration does not alone justify reliance on his testimony without independent corroboration.

The Court explained that evidence which is merely interested must be corroborated by an independent source before it can be accepted. It warned that while it is not illegal to convict an accused on the basis of tainted evidence supplied by an accomplice, such a conviction would be imprudent. Similarly, the Court stated that convicting an accused on the basis of partisan evidence given by a person at whose instance the police set a trap is not prohibited but is inadvisable, and therefore that evidence should be relied upon only when it is supported by other independent evidence and circumstances in the case. The learned Judges of the High Court adopted essentially the same approach when they examined the testimony of Lawrence. They observed that convicting an accused upon the partisan evidence of a person who induced the police to lay a trap is neither illegal nor imprudent, because an accomplice might sometimes testify in the hope of securing a pardon, but that motive does not apply to a person who is not a guilty associate and who merely invites the police to set a trap. The Court further explained that a person who furnishes information to the police for the purpose of inducing a trap is a partisan witness who has an interest in seeing the trap succeed, and that it is therefore necessary and advisable to seek corroboration of such testimony before accepting it. The Court added that the degree of corroboration required for tainted evidence of an accomplice is higher than that required for a partisan witness, and that all the earlier decisions clearly show that it would not be safe to rely on the testimony of Lawrence, who is admittedly a decoy or trap witness, without independent corroboration of his statements. Counsel for the State, identified in the record as a learned special counsel, urged the courts to examine Lawrence’s evidence on the ground that he was a decoy or trap witness. The Court affirmed that both the Special Judge and the High Court had approached Lawrence’s evidence correctly. Although Lawrence was not an approver, the Court held that he was certainly an interested witness because he wanted the trap he arranged to succeed. He could at least be treated as a partisan witness, and his testimony could not be admissible without corroboration. The Court also noted that Lawrence’s evidence was not tainted, and that this distinction affected only the degree, not the necessity, of corroboration needed. Viewing the matter from this perspective, which the Court considered correct, the Special Judge concluded that there was no compelling reason for Lawrence to fabricate a false story against Major Barsay and the other accused, and therefore…

The Special Judge observed that, on the face of the evidence, there was no substantial reason to discard the testimony of Shri Lawrence. After this preliminary remark, the Special Judge examined the pieces of corroborative evidence and concluded that Lawrence’s statements had been supported in the material particulars relating to the appellant. The High Court judges likewise reviewed Lawrence’s evidence together with that of other admissible witnesses. Although the High Court judges rejected portions of Lawrence’s account where those portions conflicted with other parts of his testimony or with the testimony of disinterested witnesses, they did not regard Lawrence’s overall narrative as a fabrication or a myth. Having examined the entire body of evidence, the High Court judges declared that they accepted Lawrence’s testimony, found his story to be probable and true, and held that the record substantiated the trial court’s finding of a conspiracy, as alleged by the prosecution, to smuggle goods out of the Dehu Vehicles Depot.

Having broadly accepted Lawrence’s version, the High Court proceeded to consider each accused individually. It held that for accused numbers one through four, Lawrence’s testimony was sufficiently corroborated by other evidence in all material respects. Consequently, the Court could not sustain the appellant’s counsel’s contention that the High Court had rejected Lawrence’s evidence. While the High Court had indeed excluded certain parts of Lawrence’s testimony, it had nevertheless embraced the core of his account concerning the conspiracy and the manner in which the articles were removed from the depot. Where some accused were acquitted, it was because Lawrence’s evidence concerning them contained discrepancies and lacked corroboration on material points. In contrast, the High Court accepted Lawrence’s evidence against the appellant and convicted him because that version was corroborated in every material respect by the testimony of other disinterested witnesses. The present Court therefore rejected the appellant’s claim of an erroneous finding.

The remaining issue for determination was whether Lawrence’s evidence was corroborated in material particulars that implicated the appellant, by other acceptable evidence. Such corroboration must consist of independent testimony that confirms, in material aspects, not only that the offence was committed but also that the appellant participated in it. Full corroboration of every circumstance or every detail of the crime is not required; it suffices that the material circumstances of the offence and the identity of the accused in relation to those circumstances are corroborated. These principles have been settled in R v Baskerville, which is regarded as the leading authority on the law of approver’s evidence and has been followed by Indian courts.

In view of the established principle that corroboration must be derived from independent, disinterested witnesses who confirm material aspects of the charge, both the High Court and the Supreme Court identified such corroboration against the appellant. The witness identified as Lawrence narrated a comprehensive chronology of the fraudulent scheme from the day he first encountered Major Barsay on 2 December 1954 up to 20 December 1954, the date on which the police halted the offending truck and prevented it from continuing its journey. In Lawrence’s testimony he recounted that on 3 December 1954 Major Barsay informed him, among other things, that he and Kochhar had devised a detailed plan to move all valuable items stored in Shed No 48 to Shed No 17 for the purpose of itemisation. Lawrence further reported that Major Barsay said he had already recalled Kochhar from leave before the leave period expired, assigning him to the Kit Stores, and that he had similarly transferred Avatarsingh from the Unfit Sub‑Park to the Kit Stores. The prosecution proved, by clear and independent evidence, that Major Barsay indeed caused Kochhar, identified as accused No 2, to report to the Kit Stores by directing him to cut short a two‑month leave. The same evidence established that Major Barsay also caused Avatarsingh to be posted to the Kit Stores. Although these facts did not by themselves implicate Kochhar or Avatarsingh in the alleged crime, they nonetheless corroborated Lawrence’s statement that Major Barsay had arranged these transfers specifically to facilitate the execution of the scheme.

