The Alipore Bomb Trial

Eighth Day's Proceedings

 Their Lordships having taken their seats Mr. Das said :—My lords, before I proceed to deal with the case I beg to bring to your Lordships’ notice the fact that one of the appellants before

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your Lordships died last night and that is Asoke Chandra Nandi. He was arrested at 134 Harrison Road and was tried in the High Court under the Arms Act for the fact that bombs were found at 134. He was subsequently acquitted of that charge and inspite of that acquittal proceedings against him under section 121 were continued before Mr. Birley. Further, inspite of the clear finding of Mr. Birley that the evidence did not establish any connection between Asoke Chandra Nandi and the garden bail was refused throughout and the learned Sessions Judge admitted him to bail after argument and eventually he convicted him solely on the statement of Narendra Nath Mullick. Thereafter we made repeated applications for bail on the ground that he was suffering from pthisis with which he was attacked while in jail. All those applications were refused. We eventually made an application to His Honour the Lieutenant-Governor and His Honour admitted him to bail. So far as this case is concerned his case goes out. If he had been alive, I am confident, I would have been able to prove to your Lordships that not only he was not guilty but he was innocent of all the charges.

     Mr. Das then continuing his argument said that he dealt with the evidence of search witnesses on Monday and now he desired to draw their Lordships’ attention to some of the sections of the Criminal Procedure Code with regard to the searches. Counsel took it that having regard to the search warrants which were produced before their Lordships, being issued under section 95 of the Criminal Procedure Code it implied that there must have been a complaint before the Chief Presidency Magistrate or any District Magistrate upon which those search warrants could be issued. Counsel's submission was that either the statement of Purna Chunder Biswas was a complaint or it was not. If it was a complaint as defined in section 4 of the Criminal Procedure Code there was no doubt that the search warrants were legal but if it was a complaint then all the arrests were illegal because the police could not lodge a complaint in a court of law of cognizable cases and get reserved to themselves the right of arresting under section 54. It was for the court to determine on the result of the search or other enquiries, which the court might think fit, the issue of the process or not. If on the other hand the statement of Purna Chandra. Biswas was not a complaint then the search warrants were illegal. Counsel then read section 94 to 103 of the Criminal Procedure Code and in support of his contention cited 22 Bombay 949.

     In this connection Mr. Das drew their Lordships` attention to the fact that the defence had not yet got the petition-—the statement of Purna Chundra Biswas taken on oath by Mr. Thornhill. The Chief Presidency Magistrate was directed by the High Court to supply that.

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     The Chief Justice : Have you seen this — the reply of the Chief Presidency Magistrate ?

     Mr. Das: Yes. From that it is not clear whether written petition was filed or not. The Chief Presidency Magistrate does not answer that question. Your Lordships asked for a written petition filed either by the complainant or by the Commissioner of Police, Purna Chandra having sworn that there was a written petition filed by the Commissioner of Police. How is it that we come to find that some of the documents are with the Commissioner of Police. They ought to be in the file of the case.

     The Chief Justice : Do you ask us to do anything further ?

     Mr. Das : We find from the evidence that there was a written petition put in. I want a definite settlement as to whether such a written statement was put in or not. Your Lordships sent for it and I submit that the answer ought to have covered that.

     Mr. Das next went on to read the statement on oath of Purna Chandra Biswas of which Mr. Norton had given the defence a copy. This statement was made on the 1^st May before Mr. Thornhill. The question was whether this was a complaint or not ? The allegation in that statement was that Aurobindo had organised a gang and that bombs and instruments or other articles in connection with the bombs might be found at different places. If their Lordships took it that the information was lodged before the Chief Presidency Magistrate with a view that he should take action upon that then it was a complaint under the Criminal Procedure Code. Upon the presentation of this complaint, if the Presidency Magistrate pleased he could issue a search warrant. But the question was whether he could issue search warrant for the correspondence or other things, which were not instrument and articles connected with the manufacture of bombs and deadly weapons so mentioned in the complaint? If it was a complaint, he would be entitled to issue search warrants. If it was a complaint at the same time he took the cognizance of the case upon that complaint, and if that was so, the police officers would not be entitled to arrest under section 54; and before that complaint was put in, Counsel took it under Section 196, search warrant was issued and the search began to be held. Thus their Lordships would consider whether there was any attempt to comply with the provisions of section 103 of the Criminal Procedure Code. Counsel submitted that every principle inunciated there was violated. They did not have neighbours, except in one or two cases, as search witnesses. They did not have respectable search witnesses and in one case they did not even however have two search witnesses which was the minimum number in that section. Counsel also submitted that they did not even got the search list signed by the witnesses at the place where the search was held. There was one further point and that was not one of these search witnesses

