The Alipore Bomb Trial

THIRTY-SEVENTH DAY’S PROCEEDINGS 

     Mr. Norton continuing his address on behalf of the Crown referred to the marks on Indra Nath’s body and read the evidence relating to them. It was incumbent on the defence to have given substantial evidence with regard to the so called marks and thus to have `given the Crown an opportunity of testing the truth or otherwise of the story put forward as regards the marks on his body. As regards Indra Nath’s connection with the Chatra Bhandar it was admitted that he was the Secretary of that Association, 40 per cent of the earnings of which were to be set aside for the good of the country. Indra Nath’s name also appeared on the back of a piece of paper with the names of Barindra, Harish and others, and Counsel submitted he relied on that fact as strong evidence showing the intimacy between Indra Nath and the other men, whose names appeared on that paper.

     The Chief Justice : How is it brought home to Indra Nath ?

     Mr. Norton: I can only use it as evidence to show that he was one of the co-conspirators in this case. If I have no other evidence then this document is useless, but if I have evidence to connect him with the conspiracy then this piece of paper becomes of great importance because it shows that he was connected with the persons whose names appear on the back of that paper, conspicuous among whom are Barindra and Harish. I can bring it within section 10

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     The Chief Justice : Then in order to bring it within section 10 you will have to show that it is a statement made by one of the conspirators.

     Mr. Norton : Quite so.

     The Chief Justice: The only evidence we have which is connected with any individual is that it was found in Nikhileshwar Ray’s house.

      Mr. Norton : Yes.

     The Chief Justice: Who is the conspirator who made this statement ?

     Mr. Norton : I say that every person whose name is on the back of that document assisted in making that statement.

     The Chief Justice : Supposing one of the newspaper reporters writes your name down as having been seen walking along Chowringhee. Would you make that a statement.

     Mr, Norton: No. If there was evidence to show that that re- porter and I had been permanently connected together then it would be evidence.

     The Chief Justice: Who made this statement ? Mr. Norton: I cannot say who made it. I say that they all made it.

     The Chief Justice: Supposing it was a statement written by Nikhileshwar, kept by Nikhileshwar himself and found in Nikhileshwar’s possession ?

     Mr. Norton: Then it would not implicate any one except Nikhileshwar and he has been acquitted.

     Continuing Counsel said that this document came from 41, Champatollah Lane which was the Sadhana Press and the latest connection between the Sadhana Press and 441, Champatollah Lane was in July, 1907. He submitted he had brought Indra Nath within the general purview of the law which said that when there were two or more conspirators everything done or written by one was evidence against the others.

     Counsel next referred to the connection in the Jamalpore case in 1907 when Indra Nath and Sishir were bound down under section 107 of the Criminal Procedure Code. He submitted that he was entitled to use the judgment in that case not as a conviction but for the purpose of showing the circumstances under which Indra Nath and Sishir were bound over.

     The Chief Justice: Are you entitled to use the opinion of the Judge in one case as evidence in another case ? You remember Lord Chief Justice Bramwell’s decision in the case of Seaman and Owen.

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     Mr. Norton: I rely on section 43 of the Evidence Act which Says " judgments, orders or decrees, other than those mentioned in sections 40, 41 and 442 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act."

     The Chief Justice: You don’t want to prove the conviction ?

     Mr. Norton : No.

     The Chief Justice: You want to prove that he was not convicted ?

     Mr. Norton: No, I want to prove that at a certain place he was found doing things which resulted in his being bound over.

     Carnduff, J : You want to prove association ?

     Mr. Norton: Yes, with Sishir.

     The Chief Justice: You want to prove that Sishir and he were together.

     Mr. Norton : Yes, with revolvers. A Mahomedan was shot in those riots. I have some independent evidence also,

     The Chief Justice : Can you cite an authority ?

     Mr. Norton : No.

     The Chief Justice : Have you looked for authority ?

     Mr. Norton : Yes, I have not been able to End any.

     Mr. Norton then read the oral evidence on this point and said that his junior had found a case reported in 1 Calcutta Weekly Notes which supported his view as to the admissibility of this judgment.

     Mr. Chackervarti: I wish to point out to your Lordships that there is a case in 4 Calcutta Weekly Notes which dissents from that view.