Lawrence reiterated in his evidence that on 3 December 1954 Major Barsay had explained that, once a Board of Officers was constituted, a shuttle service of trucks would operate continuously between Shed No 48 and Shed No 17, and that the movement of one or two trucks out through the main gate would not arouse any suspicion. Subsequent evidence confirmed that such a Board of Officers was indeed appointed for the itemisation work and that Captain Mehendiratta was named President of that Board. Lawrence also related that Major Barsay told him he intended to exhibit certain boxes from Shed No 48 to Colonel Rao, asserting that the boxes did not contain many of the items they were alleged to hold, thereby ensuring that Colonel Rao would not be surprised by the eventual outcome of the itemisation process. Independent testimony established that on 8 December 1954 Major Barsay accompanied Colonel Rao to Shed No 48 and showed him the military stores awaiting itemisation. Finally, Lawrence testified that at about midday on 18 December 1954 Major Barsay met him at the Depot and conveyed further instructions, thereby reinforcing the linkage between the appellant’s conduct and the fraudulent scheme as demonstrated by multiple, independent witnesses.

Lawrence testified that Major Barsay had invited him and the other conspirators to meet at his residence in order to discuss the details of the scheme. According to Lawrence, the meeting actually took place on the eighteenth of December, a fact that the testimonies of Colonel Sindhi and Captain Sharma also confirmed. Both courts accepted the evidence of these two officers, and their statements further established that the persons present at the meeting were Major Barsay, Saighal, Lawrence and two Sikh individuals. Although the two Sikhs were not positively identified as accused numbers two and three, the presence of accused numbers one and four together with the two Sikhs supported Lawrence’s account of the meeting. During this gathering Lawrence said that Major Barsay made several specific commitments. He asserted that Major Barsay promised to appoint a driver he trusted to operate a vehicle that would be used in executing the plan, that he would send an officer named Kochhar to Shed Number Seventeen and direct Kochhar to transfer the itemised goods from that shed to Shed Number Twenty‑Six under the pretense of preservation, and that he would call Major Nag on Monday, the twentieth of December, to be present when he ordered Lawrence to proceed to the Department of Defense in order to obtain fire hoses.

The court noted that the testimony of Havaldar Pillay, Godse, Suryawanshi and G. K. Pillay demonstrated that Major Barsay had indeed secured a truck and a driver for the purpose of moving the stores from Shed Number Seventeen to Shed Number Twenty‑Six. In addition, the evidence of Jamadar Lachmansing showed that Major Barsay personally went to Shed Number Seventeen and gave the order to shift the stores to Shed Number Twenty‑Six for conditioning and preservation. The testimony of Major Nag further established that, while Major Nag was present, Major Barsay summoned Lawrence and instructed him to go to the Department of Defense and expedite the return of the fire hoses. These facts, taken together, corroborated Lawrence’s description of the events that occurred on the eighteenth and confirmed his statement that Major Barsay gave those instructions to him in the presence of Major Nag.

Lawrence also recounted that Major Barsay explained to the conspirators that two separate loadings of trucks would be arranged at Shed Number Seventeen: the first loading would contain apparently harmless articles, while the second loading would carry the items that were intended to be smuggled out of the depot. This version of the plan was supported by independent, disinterested evidence, and both courts accepted that corroborating testimony. Subsequent evidence detailed Major Barsay’s movements during the critical period when the smuggling operation was scheduled. The statements of Jogendrasingh, Rambhan and Wagh indicated that on the twentieth of December, between one and ten in the afternoon, Major Barsay appeared unusually anxious and moved back and forth near the main gate because he feared that his activities were being observed. Jamadar Jogendrasingh testified that Major Barsay instructed him to tell Lawrence not to proceed because something suspicious was afoot, and Major Nag gave a consistent version of events. These nervous movements of Major Barsay reinforced Lawrence’s claim that he was the active participant in the conspiracy.

