The Alipore Bomb Trial

Mr. Justice Carnduff, I.C.S

APPEAL BEFORE THE HIGH COURT.

     On the 25^th May, 1909, Barindra K. Ghose and Ullaskar Dutt filed an appeal before the Criminal Bench of the High Court presided over by Justices C. P. Casperz and A. E. Ryves against their convictions and sentence. The same was admitted. On the same day Asoke Chundra Nundy and Indra Nath Nundy filed separate appeals and 15 other accused persons tiled another appeal jointly. All were admitted and usual notices on the Crown were issued and from 9^th August arguments commenced which occupied the time of the Court for 47 days.

FIRST DAY’S HEARING

     Mr. C. R. Das opened the case and after narrating certain facts said :—

     In order to put to your Lordships how the proceedings commenced and how these proceedings were taken through different stages, I think it would be more convenient if your Lordships owed me, first of all, to refer to some of the overt acts alleged by the prosecution evidence adduced in the lower courts. Your Lordships will find that between October and November, there were two futile attempts on Sir Andrew Fraser in French Chandannagar on the railway line. They tried to lay the mine there in one case, but they did not succeed in doing that and took away the mine. In the other case, they laid the mine there, but failed in their attempt. The next overt act was on the 6^th December. That is what is referred to as the Naraingarh outrage. The case for the prosecution was that they took the mine from Calcutta and laid it on the railway line.

     In that case they said that the damage was not very much. It was trifling. One of my grievances in the lower Court was that in spite of my repeated requests no particulars about these overt acts were supplied to us. I gathered them from the evidence. On the 16^th of April another incident took place. Barindra Kumar Ghose and certain other persons were seen going from Calcutta to Mankunda, near Chandannagor, and` the police heard an explosion on the 11^th in the house of the Mayor. The police evidence is that they connect this incident with the persons whom they saw on the previous day going from Calcutta to Chandannagor. The last of these incidents is the one which took place on the 30^th April at Muzafferpur. The case for the prosecution is that it was an attempt on Mr. Kingsford with the result that two ladies were

Page 195

killed. There was a trial held at Muzzafferpore and it person of the name of Khudiram was convicted and sentenced to death.

     What I find from the evidence is that the police witnesses state that after the Naraingar outrage in December, 1907, and until February, 1908, they came to know that there was a Secret Society in Calcutta. They began to watch different persons from March, 1908. The Police began to keep watch over 32, Murari Puker Road, that is the garden—this place is referred to as the garden. They began to watch another house, that is No. 15, Gopimohan Dutt’s Lane. It was alleged that certain boxes and trunks were removed there from 38-4, Raja Navakrishna’s Street, on the 20^th April. On the 26^th April, there was another removal of boxes and trunks. It was from 15, Gopi Mohun Dutt's Lane, to No. 134, Harrison Road. After the incident at Muzafferpur, that is, between March and the end of April, they saw different persons going to different places.

     On the 1^st May Inspector Purna Chandra Biswas, who was the complainant with regard to all the different offences, laid a complaint before Mr. Thornhill, the Chief Presidency Magistrate of Calcutta. But we do not know what that complaint was. That complaint has not been produced. But we have got it out of the month of the witnesses that it was a complaint against Arobindo Ghose and his “gang of outlaws." I am quoting the words of a witness. I am told no record of this is kept. The same witness further declares that on that very day, he applied for and obtained certain search warrants to search different houses in Calcutta including 32, Murari Pukur Road. But this place is not in Calcutta.

     We are told again that there was a gathering of Inspectors of the police force both of Calcutta and moffussil in the house of Mr. Halliday. On the 2^nd of May, we find that different houses were searched and the persons, found in these houses, were arrested. Early in the morning, at about 3 or 4 o'clock, these searches were made. Our case was that though there were search- warrants and one or two search-witnesses, there were no warrants for the arrest of persons. At 32, Murari Pukur Road, that is the garden, they arrested Barindra Kumar Ghose, Ullasker Dutta, Upendra Nath Banerjea, Bibhuti Bhushon Sircar, Indubhushon Roy, Paresh Chandra Moulick and Sishir Kumar Ghose. The evidence is that as soon as the accused were arrested inside the garden, they were handcuffed and kept together in one place. They found a lot of documents, and other articles—these being exhibits from No. l to No. 232. Your Lordships will please note that these exhibits are in Roman figures up to No. 192. The rest is numbered with Arabic numerals.

