MAJOR E. G. BARSY versus THE STATE OF BOMBAY

Citation: [1962] 2 S.C.R. 195 · Decided: 24-04-1961 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Dismissed

Cited by 11 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

2 $.C.R. SUPREME COURT REPORTS 
195 
1952, was a competent and legal order and no excep-
tion can be taken to it. 
We would, therefore, allow the appeal and set aside 
the order of the High Court. The second respon-
dent should pay the costs of the other parties through-
out. 
BY COURT. In accordance with the majority Judg-
ment, the appeal is dismissed with costs to the con-
testing second respondent. 
MAJOR E. G. BARS A Y 
v. 
THE STATE OF BOMBAY 
(K. SUBBA RAO and RAGHUBAR DAYAL, JJ.) 
Criminal Trial-Criminal Misconduct-Army Officer tried by 
Special Judge-Jurisdiction-Sanction for prosecution given by 
Deputy Secretary-Validity-Investigation by Inspector of Police, 
Special Police Establishment, Delhi-Legality-Conspiracy-Pub· 
lie Servants charged with others-Legality of charge-Approver-
Corroboration-Prevention of Corruption Act, r947 (II of r947), 
SS. 5A, 5(2), 6(r)(a)-Army Act, r950 (46 of I950), SS. 52, 70, I25, 
r27-Criminal Law (Amendment) Act, r952 (46 of r952), ss. 6, 7, 
8, 9-Constitution of India, Art. 77. 
The appellant and five other persons, three of them not 
being public servants, were charged with criminal conspiracy to 
dishonestly or fraudulently misappropriate or convert to their 
own use military stores and with dishonestly and fraudulently 
misappropriating the same. Sanction for prosecution of the 
accused was given by a Deputy Secretary on behalf of the Cen· 
tral Government. The accused were tried by a Special Judge. 
The main evidence led was that of one L, a security officer, who 
had been asked to join the conspiracy and who had joined it 
with a view to have the offenders apprehended. The Special 
Judge convicted all the accused persons. On appeal the High 
Court confirmed the conviction of the appellant and one other 
accused now dead and acquitted the other four accused persons 
holding that the evidence of L was corroborated in material 
particulars in respect of· the appellant and one other accused 
only. The appellant contended: (i) that the appellant who was 
subject to the Army Act cou.ld only be tried by a Court Martial 
; 
and the Special Judge had no jurisdiction to try him, (ii) that 
the sanction to prosecute was void as it was not expressed to be 
P. ]. Irani 
v. 
SJat~ of Madras 
Sarkar], 
I96I 
April a4. 
Major 
E.G. Barsay 
v. 
Stat1 of Bombay 
196 
SUPREME COURT REPORTS 
[1962] 
made in the name of the President, (iii) that the investigation 
by the Inspector of Police, was illegal, (iv) that there could be 
no legal charge of conspiracy between accused who were public 
servants and accused who were not, and (v) that L was a 
wholly unreliable witness whose testimony ought to have been 
rejected totally and no question of its corroboration arose. 
Held, that the Special Judge had j11risdiction to try the 
appellant for the offences charged. The Army Act does not bar 
the jurisdiction of criminal courts in respect of acts or omissions 
which are punishable under the Army Act as well as under any 
other law in force. The offences charged were triable both by 
the Special Judge and by a Court Martial. In such cases s. 125 
of the Army Act provides that if the designated officer decides 
that the proceedings.should be before a Court Martial he may 
direct the accused to be detained in military custody. But in 
the present case the designated officer had not exercised his 
discretion and the Army Act was not in the way of the Special 
Judge exercising his jurisdiction. Rule 3 made under s. 549, 
Code of Criminal Procedure for persons subject to military law 
was applicable only to magistrates and not to a Special Judge 
who is not a magistrate within the meaning of r. 3. Besides, 
s. 7 of the Criminal Law (Amendment) Act, 1952, provides that 
notwithstanding anything contained in the Code of Crimi-
nal Procedure or in "any other law" the offences specified in 
s. 6(1) shall be triable by Special Judges only. The words "any 
other 12w" included the Army Act also. The offences for which 
the appellant was convicted were offences specified in s. 6(1) 
and were exclusively triable by a Special Judge. 
Held, further, that the sanction for the prosecution of the 
appellant was a good and valid S2nction. Article ?7 of the Con-
stitution which provides that all orders of the Central Govern-
ment shall be expressed to be in the name of the President is 
only directory and not mandatory. Where an order was not 
issued in strict compliance with the provisions of Art. 77 it 
could be 

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