     Mr. Norton: So much the better. Then your Lordships can decide between the two. I don’t care about the connection.

     The Chief Justice ; That Sishir and Indra Nath were at Jamalpur on a particular day.

     Mr. Norton: Yes, in connection with the Swadeshi movement. One of the objects of this conspiracy was to terrorise persons into accepting the views set forth in the "Yugantar."

     Mr. Norton then referred to Indra Nath Nandi’s connection with the "Chatra Bhandar" and said that that was the case against this accused, who refused to answer any question before the Sessions Judge.

     Carrnduff, J : Before you leave this case there is one matter I wish to mention. It has been said that you ought to have called

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Colonel Nandi. Personally I am satisfied that there was no obligation to call Colonel Nandi for the reasons you gave on Wednesday. It has also been said that the Court might have called Colonel Nandi. It seems to me that it is open to us even now to call Colonel Nandi to give him an opportunity of giving evidence.

     The Chief Justice: With regard to that I must say distinctly that I have very strong objections to the Court forcing any witness on the parties at this stage. It is a most dangerous practice, but if an application is made I will listen to it.

     Mr. Norton : It is not for me to make that suggestion.

     Carnduff, J : I don’t wish to force him in any way, but I think an opportunity might be given to him even now in the interest of justice.

     Mr. Norton: I have an extremely strong disinclination to make any such application for "many reasons, but I shall not resist any application being made by the other side to call him. The gentlemen for the defence had ample opportunities of calling Colonel Nandi. They did not do so and the only ground suggested for their not doing so was that they would lose their right of reply. If they believed that Colonel Nandi’s presence was desirable in the interest of truth and justice they should have shut their ears to any suggestion of losing the right of reply in favour of Aurobinda or anybody else.

     The Chief Justice ; I suppose if we accede to an application to Colonel Nandi being called then we should have to accede to the requests to call any number `of witnesses on the same point.

     Carnduff, J : I make the suggestion only because it was said by the defence that as Mr. Beachcroft had not called Colonel Nandi we might call him. If that is so I would rather that justice be done. Let us give him the opportunity of coming now.

     Mr. Norton : For the Crown we shall raise no objection.

     The Chief Justice : How about other witnesses ?

     Mr. Norton : That is another matter.

    The Chief Justice: It will alter the shape of the appeal altogether.

     Mr. Norton : It will be endless. There was no obligation of any sort ― intellectual, moral or judicial—on the part of Mr. Beachcroft to call Colonel Nandi. Mr. Beachcroft was not bound by any law that I know of to call Colonel Nandi. The other side tried to get Colonel Nandi’s evidence without losing the right of reply. No Judge is bound to call any witness except when the interests of justice in that particular case are to be served. The defence had not opened their case and it was open to them to call Colonel Nandi then or even at the last moment.

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     As regards the three other accused Sishir Kumar Ghose and the two Sen brothers Mr. Norton left their cases to their Lordships’ hands and proceeded to deal with the questions of law involved in the case.

     Mr. Norton then submitted that the alteration of the charges and the joinder of charges did not prejudice the appellants in any way, and in support of his contention cited several cases, Counsel next dealt with the substantive law with regard to the question of conspiracy. According to the Indian Penal Code there was no offence of substantive conspiracy except in Section 121 (A). All other forms of conspiracy must fall under the other section plus the section of abetment, Section 109, and in those cases it was necessary that there must be some overt acts. But under Section 121 (A) the law was different, the offence under that section being substantive offence in itself it was committed so soon as evidence was forthcoming to prove the intention and agreement. In that respect, the Indian law differed in no way from the English Law. In support of his contention, Counsel cited 14 Cox 505, 15 Cox 291, Law Report, 3 House of Lords 306, and several other cases. He then said that despite the absence of military display, science had put into the hands of the accused infinitely more powerful weapon than the force ordinarily used by the soldiers, and that force was used for the purpose of disseminating sedition throughout the country. This teaching went on and for what purpose? To secure the complete independence of the country. That brought the appellant within the purview of waging war. In addition to that they knew that the destruction of the Queen’s property and of her subjects’ lives was in itself an act of waging war. Here the appellants attempted to take the lives of the Lieutenant-Governor, Mr. Kingsford and the Mayor of Chandarnagore, and these attempts were not made in vindication of the spirit of revenge but to terrorise Government. From the cases cited it appeared that the destruction of public buildings was an act of waging war and if that was so the destruction of human lives was certainly an offence of waging war. In this connection he would say that the charge of conspiracy might be well founded even if the parties did not know each other. These were all the points he would deal with concerning the points of law and the permission of the court he would now leave the rest of the case in the hands of his learned junior, Mr. Harry Stokes.