     Barindra Kumar Ghosh wanted to make a confession to the

Page 196

police. He pointed out certain articles and one of the officers went to get an Honorary Magistrate. The result was that no Honorary Magistrate was found in Calcutta. and the confession could not be recorded then and there.

     Another point about these searches is that there were search- witnesses, but they were illiterate. They could not write or sign their names.

     These accused persons were taken eventually to the Park Street Thana. There the documents were mixed up, and it is in that thana, that the search-list was signed by search-witnesses. Some of the documents were signed by search-witnesses. Inspector Frizoni was good enough to tell us that the witnesses took that on trust. The search-witnesses signed them innocently. The prosecution has not examined the search witnesses, except one or two unimportant witnesses amongst them. The point that I desire to make is that the searches have not been made properly, there is no proof that these were made legally, and no inference can be drawn from a particular document or article that it was found at a particular place. After the search was over the officer in charge directed the Sub-Inspector in charge of the local thana to record the charges against these persons. They told us that these persons were charged with offences of waging war, abetment of waging war, collecting arms and so forth. These charges were not cognisable offences. The Police had no power to arrest the persons. These persons after arrest were taken to the Police lock-up, kept there the whole night. On the next day they were removed to a house which is the office of the Detective Police. There a man of the name of Ramsodoy Mukherji was in charge. The accused persons were removed in the morning. The office is at 25, Boyd Street. In the meantime, Mr. Birley who took up the enquiry of the case, came to hear of the searches and the arrests an took the case to his own file from the file of Mr. Clarke, the .Joint—Magistrate. Mr. Birley made up his mind to try the accused. On the 3^rd of May, he made an order upon the Commissioner of Police, Calcutta, to send up these persons to him for enquiry. At that time there was no sanction of the Government; no complaint lodged by any body on the basis of that sanction. In the morning of the 4^th , three persons were produced before the Police Commissioner of Calcutta. In the afternoon of the 4^th they were produced before Mr. Birley at Alipore. There the confessions were recorded by Mr. Birley.

     I may here indicate that these confessions are inadmissible in evidence; because Mr. Birley had taken cognisance of the cases before the Government sanction was obtained, section 164 had no application. The proceedings were really a nullity.

     On the 2^nd May, they searched No. 4S, Grey Street. There

Page 197

they arrested Aurobindo Ghose, Abinash Bhattacbarjya and Sailendra Nath Bose. They were treated in the same way—hand-cuffed. Amongst the lot of exhibits, there is a letter which is known as the "Sweets Letter." It is No. 295. It is referred to throughout the trial as the "Sweets Letter." There is a statement in the exhibit that "it is time sweets should be distributed all over India." In this letter, Barindra signs himself as "Barindra K. Ghose." Our case is that it is a forgery. These documents were also taken to the Park Street Thana. Evidence is hopelessly discrepant on the point. They tried to make out that Mr. Creagan took all the documents to his house in Jorasanko. He says in his evidence that he kept all those things in the almirah in a lot and they were produced after a time before Mr. Denham at 25, Royd Street, for the purpose of examination. Mr. Denham was a District Superintendent of Police then on special duty. He is a witness in the case. There is another witness examined in this case Babu Radha Govinda Kundu. According to his evidence these documents were kept the Park Street Thana. They were taken from there to 2; Royd Street, bundle by bundle, for examination.

     Inspector Radha Govinda was present at the examination of the documents. He is most distinct on the point. 25, Boyd Street, is close to the Park Street thana. As each bundle was done with, it was sent back to the Park Street Thana. Another witness is Benode Behari Gupta. He was in charge of the documents till they were handed over to Mr. Denham for being produced in Court.

     The next search was made on the 2nd at I5, Gopi Mohun Dutt's Lane. Nirapado was found there. Letters and documents were also found in the house. The police tried to make out that all these documents were not taken to the thana. Although the exhibits of this house were taken from this house, they bear marks of witnesses of the garden. The explanation given by the prosecution witnesses is very unsatisfactory.

