Zafrullah Khan, J.-

This case has had a chequered history.

The facts, so far as they are material at this stage, are these. The appellant Gill is an Army Officer and was between March 1941 and July 1942, Deputy Assistant Director of Contracts and Deputy Controller of Purchase at Calcutta, and in that capacity was responsible for the issue and acceptance of tenders for purchase of materials on behalf of certain Departments of Government. The appellant Lahiri was a contractor for the supply of such materials.

On 25th February, 1943, a complaint was filed by a Deputy Superintendent of Police in the Court of the Chief Presidency Magistrate, Calcutta, alleging that between March 1941 and July 1942, Gill and Lahiri were parties to a criminal conspiracy to cheat the Government of India by dishonestly or fraudulently inducing its officers to pay larger sums of money than would otherwise have become due to Lahiri in respect of contracts for the supply of materials placed with Lahiri’s firm by Gill on behalf of Government and that in pursuance of this conspiracy Lahiri had on various occasions made payments to Gill. The complaint was accompanied by the consent of the Governor-General acting in his discretion, under section 270(1) of the Constitution Act to the institution of criminal proceedings against Gill for offences punishable under section 161 and section 120-B real with section 420 of the Penal Code. There was also exhibited the sanction of the Governor-General in Council under section 197 of the Code of Criminal Procedure to the prosecution of Gill for the same offences. The consent of the Chief Presidency Magistrate under section 196-A(2) of the Code of Criminal Procedure to the initiation of the proceedings was also filed.

On 4th May, 1943, the Chief Presidency Magistrate framed a charge against Gill and Lahiri under section 120-B read with section 420 of the Penal Code and a charge against Gill under section 161 of the Penal Code in respect of one particular payment of Rs. 500 and a charge against Lahiri under section 109 read with section 161 of the Penal Code in respect of the same amount of Rs. 500.

The object of the criminal conspiracy which was the subject-matter of the first charge was “to cheat the Government of India in the Department of Supply by dishonestly or fraudulently inducing its Financial Officers to pay larger sums of money than due (in respect of specified contracts) by means of false representation regarding ......the rates quoted (by Lahiri’s firm) and character and capacity of supply made by them in preference to those of other firms.”

On the conclusion of the trial the learned Magistrate found that a conspiracy to cheat Government was not established. With reference to the charges under sections 161 and 161/109 he found that though the payment of the amount set out in the charge was admitted by Gill, there was something to be said for the explanation that he had offered as to the consideration for which the payment ha 1 been made to him. On these findings he acquitted both accused on all the charges.

Against the acquittals the Grown carried an appeal to the High Court at Calcutta which was decided on the 8th December, 1944. The learned Judges of the High Court agreed with the learned Magistrate that the evidence led in support of the conspiracy charge did not establish that charge but held that the proper charge should have been one of conspiracy to give and receive bribes. They, therefore, set aside the order of acquittal and reman led the case to the Chief Presidency Magistrate for trial “on an amended charge of conspiracy to give and receive bribes and also on the charges under sections 161 and 161/109 of the Indian Penal Code as previously framed.”

The case then went back to the Chief Presidency Magistrate who on 22nd June, 1945, charged Gill and Lahiri under section 120-B read with section 161 of the Penal Code with being parties to a criminal conspiracy between March 1941 and July 1942 with the object of

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