The Alipore Bomb Trial

FOURTH DAY’S PROCEEDINGS

Mr. Norton who argued on the question raised as to the Government authority to charge under section 121 I. P. Code said that the Government authority did not specifically give sanction to prosecute under section 121, but that authority was intended to invest Inspector Purno Chunder Biswas with the power of adding charge under section 121 only. As to the commitment by Mr. Birley the question was did he commit legally or without authority. Counsel suggested Mr. Birley was entitled to add the charge under section 121 just as much as Inspector Biswas was entitled to add it to his complaint. If Mr. Birley was in law so entitled to do that, then the commitment, so far as section 121 was concerned, stood good.

     If the commitment under section 121 stood good, then Mr. Beachcroft, the Sessions Judge, was entitled to go on without

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the addition of any section at all. Assuming, however, that Mr. Birley had no authority to act as he did, that brought them to section 532 of the Criminal Procedure Code. Mr. Norton had gone very carefully through the petitions and he could not find any petition to show that the question of jurisdiction was raised before Mr. Birley during the enquiry before him. The only shadow of justification as to the question of jurisdiction having been raised was that the petition was very vague and merely alleged that the Magistrate had taken cognisance of this case before sanction was given. As a matter of fact the question of jurisdiction was not raised in the Magistrates Court. Hence under section 352 of the Cr. P. Code the Sessions Judge had power to alter or add any charge at any time before judgment was pronounced. The section which dealt with that was section 227 of Act V of 1898. Even under the old section 227 of the Act of 1882 it was held that the word " alter " included the word " add. " Before a charge could be altered or added the provisions of section 230 had to be complied with. Section 230 contemplated precisely the condition of affairs which existed when this case came up before Mr. Beachcroft. As a matter of fact, the Crown produced the sanction before the case went on. Section 230 expressly met a case in which no previous sanction had been issued. He submitted that sanction had been given for the charge under section 121A. All the evidence as to the arms etc., had been tendered and was relevant.

     Chief Justice. I understand your argument to be that when the Government gave its sanction on the 17^th May for a prosecution under section 121A and other sections, it had before it all the facts on which a prosecution under section 121A was sanctioned ? 

     Mr. Norton : That is so.

     Chief Justice. Are you instructed by the Government to tell us that the Government intended a prosecution under section 121 ?

     Mr. Norton: I have no instructions. Oddly enough I have never had any such instructions.

     Mr. Das said that section 230 or 227 or 532 had no application at all. The first question was —was there an authority to prefer a complaint under sec. 121. The second question was — had such a complaint been lodged. The next question was — assuming no such complaint had been lodged or no such authority given whether having regard to the commitment under Section 121, the Sessions Judge accepted it under Section 533. The last question was — if the Sessions Judge did not accept it under Section 532, did he add the charge under Section 230? Mr. Das submitted that none of these arguments did apply here, because there was no authority and no complaint. Counsel further submitted that Sections 532 and 230 did not apply here. He cited 25 Punjab Record No. 16 page 33.

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     The Chief Justice: We think under the circumstances it is better for us not at this stage to decide upon those points having regard to all that is involved in this case. We have had the advantage of hearing the arguments of both sides and we shall he able to dispose of the points at the right time. I think you (Mr. Das) better proceed with your argument.

     Mr. Das asked their Lordships to decide the points, before the final decision of the case, because in the event of their Lordships’ deciding one way or other, Mr. Das would probably withdraw some of the objections he had raised.

     The Chief Justice: I have no doubt that as the ease goes on Mr. Norton will have an opportunity to consider what his position is. Among other things,

     Mr. Norton is going to ascertain not what Government intended but what their instructions are as to intention.

     Mr. Norton : I will ask them what they intended.

     The Chief Justice : No, ascertain what their instructions are to you. We could not take what they intended.

     Mr. Norton : It is the same thing in another form.

     The Chief Justice: Oh, no.

     The only thing we wanted to know is what are your instructions from Government as to how far you should argue their intention at that date, the 17^th May. My reason for asking that is that you said you had not received instructions from the Government, and I thought it a matter of such considerable moment to the Government that they are entitled to direct you one way on the other.