     The house at 38-4, Rajah Nabakrishna’s Street, was searched on the 2^nd May also. They found in the house Hem Chandra Das and arrested him. On the third there was another search. Next was at 134, Harrison Road. This was also on the 2^nd May. Asoka Nundi was arrested in this house. The house of Babu Dwijadas Datt, father of Ullasker Dutt was searched at Shibpore. On the 5^th May they produced all the accused except Asoke.

     Counsel next referred to the search of the houses of Hrishikesh Kanjilal and his father-in-law and his uncle. Samsul Alum held this search.

     On the 16^th Krishna Jiban was produced before Mr. Birley. He also made a statement.

Page 198

     The next date is the 18^th. In the meantime, applications began to be made for bail to Mr. Birley. He refused all the applications. On the 18^th, evidence began. The first witness examined was Inspector Frizoni. After the evidence commenced, Mr. Norton told the Court that some of the accused were not present. On the 15^th Mr. Norton put in the sanction.

     As soon as the sanction was put in Babu Bejoy Krishna Bose, vakil, objected on the ground that the Magistrate could not take cognisance before the sanction was put in.

     Counsel here read Bejoy Babu’s objection.

     Carnduff, J: What are you reading from ?

     Counsel. From the vakil’s notes ?

     Mr. Norton. Are they admissible ?

     Chief Justice. Yes.

     Mr. Das :—If my learned friends memory differs in any way I am ready to consider it.

     Continuing Mr. Das said that the Magistrate directed that a written petition should be filed. This was done. It was on behalf of Norendra Bukshi and Krishna Jiban Sanyal. The Magistrate’s order was "the sanction is not illegal. The Inspector has preferred a complaint and it is on the record. I am unable to under- stand what the learned pleader means." On the 19^th the learned Magistrate seemed to have thought differently. The trial was to have begun at 11 a. m. But Mr. Birley sent for my learned friend to his Chamber. Bejoy Babu returned at 1 o’c1ock. Mr. Birley returned ten minutes later. But none of the other pleaders were present at the interview. Mr. Birley passed the order immediately on return.

     On the 19th  Inspector P. C. Biswas was made to state something to give jurisdiction to the case.

     Counsel then said that between 26^th May and 6^th June, important developments took place. Inspector Radha Govinda Kundu went to Baidyanath on deputation. He made a search at a house known as the Seal’s Lodge, about 6 miles from Baidyanath. He found certain letters, documents and other articles at the Seal's Lodge.

     On the 2^nd June, a complaint was made against Birendra and another and Mr. Birley withdrew the case from the file of the Joint Magistrate to his own file. On the 23^rd June, one of the accused Norendra Nath Goswami became an approver. He was not examined till 6^th August. He was allowed to be examined day after day and other witnesses were also examined in the meantime.

     Mr. Das said that the charges were amended in February. He asked whether his client waged war, or abetted waging of war. If

Page 199

they abetted, then with whom ? But there was no answer to that. The charges were drawn up on the 18^th October. Mr. Norton opened his case from the 20^th to the 30^th October.

     Counsel read the objections to the addition of new charges. These objections the Sessions Judge had overruled. Whenever counsel asked him to supply further particulars about the charges, the Judge in each case said that all the particulars were in the charges.

     Counsel submitted that if their Lordships read the commitment order, they would find that it was merely a narrative of the evidence. In England, overt acts had to be mentioned in the charges. His submission was that he was entitled to be informed of the overt acts which brought him under the particular sections. He further submitted that one and the same person could not be held guilty of one offence and also of the abetment of it. If a person helped a certain insurrection, he might be charged with abetting, but not at the same time, with committing the insurrection also.

     Counsel further submitted that if the case under section 122 was to be gone into, he was entitled to all the particulars regarding the offence under that section. For it was altogether a distinct offence and law enjoined that the accused was entitled to all the particulars. There was no provision of law that a man who committed an offence should go and inform the Police of the offence committed by him. Counsel submitted that if the overt acts were not detailed to him, he could not know what his offences were.