In this case the Court observed that Lawrence’s testimony that the responsibility of accompanying the truck had been allotted to him as part of the conspiracy was supported by the circumstances established by evidence showing that Lawrence entered the truck near Shed No 17 and travelled with it to its destination. The Court further noted that Lawrence’s description of how Major Barsay directed the removal of the goods from the Depot was corroborated by independent evidence. Evidence furnished by Jog and Diwate demonstrated that on the morning of 19 December Saighal pointed out to Lawrence the exact location where the transshipment was to be carried out. Additional testimony from Darekar showed that a truck had been arranged and that Yakubsaheb had instructed Darekar to take his vehicle to Talegaon for the transport of iron goods. Darekar and Hatnolkar also testified that accused No 4 was waiting near the cemetery on the Talegaon‑Dabhade Road and that Darekar had received specific instructions from Saighal regarding the manner in which the lorry was to be parked. Police officers further testified that the military goods loaded onto the military lorry were being transferred into the civilian truck when the police arrived at the scene. All of this material evidence reinforced Lawrence’s version that Major Barsay gave the necessary instructions concerning the method of moving the military goods to the civilian truck. The Court held that the facts established by both lower courts implicated accused No 1 in the preparation, formulation of the details of implementation and the actual execution of the scheme to smuggle the goods out of the Depot at every stage, thereby establishing that the appellant was the chief conspirator and the brain behind the entire conspiracy. Consequently the Court could not accept any suggestion that Lawrence’s version implicating accused No 1 lacked corroboration by independent evidence, and therefore the conviction of the appellant by the High Court was affirmed. The appeal before this Court arose from the State’s challenge to the High Court’s judgment acquitting accused Nos 2 and 3 on the ground that the evidence of Lawrence against them was not supported by material particulars from independent sources. The State was not permitted to revisit the High Court’s assessment of the evidence, and the present Court found no reason to depart from the conclusions reached by the High Court. Regarding accused No 2, the High Court had made the following findings: first, there was no evidence or allegation on record indicating any understanding between him and Major Barsay before he went on two‑month leave; second, there was no evidence that Kochhar, accused No 2, met Lawrence on 6 December 1954; third, the High Court found that no further material was presented to establish his participation in the offence.

The Court recorded that Accused No. 2 wrote to Major Barsay, as shown in Exhibit 151, requesting that an itemization board be convened. Before the board was appointed and constituted, Accused No. 2 directed the transfer of the “specialist boxed kits” from Shed 48 to Shed 17; this transfer was carried out under the instructions of Major Barsay. The Court also noted that Accused No. 2 was present when Major Barsay ordered Fernandez to complete the identification of the first set of items before 13 December, permitting work to be done on Sunday, 12 December, and that a written order to this effect was issued on 11 December. On 12 December, Lawrence persuaded Accused No. 2 to obtain two insurance policies. Lawrence further stated that Kochhar had undertaken to prepare a forged voucher and to be present at the depot during opening hours on Monday, 20 December, to create the voucher in Lawrence’s office; however, it was admitted that Kochhar ultimately refused to issue the voucher. The Court further observed that Accused No. 2 was present at Shed 17 when Major Barsay gave orders to shift the stores to Shed 26, and that Accused No. 2 accompanied Major Barsay to Shed 19 in the morning and was present while the truck was being loaded for the second trip at Shed 17. The High Court concluded that, although some of these circumstances might raise suspicion, none of them implicated Accused No. 2 in the offence and they were consistent with his innocence. The Court affirmed that the High Court was not erroneous in holding that these facts did not corroborate Lawrence’s evidence to implicate Accused No. 2.

Regarding Accused No. 3, the Court listed several findings based on evidence independent of Lawrence’s testimony. First, the Court found that Avatarsing, identified as Accused No. 3, had been transferred from the Unfit Sub‑Park to the Kit Stores. Second, the Court observed that Accused No. 3 participated in the shifting of stores from Shed 48 to Shed 17 prior to the appointment of the itemization board. Third, although Lawrence asserted that Avatarsing had expressed an inability to advance the scheme because of Captain Kapoor’s constant vigilance and visits to Shed 17, Lawrence admitted that his initial contact with Avatarsing occurred on the afternoon of 18 December. Fourth, the Court noted that there was no evidence showing that Avatarsing attended the meeting held at Major Barsay’s premises on the 18th. Fifth, the Court recorded that Avatarsing loaded the truck for both the first and the second trips, employing the usual laborers and two external workers for the second loading. Sixth, after the truck was loaded, Avatarsing instructed Rambhan to transport the truck to D O D in accordance with directions from senior officers. Seventh, the duty slip marked “D O D” in Exhibit 42 was not entered by Avatarsing. The High Court held that these independently discovered facts did not implicate Accused No. 3 in the offence and were consistent with his innocence.

In its consideration of the matter, the Court observed that the evidence presented against the accused did not establish any link that would undermine the conclusion that the individuals were innocent of the alleged offence. The Court noted that although a few of the factual findings produced a degree of suspicion, such suspicion was insufficient to overturn the view that the High Court had correctly held that those facts did not support Lawrence’s testimony in a manner that would implicate the accused in the crime. Accordingly, the Court affirmed that the High Court’s findings were sound with respect to accused numbers two and three, and found no error in the lower court’s assessment of the material. On that basis, the Court concluded that the appeals filed by the accused could not succeed. The Court therefore dismissed both appeals, holding that the challenges raised by the appellants failed to demonstrate any reversible error in the earlier determinations. In summary, the appeals were rejected and the orders of the High Court were upheld, resulting in the dismissal of the appeals.