The Alipore Bomb Trial

THIRD DAY’S PROCEEDINGS

Mr. Das continuing his address said there were two questions :— First, what the construction of that section was and, second, whether in the light of the cases he had cited, it was no longer open to their Lordships to construe that section. As regards the question of construction of the definition of a European British subject there was no reservation of any kind. Section 447 laid down in clear terms that where the accused was, but not claimed to be, a European British subject, the commitment should be to the High Court. He desired also to bring to their lordships’ notice section 455 which seemed to him meaningless if the construction he was inviting their lordships to accept was not the right construction. That section contemplated the possibility, of the trial of a person as a European British subject without any claim being put forward by him as such. If the construction which the cases he had cited put upon section 454 was true, there could not be any such possibility. He would not trouble their Lordships further upon the question of construction.

     Then as regards the case in 6 Calcutta he submitted, first, that whether it was exactly the arbiter or not it was not absolutely necessary for the decision of that point and, second assuming it was a decision on the construction of all these sections taken together, the point he was now arguing before their Lordships was not raised in that case. The construction he was now inviting their Lordships to put upon that section was not a construction which was pressed upon the Court in the course of the argument in that case. The argument was that a person might waive his right to the status of a European British subject as far a particular procedure was concerned, retaining in him the right so far as the question of jurisdiction was concerned.

     After reading an extract from the judgment in the case reported in 6 Calcutta Mr. Das said the point he was now arguing before their Lordship had never been decided. Although he fully conceded that the view which the learned Judges took in that case was that all these sections should be taken together, yet the point as to whether a particular accused person was a European British ‘ subject was to be decided on a claim so far as the operation of the section was concerned, it had not been met nor had it been considered. There was a difference in the words in the two sections. One section dealt with the case of an accused who was a European British subject and the other with the case of an accused who claimed to be a European British subject.

     The other two cases were those reported in 16 Madras, 208 and 12 Bombay page 562. In both these cases the view of the learned Judges in the Calcutta case was accepted in toto.

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      Chief Justice: Mr. Das, you will have to bear: this in mind. . All these cases were decided before the present Criminal Procedure Code came into operation and with these decisions in existence the Legislature deleted the word which gave rise to these cases.

     Mr. Das: If upon that your Lordships hold that the construction is not as I submit, there is an end of the matter.

     Chief Justice: If we look at the question broadly what we find is — that apart from this particular chapter 33—we have no jurisdiction. The question then arises whether the exception must be taken to be established in this particu1ar case.

     Mr. Das: That exception is else worded in general terms, the words being " authorised by law.” We have to find out what is the meaning of " authorised by law."

      Chief Justice: We are in possession of the whole argument and will consider it.

      Mr. Das said the next question was whether there had been n. waiver such as was required in the case reported in 6 Calcutta. The waiver which the Judge insisted upon there was a waiver of full the rights in that chapter.

     Counsel referred their Lordships to the order sheet of the 13^th August last where Mr. Birley said he asked Barindra Kumar Ghose whether he claimed the birth certificate produced as his, that Barindra said he did, that he (Mr. Birley) had no reason to doubt that Barindra was born at Croydon and was therefore a European British subject, that he thought it right to ask Barindra whether he claimed to be tried as a. European British subject and that he would accept Barindra's answer on the 19^th August so as to give Barindra as opportunity to consult his legal advisers. On the 19^th August Mr. Birley told Barindra. he would be committed for abetment of murder and that if be claimed to be tried as an. European British subject he would be tried by the High Court but if he waived that right he would be tried by the Sessions Court. Barindra. said he did not want to claim his rights. So far as this particular charge was concerned, continued Mr. Das, it was not put to Barindra. what his rights were and what difference it would make him if he either claimed or waived his right, to be tried as a European British subject. The point was of importance because in a charge of abetment of murder the trial was by jury. Therefore Barindra. might very well have considered that he would prefer to be tried by a. jury instead of by a mixed jury of the description mentioned in section 451. But where the charges were these net triable by a jury under the ordinary law it made a. great deal of difference, because under those circumstances Barindra. might very well have chosen to say. "I prefer to be tried by a mixed jury." Further, Barindra was not represented on

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the first day. Barindra. was represented by a mukhtear, but after that be was undefended.

     Continuing Mr. Das said the question was whether under those circumstances there was a. waiver or not. If their Lordships accepted the cases he had cited and held there was a waiver, he had nothing more to say.

     The next question was whether if Barin could waive for himself he could waive for others, who were being jointly tried with Barin. The joint trial in this case was practically under the orders of the High Court and the question was whether the right to be tried by Jury was such that Barin himself could waive. In this connection it would be remembered that at the Sessions Court some charges were added and with regard to those charges would it be said that there was waiver ?

     Mr. Das then said that he had certain objections to the charges and he desired to deal with them now. Some of the charges were not legal charges at all, as there was an initial and fundamental defect in the charges in that they assumed possibility of a. conspiracy in relation to offences under sections 121, 122 and 123 of the Indian Penal Code. There could not be any offence of conspiracy in India except with reference to particular section—121 A and three or four other sections, with which they had nothing to do. The case for the prosecution was that the accused persons did something which firstly amounted to waging of war and secondly if they did not, that is to say, if the Court held otherwise, they at any rate amount to an attempt. Counsel submitted that they could not charge a man with a crime and attempt to commit the crime. In support of his contention Counsel wanted to cite cases.

     The Chief Justice. Mr. Norton, do the Crown charge conspiracy apart from Section 121 (A) ?

     Mr. Norton : No, my lord.