     The Chief Justice: I should like to hear your views on Section 122. There is a further point. Mr. Das contends that on any event the earlier numbers of the " Yugantar" are not evidence under Section 10 of the Evidence Act, that only four articles come within the period of the charge and therefore he maintains that the earlier articles, all the articles other than those four,

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can only be utilised against those to whom they are directly brought home.

     Mr. Norton : We already dealt with those points.

     The Chief Justice: I think you dealt with the question of multiplicity of charges ?

     Mr. Norton: It is a very short answer. It is a " transaction" of the conspiracy and therefore it comes within Section 239. Cr. P. C.

     The Chief Justice : Your charge under Section 122, assuming you establish your charge under Section 121-A, would not be anything distinct. Supposing we convict under Section 121 (A) it would not be right for us to convict under Section 122. The case is more clearly under Section 121-(A) than under Section 122.

     Mr. Norton: They were only alternative charges. I never asked for a double conviction.

     The Chief Justice: I think it is fair to mention it now. It is in relation to confessions. First of all, let us go back to Section 164: (reads). Mr. Das’s argument has been that here the confessions were recorded after the commencement of the enquiry. There are just two points. First of all there is this :—Whether the words "before the commencement of enquiry" are not to be limited to "or at any time afterwards’ The Act of 1882 makes it clear because it has a comma after "chapter," so it seems to be in the course of investigation under this chapter or any time afterwards before the commencement of the trial. But the` comma is not in the present act. This is one point. The next point is this. The words are "before the commencement of the enquiry or trial." When does this enquiry commence? The enquiry in this case commenced on the 3^rd May, before the confessions were recorded. If you take section 190 Cr. P. C. which is part of chapter 15 dealing with jurisdiction of courts in enquiries and trials you will find much of the phraseology has been borrowed from that section. "A"—place of enquiry and "B"——conditions requisite for the initiation of proceedings. Those conditions must be confirmed. What are they? First receiving the complaint. There was no complaint here on the 4^th May. Then upon information received from any person other than a police officer. Here Mr. Clarke was the person who gave the information. He was not a Police Officer. Then the words are "or upon his own knowledge." It does not appear that he had his own knowledge. So that the point that Mr. Das will have to consider is whether it can be said that proceedings were initiated or could be initiated except in one of those three conditions and none of those points were apparently satisfied until the 18^th . I am not expressing any conclusive opinion now. I merely indicated what struck me.

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     At this stage Mr. Norton left the Court and Mir. Harry Stokes went on dealing with the rest of the case.

     Mr. Stokes in dealing with the case of Sishir Kumar Ghosh said that the case against this man was a very serious one. He was an active member of the conspiracy with full knowledge of its objects.

     The Chief Justice : Do you attribute any particular part to him.

     Mr. Stokes: He was taking the part of a missionary as indicated in Barin’s books. There was a suggestion in those books that he was something more than that-that he was to join the first man in the first circle of workers in addition to his own work.

     The Chief Justice : Are you going to ask us to hold that he waged war ?

     Mr. Stokes: He was guilty of the conspiracy of waging war. He was not found in connection with any of the overt acts.

    Continuing Mr. Stokes said that on the 29^th January, 1907, Sishir left school and then instead of taking up any profession he got connected with the Chatra Bhandar and the Yugantar. They also found Sishir taking part in certain political movements in Jubbulpore. They however did not find much trace of Sishir towards the end of 1907. But Counsel thought, it was clear that he was connected with Barin at any rate before that. Though he was arrested in the garden, his defence was that he did not know anything of what was going on in the garden. Counsel then cited some exhibits to prove that he was guilty.

     The Chief Justice : What is his age.

     Mr. Stokes : About 21 years.

     Mr. Stokes then went on dealing with the exhibits and had not concluded when the Court rose for the day.

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