     Mr. Das said that the charges against the appellants were framed first. Then a petition was put in by the Crown, which made it perfectly clear that the conspiracy with which the appellants were charged was a conspiracy to wage war. Counsel submitted that the prosecution at any rate ought to be restricted to that.

     The Chief Justice: I understand that the suggestion is, Mr. Norton, that originally the charge was of conspiracy to wage war and that by your petition you indicated an intention of charging the accused with conspiracy to wage war to subvert the Government of His Majesty. Now it is said that you are bringing in a charge of depriving His Majesty of his sovereignty in this part of India. It is not included in your original charge or petition. Do you take your stand on these charges ?

     Mr. Norton : I take my stand on these charges.

     Mr. Das: I ought to have been informed beforehand. When the charges. were amended by the Sessions Judge he refused to allow me to cross-examine the witnesses.

Page 200

     Mr. Das then said that the evidence was of three kinds, (1) confessions, (2) documents found at the different searches, and (3) the evidence of the watch witnesses. With regard to confessions counsel submitted that they were not admissible in evidence. If their Lordships accepted these confessions, the offence under sections 121 and 121 A did not arise. With regard to the documents found at the different searches counsel submitted that the searches were illegal and secondly inasmuch as the search witnesses were not called the searches were not satisfactorily proved. While on this subject he would point out that a great many of the documents were not proved. Some of the documents were not found in possession of particular accused persons and others in which handwritings were necessary to be proved were proved by the Sessions Judge himself by a comparison of different handwritings. With regard to the search-witnesses the evidence was of such a nature that on the examination- in-chief the evidence should not have been accepted.

     Mr. Das then said that he would deal with the question of law. His first point was that the court had no seisin of the case.

     The Chief Justice : Sessions Court ?

     Mr. Das: Both the Courts. My case is that Mr. Birley had no seisin of the case and therefore the commitment is without jurisdiction. Therefore the trial at the Sessions Court is without jurisdiction.

     The Chief Justice : What would be the effect of that ? There will he a new trial of those who have been acquitted and also of those who have been convicted ?

     Mr. Das: I think it does not necessarily follow. All your Lordships would do is to set them free from illegal custody. It would no doubt be open for Government to take whatever course they think expedient under the circumstances. If Government want to have a new trial they would not proceed against persons who have been found by the Sessions Judge on evidence not guilty.

     Continuing Mr. Das said that the assumption of jurisdiction by Mr. Birley without any sanction and without any complaint was illegal. The whole proceedings beginning from the time of arrest were illegal and it was one series of illegality from the beginning to the end. The arrest was illegal because they said that the arrest was made under section 54,.

     Carnduff, J : Arrest without warrant is illegal ?

     Mr. Das: Yes.

     The Chief Justice: Therefore there cannot be any Police investigation ?

Page 201

     Mr. Das : There cannot be any Police investigation without an order from the court. After the Magistrate had taken cognizance of the case and the accused persons were brought up before him people were arrested all over Bengal without any order from the court. If Mr. Birley was in seisin of the case why no application was made before him? The reason was that Mr. Birley might have said "where was the sanction, where was the complaint?”

     Continuing Mr. Das said that there was no doubt that the Magistrate took congnisance of the case either on the 3^rd , or on the 4^th or on the 5^th , and having taken cognizance of the case in the same way as if there had been a sanction or a complaint before him, he had assumed jurisdiction under terms of section 196 of the Criminal Procedure Code. On the 18^th he examined evidence under the charge upon which the appellants were placed before their Lordships. On the 19^th the Magistrate found out the mistake and in order to cure that defect he had the complainant brought up and his statements taken. Counsel submitted that did not cure the defect. The only way in which the Magistrate could cure the defect was by dropping the proceedings altogether and proceeding de novo. This the Magistrate did not do.

     Continuing Mr. Das said that with regard to section 12lA, his submission would be that the sanction put in did not cover the offence charged. As to section 122 counsel would submit that there was no complaint before Mr. Birley and therefore the sessions Judge could not frame a charge under 122. Further Mr. Birley did not commit the case under section 122. Counsel would not trouble their Lordships as to section 123 because the appellants were acquitted on that charge.

     The Court then rose for the day.

Page 202