The Alipore Bomb Trial

TWENTY-NINTH DAY’S PROCEEDINGS 

     Mr. Norton continuing his address on behalf of the Crown said that on Thursday he was seeking to show that Mr. Birley in recording the confessions, which he dig on the 4^th May was competent under the law. to record them under Section 164, inasmuch as the law enabled him so to do, because at that time it was impossible, that he could take cognizance of the offences for which these men were being tried.

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     Mr. Norton then went on to say that his argument was that Mr. Birley was well within his rights when he acted under section 164. He based his argument on the fact that Mr. Thornhill merely acted as a conduict pipe in issuing search warrants in respect of investigations started up-country of which there was a complaint in the and writing of . Thornhill himself on the back of the application put in by Inspector Purna Chandra Biswas. Therefore Mr. Thornhill was not in seisin of the case and hence there was no question of a transfer from Mr. Thornhill to Mr. Birley. The right of Mr. Birley to act as he did would depend upon the question as to how this case came before him. It was quite clear . Birley got knowledge of it on the 2^nd or .3^rd , came to Calcutta, made certain enquiries and decided to try the case himself. Counsel thought the Magistrate was wrong when he said he treated the order of the 3^rd May as an order of transfer. Strictly speaking that could not be so. The Sealdah Magistrate had never taken cognizance of the case and could not transfer a case which was not on the record. What Mr. Birley evidently meant was that the Sealdah Magistrate was not going to enquire into the matter. If Mr. Birley took cognizance of the case he did so under section 190 clause (c) of his own motion because there was no complaint and no police record. Mr. Birley could not take cognisance of the offences under chapter VI. The defence could not plead any misfeasance on the part of Mr. Birley in taking cognizance under section 190 clause (c). Therefore there was no substance in the complaint-should it be raised-that the accused were in any way prejudiced. All that could have been done Mr. Birley did, namely, to commit. What did Mr. Birley do? On the 3^rd he made up his mind that he was going to enquire into this under chapter VI. On the 4^th a certain number of men were produced before Mr. Birley by the police and be was asked to record their confessions. Mr. Birley did so. If under the law he could not take cognisance of the offences under chapter VI yet on the morning of the 4^th he had taken cognisance of the offences which the law permitted him to take cognisance of. The only thing left for him was to take cognisance of the offences alleged under the Arms Act or unlawful assembly, both of which offences were cognisable. If Mr. Norton was right in his view that section 164 applied in its entirety, then these confessions were probably recorded and were worth what they were against each of the confessing persons, while under section 30 of the Evidence Act they were evidence against each of the persons they professed to incriminate.

     Assuming however that section 164 did not apply, Mr. Norton said he had through innumerable cases with the result that he had not been able to find a single decision from 1383 in which this argument seemed to have been either advanced or to have received

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any attention, namely; that section 164 was an enabling and not a disabling section. The confusion seemed to have arisen on the introduction of, and the interpretation {placed on the words "to be forwarded” that had permeated most o the decisions with regard to the later Act, section 122 of Act X of 1872 ― the old Act—was a very different section from 164 of the present Act. Presumably, however, Counsel could not see any difference between the opening language of the two sections, lint of course there was a greet difference in the rest of the language. The last graph of section 346 of the Act X of 1872 in some measure tallied with section 533 of the later Acts of 1885 and 1898. Counsel then read section 122 and 346 and said the examination under section 346 meant the procedure under section 122.

     Mr. Norton:·-—I am going to argue presently when I come to deal with the sections of the present Code that section 346 which says “whenever an examination is made" includes the right and power of the magistrate to examine an accused and if in the course of the examination a confession is made―assuming it is voluntary—then section 364 justifies it and it can he received under section 164. It has been held over and over in that under section 122 of the Act of 1872 if a magistrate, which is not an inquiring Magistrate, takes a confession statement under section 122 that is not to he treated as confession under section 122 or section 164, but is to be taken in that case as the foundation of the enquiry and is either taken under section 342—which I cannot understand- or under section 364 which I can. Counsel then referred to the Full Bench decision in 5 Calcutta.

     The Chief Justice.—That full Bench case was a decision simply for the purpose of getting the confession in.

     Mr. Norton :—Why did introduce that extraordinary Section 342 ?

    The Chief Justice :—They were perfectly entitled to do it at that time because of the words in the Act of 1872 for the purpose of explaining anything against him in the evidence. Did it not appear in Sec. 342 of 1 72.

     Mr. Norton :—Not in that section.

     The Chief Justice :—That is the sole reason why they adopted it at that time in 5 Calcutta.

     Mr. Norton :—But the old Act has also got the Section 193. Ville 346 of Act X of 1872.

     The Chief Justice :—Section 193 has not got the words for the purpose of explaining anything against him in the evidence.

     Mr. Norton :—No.