     The Chief Justice : It relieves you Mr. Das from citing these cases.

     The Chief Justice (to Mr. Norton) ; Therefore there is no charge of abetment in the sense of conspiracy under section 121 ?

     Mr. Norton : Yes.

     Mr. Das then submitted that the charges under section 121 (A) 122 and 123 I, P. Code were illegal.

     Continuing Mr. Das said that the next point that he desired to raise was the misjoinder of charges. The charges upon which those persons were tried were under sections 121, 121 (A.) 122 and 123 and counsel would submit that there was a. misjoinder of charges. These persons could not be tried under those charges.

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There was misjoinder of persons rather than misjoinder of charges and the whole question was whether the different offences could be alleged to have been committed in the course of the same transaction. The law on the subject was laid down in sections 233 to 239 of the Criminal Procedure Code. The general proposition was set down in section 233 and the other sections were exceptions to the general propositions.

     Mr. Das continuing said that there was no such association from the beginning to the and, which justified a joint trial. Counsel cited a case from Taylor in support of his point. He held that association was absolutely necessary to justify a joint trial.

     Mr. Das cited I. L. R. 29 Bombay 499, l. L. R,. 30 Bombay page 49. He cited also page 54. Counsel submitted that continuity of intention was impossible in the case.

     Counsel next cited I. L. R., 16 Calcutta. Mr. Das submitted that since some persons have been found guilty of waging war while others have been found not guilty of that charge, so there had been a misjoinder of charges with regard to section 123. The persons who joined later on could not be tried jointly under section 121A.

     Mr. Das submitted that he had only one other point on the question of law and it was as regards the complaint. The definition of the word required that an allegation, written or oral, should be made before a Magistrate, who was a Court.

     Continuing counsel submitted that the offence of waging war being complete in December, 1907, it could not be said that the same offence was being carried on in April, 1909.

     Mr. Das then entered upon the question of misjoinder of persons and also misjoinder of charges. The charges under section 123, he held, could not be joined with the charges under sections 121 or 121A, or any one of the other charges under the various sections. In the lower court, it was pointed out that the accused persons joined the conspiracy at different times, so the learned Sessions Judge held that those who joined the conspiracy after December 1907, were not guilty of any offence under section 121. The accused could only be joined as co-conspirators on the ground that the very fact of their joining the conspiracy was a sort of implied agreement between them and the other members of the conspiracy.

     Mr. Das asked whether it would be possible to decide the preliminary point about the inclusion of section 121 in the charges.

     The Chief Justice asked Mr. Chuckerbutty to say his say on this point.

     Mr. Chuckerbutty observed that his position was not quite so favourable as that of his friend Mr. Das. After the case against

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the second batch was gone into an authority was produced. His client was not sentenced to death.

     The Chief Justice remarked that it would be better to deal with the first batch now and asked Mr. Norton to argue on this point.

     Mr. Norton suggested that would be very difficult and there would be terrible disorder if they were not treated together.

     The Chief Justice decided to hear of that point as regards the first batch.

     Mr. Norton submitted that there was authority under section 121A and section 121A contemplated section 121. Hence there was sanction under section 121.

     Chief Justice: When sanction was given of attempt at murder it is not a sanction of murder.

     Mr. Norton said that as regards the first batch Mr. Birley had authority from Government to prosecute under 121A and he was also authorised to take cognizance under any other section of the code which would be disclosed in evidence.

     Chief Justice. No, he was justified under complaint. The Government had only in mind the complaint.

     Mr. Norton. Government knew well when authorising Biswas that prosecution under section 121 was open.

     Chief Justice. The whole document has relation to the complaint.

     Mr. Norton. I think the Government had in mind the Magistrate and not Biswas.

     Chief Justice. But the words are complaint under certain sections which are mentioned.

     Mr. Norton. And to prosecute under other sections hereinafter found. The Government had in mind the complaint and "to prosecute," They left the discretion to the Magistrate to insert any other section which may be found applicable. It seems to me the words " may be found applicable " does not mean a complaint.

     Chief Justice. We take it you mean by ‘ found," found by the Magistrate as result of his enquiry.

     Mr. Norton: Yes.

     Mr. Norton then enumerated all the sections which required a sanction from the Government and said that the only section the Government had in view was section 121 and it left the discretion to the Magistrate to frame a charge under section 121.

     Chief Justice: Is Purna authorised to lodge a complaint under section 121 ?

     Mr. Norton : If in the course of trial Purna said that a charge under section 121 was sustainable.

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     Chief Justice: You are now shifting your ground. You said the Government left the discretion to the Magistrate to frame charge under section 121 and now you say it was also an authority on Biswas.

     Mr. Norton : On the complaint of Biswas.

     Chief Justice: But in his examination Biswas says he has no authority to complain under section 121.

     Mr. Norton: It seems to me that he has in view section 121 when he complains.

     Mr. Norton then read section 230 and said if a charge was added the court should not proceed with the trial until the sanction was produced. Here the trial did not proceed until the second sanction was produced.

     Chief Justice: Do you notice what your sanction is? Did Biswas prefer a complaint before the Judge as said in the sanction ?

     Mr. Norton : He did not in the terms of the sanction. There is a section which forbids Sessions Judges to entertain a complaint.

     Chief Justice: If Biswas is considered as the interpreter of Government then Biswas thought he had no sanction to proceed under section 121.

     Mr. Norton: He thought it was left to him whether or not he should complain.

     Mr. Norton submitted that under section 532 Mr. Beachcroft had jurisdiction to accept Mr. Birley`s commitment.

     He then read a case reported in 26 Bombay. The court here rose for the day.

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