The Alipore Bomb Trial

TENTH DAY’S PROCEEDINGS

 Mr. Das continuing his address said, he had already made his submissions on the questions of law bearing on the searches. He desired only to give their Lordships a reference from the Bengal Police Code, Volume I, l897, rule 65, clause 4 sub-clause (m) page 433. These rules were proved under section 102 of the Criminal Procedure Code.

     After reading rule 65 of the Bengal Police Code, Mr. Das said : —- If any articles are found in execution of a search warrant they have to be produced before the Court which issued the search warrant and the things are to be disposed of by the order of the Court. As a matter of fact, we have got no order sheet, no order of the Court as to what is to happen to the things. What happened was that after the search, they remained in the possession of the police. My objection is not merely a technical one. The difference is this :— If the articles are produced in Court the accused persons would have the right of inspecting them. They could apply to the Court and have a list made and they could ask their legal advisers to look at them. In fact the articles are held subject to the orders of the Court. But if, on the contrary, you take a search warrant, execute it, get hold of the articles and remove them to the thanah, the accused persons, or their friends, or their legal advisers, or any body on their behalf would have no opportunity of seeing the articles or making a list of them or checking the examination of those articles by the police officers. My submission is that it introduces an element of suspicion and uncertainty into the whole of the search. In that connection I may further submit that even after the enquiry commenced, we frequently applied that the things should be kept in the possession of an officer of the Court― not a Court Inspector or Sub-Inspector — but in spite of our request,

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they were allowed to be kept in possession of the police from start to finish, from the time they were produced until the conclusion of the trial before the Sessions Judge. It is the intention of the Legislature that for the safety of persons whose houses are searched they should be conducted in a particular manner.

     With regard to the confessions, Mr. Das said, he had already submitted that they did not come under section 164. As regards that other branch of the argument he had considered the matter further since he had addressed their Lordships on the point. The argument against the defence was that though these might not he confessions which could be recorded under section lat of the Criminal Procedure Code, nevertheless they were admissible under section 21 of the Evidence Act, and inasmuch as there were no other provisions which made such admissions inadmissible, they might be admitted in this case.

     Counsel then went on to say, he had looked into all the cases he could get on that point and he would place before their Lordships certain cases he had got, one of them being against him. With their Lordships’ permission he would first place before them the case which was against him.

     Mr. Dass said that the case appeared in Unreported Cases published by Rattan Lal of the Bombay High Court. The case was that of Queen Empress vs. Narayan, decided in November 1893, but the names of the Judges were not known.

     After reading the judgment in that case, Mr. Das remarked that the other cases in Calcutta, Madras and Allahabad were against the view expressed in that Bombay case. The other cases were those reported in 9 Madras, 2 Calcutta Weekly Notes, and 13 Allahabad. Then there were two subsequent cases reported in 8 Calcutta Weekly Notes, which, though they did not discuss the question, excluded a statement taken under such circumstances.

     Continuing Mr. Das said that the other case was the case of Satnarain Tewari against the Emperor. Counsel cited that case before.

     The Chief Justice : What volume ?

     Mr. Das: 10 Calcutta Weekly Notes, 52. There their Lordships held that the particular statement being taken at the time when the Magistrate was enquiring into an offence under section 202, it was not admissible under section 164. Therefore it is not a stage under section 164: because he has already taken cognizance.

     With regard to the English cases Mr. Das desired to refer their Lordships to the English Statutes which were quite different from the Indian Statutes. He then cited 11 and 12, Victoria, section 18,

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chapter 42 and 6C. W. N. 825, and said, if they looked into the Criminal Procedure Code, they would find it contained careful provisions which contemplated that every stage of the trial should be gone into with a great deal of particularity. But there being no provisions for that, the intention of the Legislature must be taken to be that only at certain stages, such confessions should be recorded. Counsel then read section 203 of Act 25 of 1861. This provision was taken away in the Code of 1872, and since that time it was excluded. That was a fair indication of what the intention of the Legislature was. Counsel submitted that there were ample reasons for excluding that part. It was clear that the Legislature could not trust the police officers. There were various enactments, which were passed from time to time for the protection of the accused persons from the police officers and their Lordships would End a. clear indication of it in the judgment of Mr. Justice Mahmud in the case of Babulal. Further, in this country there was no separation of the Executive from the Judicial. Counsel on those grounds submitted that the confessions were inadmissible. He, however, did not wish to refer to their Lordships the case reported in 13 Calcutta 345.

     Mr. Norton : While on this point I wish to draw your Lordships' attention to the Full Bench case reported in 15 Calcutta 595.

     Mr. Das : In that case the confession was recorded by an Honorary Magistrate of Calcutta and the question was that the provisions of the Criminal Procedure Code did not apply to the Calcutta Police, and therefore section 164, was not applicable to them. Not only that section but that chapter of the Code. That is a different question.

     Carnduff, J : They held that chapter 144 of the Code did not apply ?

     Mr. Das: Yes, my lord. That has of course nothing to do with this, because that was in Calcutta and this was in the 24- Pargannas.