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(of course with the exception of one or two unimportant searches) was called in the case.

     Chief Justice: Even if it be that the searches were irregular, what then ?

     Mr. Das: My submission is this. If your Lordships find that there was no attempt at all to comply with the statute then the whole thing is illegal. If on the other hand your lordships find that they tried to conform to the statute but some mistakes were done, then they would be irregularities.

     The Chief Justice: If they were illegalities, what would be the effect ?

     Mr. Das: I submit they ought not to be allowed to give evidence.

     The Chief Justice: Can you contend that though certain articles were in fact found, on account of the irregularity of the proceedings, the proceedings are nullified ? I merely put this by way of suggestion.

     Mr. Das: The police got these documents by reason of exceptional powers given to them under which they can go into any body’s house and find out anything they choose. Had it not been for this they would not have been able to enter the house. Because these proceedings are out of the way the legislature says you can do it but we insist upon this being done or that being done. If your Lordships find that there was a deliberate disobedience of the injunction will your Lordships allow it

     The Chief Justice: The evidence procured per ne fas must be regarded with suspicion, but if the evidence is there can you say that it is inadmissible? Your point is that it is inadmissible.

     Mr. Das: Yes. The legislature lays down the conditions upon which the evidence should be given and if it is disregarded then it is the intention of the legislature that such evidence should not be given. My submission is that under the circumstances they ought to be scrutinised with great care far more than in a case where those conditions had not been specified.

     Mr. Das then went on to deal with the evidence of searches and said that with regard to search list his submission was that that list was not prepared in the garden. As regards the detailed list his submission would be that it was after creation.

     Mr. Das then read that portion of the judgment of the Sessions Judge where he deals with the exhibits and said that everything which went against the police had been explained away, that some of the important points raised by the defence had not been dealt with at all and that counsel for the defence had been attacked with dishonesty. In considering the whole matter their Lordships would find that the police began by not adhering to the provisions

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of the law. Then there were many points of suspicious. Lastly they closed the evidence without calling a single search witness. Referring to the writing of the exhibits on plain papers, Counsel submitted that the case for the prosecution was that they ran short of papers. But Counsel submitted that that was not so. If the printed forms were used it would have shown their position much more clearly. They could not afford to fill in the time and therefore to obviate the difficulty they used plain papers.

     Mr. Das then went on to deal with the three subsequent searches made at the garden after which he dealt with the search made at 15, Gopi Mohan Dutt`s lane on the 2^nd May. There was only one search witness in connection with this search and he was n resident of 15, Dacre’s Lane. This witness was not called. While on this subject counsel would draw their Lordships’ attention to item No. l0. It was a book entitled " Progress of the literature in the nineteenth century." The prosecution said that inside that book was a slip of paper on which the name of Kani was written. The hook itself was signed and initialled but the slip of paper was not. The attention of the committing Magistrate was not drawn to the slip of paper when the book was tendered. It was at the Sessions Court when the prosecution drew the attention of the defence to it.

     Counsel there read the evidence of Mr. Madden and Mr. Finney on that point. He said that there was a second search of 15, Gopee Mohan Dutt’s Lane. Four things were found at the search. Before this search they had searched Seal's lodge on the 28^th May. From the 2^nd May the day on which Kanai Lall Dutt and Nirapada Roy were arrested and up to the 7^th June this house remained vacant. It was not locked up and after the search, one of the search witnesses took a lease of the house. The defence suggested that he was a police spy.

     The Court then rose for the day .

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