MAJOR E G BARSAY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) (AFTER stating the facts his Lordship proceeded;) Before I consider the evidence against the accused and the arguments addressed to us at great length on behalf of the accused on the evidence, I think it would be convenient to dispose of first some of the law points which have been argued on behalf of the accused. I may mention that ordinarily we would have expected Counsel to address us on law points at the very outset. But Mr. Purshottam informed us that he would address us on the law points after he dealt with the merits of the case against the accused on the basis of the evidence on the record. The first law point raised by Mr. Purshottam is in connection with the charge. I may mention that in the first instance Mr. Purshottam and Mr. Harnamsingh, who appeared on behalf of accused No. 2, took exception only to the second and the third heads of the charge. It was Mr. Bhasme, who was appointed on behalf of accused Nos. 5 and 6, who challenged the legality of the entire charge in respect of his clients, and his arguments were thereafter supported by Mr. Purshottam.

(2.) THE main grievance is that so far as the first head of the charge is concerned, it refers to three kinds of illegal acts, the first two of which would fall under Section 5 (1) (c) and 5 (1) (d) of the Prevention of Corruption Act under Section 5 (1) (c) of the said Act, a public servant is said to commit the. offence of criminal misconduct in the discharge of his duty if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; and under Section 5 (1) (a) of the Act, a public servant would also commit the offence of criminal misconduct in the discharge of his duty if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. The argument is that the first two sub-heads of the first charge definitely fall within the definition of Section 5 (1) (c) and (d) of the Prevention of Corruption Act; and it is urged that as admittedly accused Nos. 4, 5 and 6 are not public servants it cannot be said that they could be charged with having agreed to commit these acts. It is no doubt conceded that the first head of the charge is that all the six accused were parties to a criminal conspiracy for the doing of certain illegal acts. But it is contended that since accused Nos. 4, 5 and 6 were not public servants they could not commit the offence of criminal misconduct under the Prevention of Corruption Act and therefore their joinder in this trial is illegal. It is also urged that though the third sub-head of the first charge could be framed against accused Nos. 4, 5 and 6, accused Nos. 1, 2 and 3 could not be charged for the offence of committing theft in respect of property which was admittedly under the control as public servants. It is also submitted that not only could accused Nos. 1, 2 and 3 on the one hand and accused Nos. 4, 5 and 6 on the other be not jointly tried, but that the Special Judge under the Criminal Law Amendment Act, 1952, was not competent to try such a charge.

(3.) IT is necessary to examine the provisions of the Criminal Law Amendment Act, 1952, in considering this argument. under Section 6 (1) of the said Act, the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification to try offences which are specified in Clauses (a) and (b) of that section. Under Clause (a) offences punishable under Section 161, Section 165 or Section 165-A of the Indian Penal Code or sub-s. (2) of Section 5 of the Prevention of Corruption Act, 1947, are included; and under Clause (b) are included any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in Clause (a ). At one stage Mr. Purshottam appeared to submit that under Section 6 it would be public servants alone who could be tried by a Court of a Special Judge. But that contention would not be correct because Sections 162 and 165-A of the Indian Penal Code would obviously include in their ambit persons who would not be public servants, Similarly the reference in Clause (b) of Section 6 of any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in Clause (a) would necessarily involve trial of persons who are not public servants. In our opinion, therefore, the Court of the Special Judge would be competent to try offences committed even by persons who are not public servants, provided they fall within cls. (a) and (b) of Section 6 (1) of the Criminal Law Amendment Act, 1952.