     Mr. Norton preferred to have their Lordships' direction in writing: What he proposed to put to the Government was this :—l am desired. to obtain information regarding Government instructions as to how far we should argue that the authority of the 17^th May was intended to cover the charge under sec. 121.

     The Chief Justice : Yes, that will do.

     Mr. Das then said that he would deal with the evidence first. First he would deal with the evidence generally then he would take up the evidence regarding each one of the appellants. He had already indicated that the evidence in this case resolved into three classes, viz. (1) the confession, (2) the shadowing p witnesses, (3) documents including the searches.

     Dealing with confessions counsel submitted that five confessions were recorded on the 4th May, two on the 11^th and one on the 16^th . These confessions were put in by the prosecution as confessions under section 164. That section was in the chapter of Police investigation and on the 4th May Mr. Birley having taken cognisance of the case that chapter did no longer apply.

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     Mr. Das cited a case showing that when the accused were produced, that fact made out the cognizance of the case. He cited another case in 25, Calcutta, Le., the case of Empress vs. Ananto Ram. Counsel submitted that the cases cited proved that whenever accused were produced, that fact amounted to taking cognizance of the case. The facts of the cases cited, counsel urged, applied exactly to the facts of the present case. He cited a case from 5 Allahabad, page 253. In this case the confessions were tendered before the Sessions Judge, as evidence, who refused to accept the tender. Mr. Das cited a case from 3 Calcutta Weekly Notes., Le., the case of Lal Sekh, who murdered his master Kunjo and was tried by the Sessions Judge of Burdwan. In the cases cited, there was some complication. But in the present case, there was no such complication at all. There was a distinct declaration and over and above that, an order from the Magistrate to try the case.

      The Chief Justice asking Mr. Norton as to what the Crown had to say with regard to the statement, Mr. Norton submitted that there was nothing in the Criminal Procedure Code to prevent the accused from making their statement any time they chose. Mr. Norton further said that the Criminal Procedure Code could not overrule the Evidence Act. Apart from section 164 the confessions were admissible on facts and that they had been proved.

     C. J.: Mr. Das it is for you to show that they could not be proved and had not been proved.

     Mr. Das : I was then not present in Court, but my friend Mr. Chakravarty was there.

     Mr. Chakravarti at this point said.—I put questions to Mr. Birley suggesting that he had no jurisdiction as he had taken cognizance of the case beforehand. This point was raised in every form before the Sessions Judge.

     Mr. Das next submitted that the Magistrate did wrong to put questions to the confessing prisoners. For it was not the intention of the legislature which would show the Magistrates acquaintance with the facts of the case at the outset, the Magistrate should put questions so that the conditions imposed by the legislature were satisfied and after that the duty of the Magistrate was to ask the prisoner to go on with his confession or statement.

     Counsel submitted that when Barindra said he, Bibhuti and Ullaskar had gone to Chandarnagore for the purpose of the outrage, the Magistrate asked "What authority have you got to say that ?" Mr. Das observed that this was wrong on the part of the Magistrate. The Magistrate could say only: "Go on, say what you have got to say further?

     Counsel emphasised the point that the confessions of the accused other than Barin had been induced by Barin. Whether the confessions

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were admissible or not, was a matter for their Lordships’ consideration. in his opinion, it was the duty of the Magistrate who recorded the confessions to note specifically that the confessions had been induced by Barindra.

     Continuing counsel observed that the object of collecting and training the band of young men was to touch them spiritually to face danger and the object of collecting arms was with the object of providing against a far-off revolution. The training and collection had nothing to do with the overt acts.

     Before the proceedings had closed for the day, Mr. Norton submitted to the Court that he was informed by the Legal Remembrancer that it was not the intention of the Government to include section 121 in the charge so far at the first batch in the sanction granted on the 17^th May was concerned.

     Mr. Das : There is then no longer any charge under section 121 as regards the 1^st hatch.

C. J. : No. Mr. Norton will consider the matter and will inform you tomorrow.

The Court then rose for the day.

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