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     The Chief Justice :—The case in 5 Calcutta would be impossible now-a-days.

     Mr. Norton :—-Except with reference to Section 342. The Chief Justice :—I think it impossible under any circumstances.

     Mr. Norton :—Section 342 of the present code was obviously inserted for the purpose of explanation.

     The Chief Justice :—The difficulty met by 5 Calcutta is simply this. It rests on the expression of opinion, which may or may not be a part of the judgment, to the effect that the Magistrate, inasmuch as he had jurisdiction to inquire, could not act under section 122. That is the whole difficulty in that case.

     Mr. Norton :—Yes, then the learned Judges met that by these two other sections.

     The Chief Justice :—Quite true, one has to look at the dramatic incidents in that case. In 5 Calcutta it was clear a murder had been committed but the accused could not be convicted unless the confession was brought in. The Court then said "we don’t bring in the confession under Section 122, but under Section 193 " which is equivalent to the present Section 342 without the words "for the purpose of explaining."

     Mr. Norton :—Yes, I submit that would not be sound law now under s. 364, Act V of 1898.

     The Chief Justice: They could not have got it under section 342 or its equivalent now. The difficulty in that case really consisted in a statement by the Court that the Magistrate had the jurisdiction to record a confession. I am afraid we must recognise the weight of judicial authority.

     Mr. Norton : There is nothing to show that argument was ever advanced. With regard to the last paragraph of section 122 it has been held that confessions recorded under section 122 or which ought not to be recorded cannot be recorded under section 122 because the language of that section might either be receivable under section 193 of the old Code or what is much more important in my view under section 346.

     The Chief Justice : You treat one word as immaterial in Section 164. You treat the word "every" distinguished from "any" as immaterial. I am not sure whether you are not giving away a good argument in your case by doing that.

     Mr. Norton: I cannot say the word "any" can be fairly or logically restricted to a particular class. It is impossible to read that without looking into the fact that a Magistrate who has jurisdiction has also power to record a confession.

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     Counsel then referred to section 523 of the present Code where they found an enlargement of powers of a material character which the legislature intended to give under the new Act with more plenary powers of curing defects of all sorts as regards the recording of confessions under section 164 or any other section.

     The Chief Justice: I am not sure whether section 533 has much to do with our present difficulty. There is no question that all the formalities here have been observed. The only difficulty in that case is that the case had passed into a stage where section 164 was not applicable. Mr. Birley was absolutely correct in the observance of the formalities.

     Mr. Norton : Then this section steps in and says that a statement properly to be recorded under section 164: may yet be received.

     The Chief Justice It says you may give evidence to get over formal informalities.

     Mr. Norton: That is with regard to confessions purporting to be taken but which have not been duly taken.

     Mr. Norton then submitted that Mr. Birley was quite right in acting as he did and that the confessions were admissible under section 64: Counsel read the evidence of Mr. Birley on this point and submitted the prosecution had proved that these confessions were admissible.

     In support of his contention Mr. Norton cited cases reported in 5 Calcutta, 954; 15 Calcutta, 595; 36 Calcutta, 281; 21 Bombay 495, 23 Bombay, 221 and 3 Calcutta Weekly Notes, 387. Mr. Norton then said that he would next deal with individual. cases, and he would take up the case against Barindra Kumar Ghose first, leaving, so far as he could, tl1e confession to the end. Barin was one of the co-sharers of the Mooraripukur garden. So far back as the 20^th January, 1908, Inspector Biswas was informed of the existence of the Secret Society.

     Mr. Norton then mentioned the names of the various places where Barindra was seen by the shadowing witnesses and others. Continuing Counsel said that Barin was arrested on the 2^nd May, and he pointed out various places at the garden. The evidence with regard to the pointing out of those things was not confined alone to police testimony, which was perfectly honest, but Major Black was also present there. On the 3^rd Barin wrote out a statement of some sort to the police and it was written voluntarily and freely. On the 4^th May Barin gave Kane’s name to the police.

     Before going into the documents Counsel wanted to give their Lordships the list of places which connected Barin and they were : Naraingarh, Deoghur, and Hossindanga. He was also

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present at 176-3, Bowbazar Street, when Bhupendra Nath Dutt was arrested. Barin was connected with certain money-orders which threw a Hood of light in the case and the next thing was that he was connected with Muzaifarpur. Then there were plans of Maldah, which contained the handwriting of Barindra and so far as he was concerned his handwriting was proved. Barin was also connected with Profulla Chandra Chaki and Khudiram Bose, who committed the Muzuffarpur outrage. In his confession Barin stated that he selected Profulla to go to Muzafferpur while Khudiram was selected by Hem Chandra Das.

     Counsel then Went on mentioning the names of the exhibits which were found in the garden at the search of the 2^nd May and had not concluded when the Court rose for the day.

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