     Continuing Mr. Das said that he had another objection to the confession and that was this : Before a confession was admissible, the Magistrate should, by putting questions, exclude not only threat or pressure but even such inducement as would make the confession inadmissible. As for instance, the Magistrate did not put to Barin whether he was induced by any body to make the confession. Counsel contended that unless that question was included, the confession was inadmissible. In support of this contention, Counsel cited 1893, 2Q, B, page 12. It throws upon the prosecution the burden to prove affirmatively that the confession was voluntarily made. In the present case, not only there was no record of it but the evidence of Mr. Birley proved that there was no such question put to the accused.

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     The case of Barin, said Mr. Das, might be looked on from two points of view. Apart from the confession what was there against him? If their Lordships proceeded on the confession, it would be unnecessary, with regard to good many points, to discuss the evidence, because the evidence would not show anything more than what he said in the confession and inasmuch as there was a question as to the admissibility of the confession Counsel would take it in both ways. Apart from the confessions there were the evidence of the Jugantar articles, the evidence of what was found in the garden, the fact that he was found at the garden, the overt acts and the evidence that he was found on certain occasions at No. 15, Gopi Mohon Dutt`s Lane, and at 38-2 Harrison Road, by the search witnesses. From all those evidence, except the Jugantar articles, no offence could be brought home against him either under section 121 or section 121A, or section 122, because they were perfectly consistent with the offence under the Arms Act alone, because they were perfectly consistent with the committing of dacoity and because they were perfectly consistent with the preparation of bombs for the purpose of killing particular persons. From these they could not get the object.

     Carnduff, J : You are putting aside the Jugantar articles?

     Mr. Das: Yes. I shall contend that the articles in the Jugantar are inadmissible in evidence.

     Continuing Mr. Das said that the particular object which was necessary under section 121A, could be gathered from the nature of the article that were found and the overt acts that were committed with the help of some of these articles. Counsel submitted that the articles disproved that object because what they got in evidence was that there was a bomb outrage at the house of the Mayor of Chandernagar, and that there was an attempt on Mr. Kingsford. Did these different acts show that they were conspiring to wage war against the King? No. These acts showed that they had particular grudge against particular persons and for particular reasons. So far as the attempt on the Mayor was concerned, that was admitted, the prosecution case being that he did not allow a public meeting to be held at Chandernagar. So far as Mr. Kingsford was concerned, the Sessions Judge had found that it was an act of revenge. Counsel submitted that the same reason would be applied to the attempt on Sir Andrew Fraser. However, for argument’s sake, they would take the worst view of the case. Then how could it be shown that in attempting on the life of Sir Andrew Fraser they were waging war against the King ? The essence of waging war was that there should be opposition and that it should not be restricted to particular individuals. If they attacked a particular house, or if they killed a particular man, that would not waging war. In proving the waging of a war, the prosecution

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should prove not only the generality with regard to the scope of the particular acts but there must be such a. thing from which it was possible for any human being to think that by that act they would be subverting the government of the country. Was the attack on Sir Andrew Fraser an offence of that description ? No. It might be a crime ; it might be one of the serious crimes of the Penal Code, but there was provision for it in the Indian Penal Code. Of course, Counsel was assuming the case to be entirely true. In conclusion Counsel submitted that the acts in question were not such as would bring the case under section I2l.A. Then they would assume for arguments sake that an number of bombs, certain pistols and something else were found there which showed that their intention was to prepare bombs. Certain plans were also found there and the case for the prosecution was that they were in- tended for the purpose of committing dacoity. Was that consistent with any object other than the object mentioned in section 121.5. ? As long as the prosecution could not satisfy their- Lordships that the object could not have been anything else but those intended under section 121 A, their Lordships would not find them guilty. So far as the overt acts were concerned, they were not indicative of the particular object and the same argument would apply with regard to the things found there. For these reasons section (121 A) is disproved. The prosecution was fully alive to these points and that was why they wanted to bring in the "Jugantar" into it. Counsel submitted that the "Jugantar" evidence was not admissible because a great many of them were dated before the period of the charge — in fact all of them. It was further stated that Barin was connected with it and that the articles were acts of Barin. Counsel submitted that prosecution had not proved them as Barin’s acts. How could that be any evidence in a case of conspiracy ? Whose intention did they represent ? Of Barin ? They could not give the previous intention of a particular person unless they proved that it was the common intention. They simply amounted to this, what Barin did or what he said at a time when it was not the case for the prosecution that there was a conspiracy, went in evidence. Under what section was that admissible ? Under section 14 ? Counsel would submit not, because the intention must be the intention of the conspiracy. If they left out the Jugantar evidence then there would be nothing.

     Mr. Das then said that the Sessions Judge based Barin’s connection with the Jugantar on Ul1sskar’s confession which again was not admissible because it was not voluntary. The Sessions Judge had admitted the exhibits, subject to the comparison of hand- writings. As regards exhibit 1217. the Sessions Judge said it was "apparently in the handwriting of Barin." He did not say how he came to that conclusion. There was no prima facie proof of handwriting.

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     The Chief Justice : The whole question, it seems to me, is this. By whom the comparison is to be made ?

     Mr. Das : My submission is that the words "to be proved" in the section really means to be acted upon by the Judge. The Chief Justice: I suppose you do not deny that for the purpose of proving the handwriting it is necessary to put it into the hands of an expert.

     Mr. Das : That is one of the methods of proof.

     Mr. Das continuing said that that was the only proof of Barin‘s connection with the Jugantar. The evidence of Lahiri showed that Barin was unconnected with the Jugantar.

     The Court then rose for the day.

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