A.N.BANERJEE, J. - (1.)THESE two appeals arising out of the same judgment were heard together and would be governed by the following judgment: On 11 -7 -67, Dy. Supdt. of Police, Special Police Establishment, Division C.B.I., Calcutta filed a petition of complaint before the Judge of 4th Additional Special Court, Calcutta, against three accused persons viz. (1) Capt. Usha Ranjan Roy Choudihury (accused/appellant in Criminal Appeal 308/72), (2) Major Ramchandar Rangnath Hoshing (respondent in Govt, Appeal) and (3) Lt. Col. Birendra Nath Mazumdar (respondent in Govt. Appeal) under Section 120 -B read with Section 5 (2) of Act II of 1947 and under Section 5 (2)/5 (1) (c) and (d) of Act II of 1947. Along with such petition of complaint sanction order of the President of India under Section 6 (1) (a) of the Act II of 1947 and Section 197, Cr.P.C. and the certificate of the Political Officer, Sikkim, under Section 188, Cr.P.C. were also filed. On a perusal of the petition of complaint and on a consideration of the allegation made thereunder, the learned Judge took cognizance of the offence and issued process against the aforesaid three (persons. The learned Judge in taking cognizance of offences referred to the allotment order made by the Government regarding the case to his court. After the accused persons had put in their appearances, evidences were recorded and charges were framed against them. All of them were charged under Section 120 -B/409, I.P.C. The accused U. R. Roy Choudhury was further charged under Sections 477 -A, 467 and on different counts under Section 409, I.P.C. The accused Ramchandar Rangnath Hoshing was also charged under Section 109/467, I.P.C. The accused Biren -dra Nath Mazumdar was also charged on different counts under Section 409, I. P.C. The learned Judge of the Special Court by his judgment dated 28 -9 -72 found the accused Usha Ranjan Roy Choudhury guilty of the offences under Sections 409, 467 and 477 -A, I.P.C. and sentenced him to R.I. for 8 years and to a fine of Rupees 30,000, in default, to R.I. for another 18 months under Section 409, I.P.C. and for two years under each of Sections 467, 477 -A, I.P.C. The sentences were ordered to run concurrently. He acquitted all the three accused persons of the charge of conspiracy under Section 120 -B and also found the accused Birendra Nath Mazumdar and Ramchandra Rangnath Hoshing to be not guilty of the other respective charges framed against them. Accordingly, B, N. Mazumdar and Ramchandra Rang Nath Hoshing were acquitted. Being aggrieved by such judgment, the Government preferred the present appeal against the order of acquittal in favour of the said two persons and also against an order of acquittal in respect of the charge under Section 120 -B, I.P.C. The accused U. R. Roy Choudhury filed a separate appeal against the order of conviction and sentence against him. Thus, these two appeals came to be heard together. The facts leading on to the prosecution may be briefly stated as follows: The 3 accused persons who are Army Officers belong to 10 Infantry Division which was a part of the greater army formation viz. 33 Corps. There were other units in the said 10 Infantry Division. During the Chinese invasion of a portion of eastern part of India in 1962, the said division was moved into Slkkim. The Divisional Headquarter was also shifted there, as the division had to make arrangement for maintenance of supplies and provisions to the forces posted at different strategic points For such purpose, the division had its own arrangement of funds. The fund was operated under a Supply and Service Imprest Accounts sanctioned by the General Officer Commanding for the Headquarter of the Division. The accused Lit. Col. B. N. Mazumdar was appointed as Imprest Holder in respect of Rupees 1,00,000 at any given time and also the Sanctioning Authority in respect of expenses under this Account, There was a Field Cashier for maintaining Cash and Accounts of the said imprest money. The accused Capt. Usha Ranjan Roy Choudhury was the Field Cashier. The remaining accused Major Ramchandra Rang Nath Hoshing was Commander of the 100 composite Platoon which evidently was under the 10 Infantry Division. The prosecution alleges that the Imprest Holder Lt Col. B, N. Mazumdar and the Field Cashier Capt. U. R. Roy Choudhury entered into criminal conspiracy for misappropriating the imprest money by misuse of their official power. The present case concerns only with expenses relating to hire of mules and labourers by the units concerned. The procedure adopted by the accused persons for the purpose of misappropriation of the imprests money was of four types. Firstly, where no mule was employed by certain user units the Lt. Col. B. N. Mazumdar issued fictitious sanction orders according sanctions authorising employments of certain number of mules for fictitious purpose and Capt. U. R. Roy Ohoudihury prepared completely false forged muster rolls showing fictitious payments of huge amounts of money and thus misappropriated between them the whole amount. Secondly, in the event of some units actually having used mules for certain purposes Lt. Col. Mazumdar made sanctions in respect of those employments of mules by either increasing the number of days of employment or the number of mules over what were actually employed. Capt. U. R. Roy Choudhury supported him by preparing false muster rolls showing such payments. Thirdly, where payments for the employment of the labourers were made Lt. Col. Mazumdar dishonestly made by either showing inflated number of labour employed and/or showing inflated rate of employment or number of days employed. The Field Cashier supported such payments with the preparation of false muster rolls showing higher amounts of money spent for labour payments than what were actually paid. Thus the balances were misappropriated. Fourthly, where the money was advanced to any particular unit for the employment of labour or mules, higiher amount was shown as paid. The accused Major Ramchandar Rangnath Hoshing joined conspiracy by taking advances from the Field Cashier for making payment to labourers employed by his unit 100 composite Platoon of which he was a Commandar, He dishonestly assisted the Field Cashier by making false and inflated muster rolls showing higher amounts than were actually paid by him and caused submission of blank muster rolls to the Field Cashier.
(2.)SUCH was the nature of the allegation as made by the prosecution, on the basis of which the accused persons were charged and tried with the result as indicated above.
The defence of the accused persons was that they have nothing to do with the allegation as made by the prosecution. Mr. S. D. Banerjee, senior advocate with Mrs. J. Nag, Mr. Nirmalendu Basu, Mrs, Rajkumari Singh, Miss Pritam Kaur Khatra, Miss Runu Roy Choudhury and Miss Parbati Basu appearing for the respondents 1 and 3, and Mr. S, D. Banerjee with Mrs. J. Nag, Mr. Chinraoy Choudhury, Miss Pritam Kaur Khatra and Miss Runu Roy Choudhury appearing for the appellant Gapt. U. R. Roy Choudhury contended that the entire proceedings before the learned Judge of the Special Court including the orders of conviction must be quashed inasmuch as no valid sanction under Section 197, Cr. P, C. was taken in respect of the offences under Section 409, I.P.C., cognizance was taken in contravention of mandatory provision of Section 200, Cr, P.C. and the Judge of Special Court, assumed Jurisdiction without complying with the provisions of the Army Act.

(3.)MR . S. R. Dutta, learned Advocate with Mr. j N. Nanda appearing for the respondent No. 2 supported the argument of Mr. Banerjee.