The Alipore Bomb Trial

FIFTH DAY’S PROCEEDINGS

Mr. Das, continuing his address, said that when the court rose on Thursday he was dealing with the confession of Barindra Kumar Ghose. There was one point of view from which he desired their Lordships should consider this question of the admissibility of the confession. Apart altogether from the question as to whether it could he admissible under any other section of the Evidence Act his submission was that their Lordships would remember that at the time when these confessions were recorded the Magistrate was in seisin of the case and that he began the enquiry as it were by taking these statements from the accused persons. He submitted ·— and it was a question of grave importance — that if the legislature intended to bring in this kind of confession under any other section of the Evidence Act then that proposed to give the go-by to the other salutary provisions which the legislature had enacted, namely, that one could not begin an enquiry by taking the statements of accused persons. Here was a case in which the Magistrate was——by whatever means did not matter — in possession of the facts so far as the case for the prosecution was concerned, and he opened the enquiry by taking statements from the accused persons and — as Counsel would show — a good portion of that was by means of cross-examinations. That was precisely what the Legislature said could not he done. Section 193 of the old Act of 1872 which enabled a Magistrate to take the statements of accused persons was very wide. Because that section was abused, very

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frequently it was altered in the Code of 1882 and the altered section was introduced into the Code of 1898. In case after case the High Court not only here but in different provinces condemned that procedure, and in view of that the Legislature altered the section to the present section 342 of the Code.

     Chief Justice :—You cannot go the length of saying that after an enquiry has commenced it is impossible for an accused to confess

     Mr. Das :—That is my submission.

     The effect of Barindra’s confession comes to this that up to 1904 he was engaged as a political missionary as he says. At the time of the Swadeshi movement he thought of starting a regular institution to teach boys.

     Carnduff, J : That would be in 1905.

     Mr. Das: Yes. Then he started the "Yugantar" newspaper in 1906. He does not give the date in his confession. He carried on the " Yugantar " for a year and a half. That brings us to about the middle of 1907. That is the first date of the charge, from May, 1907, to May 1908. Then he begins to collect boys. In connection with that he goes on to say he was always thinking of a far-off revolution and that he was collecting arms in small quantities. But he does not refer to explosives, he says he had collected 11 revolvers and 4 rifles and one gun. Then later on he refers to explosives and the use of explosives and to certain overt acts which are not in furtherance of the cause of independence. Another point in connection with that is that he induced others to make confessions who would rather not have made them and taken the consequences. Therefore if this confession stands by itself, apart from any other evidence, it can hardly be argued that the overt acts were in pursuance of the cause of independence. He says so in clear terms at the end of the confession.

     Caruduff, J :—He says " we never believe that political murders will bring independence?

     Mr. Das :—Yes. If I succeed in satisfying your Lordships that the conspiracy which the prosecution charged is a conspiracy to procure the independence of the country by waging war then the overt acts go out of the conspiracy in the sense that they are not indicative of the object of the conspiracy charged.

     Chief Justice :—You do not suggest they are not relevant evidence.

     Mr. Das :—On the charge I submit they are no longer relevant.

     Chief Justice.—Surely they would be relevant in this way as showing the purpose to which these particular persons knew these explosives would be applied.

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     Mr. Das :— Relevant in that sense only to negative the particular object which I say is necessary as regards the charge of conspiracy made by the prosecution.

     Chief Justice :—A person in possession of explosives may say " I have them in the ordinary course of trade." The use to which explosives have been put, assuming their possession to be established, would certainly be relevant as showing they were not collected for trade but for a purpose which was not legitimate.

     Mr. Das :—In that way it may be; I submit, they are not relevant for the purpose of proving directly the particular charge of conspiracy.

     Chief Justice.——Are you not now considering what is relevant and what is conclusive? Could the Sessions Judge have said " rule out that evidence." Mr. Norton would at once have got up and said if you take it I need not prove that they were not collected for a legitimate purpose, well and good, otherwise I am bound to call this evidence as showing that these explosives were not actually used for a legitimate purpose."

     Mr. Das :—The question as to whether the use was legitimate or not would depend upon the particular charge the court was investigating.

     Chief Justice :—If the prosecution were entitled to assume that the collection of these explosives was not for a legitimate purpose then it would be necessary to admit that evidence.

     Mr. Das :—The whole question I am arguing is this, that so far as these overt acts are concerned are they indicative of the conspiracy which is charged ?

     Chief Justice :—The difficulty is in using the word "indicative" which depends upon the sense in which it is used. Everything which goes to establish the case for the prosecution is in one sense indicative.

     Mr. Das.—According to Barindra's confession these were not the acts which were done by them in pursuance of that object.

     Chief Justice :—-You cannot read the expression "far-off revolution" without reading the words which immediately follow "and wished to be ready.” .

     Mr. Das :—There is a marked distinction between the expression "far-off revolution" which he was thinking of or according to me dreaming of, and the overt acts which were perpetrated. That is all I have to submit generally with regard to Barindra's confession.

     Counsel then went on to say he would like to hear the argument for the prosecution fully on the point as to the admissibility of the confessions.

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     Mr. Norton remarked he would first like to hear what Mr. Das had to say on that point. He would not support its admissibility under section 342. His case was that this was not an enquiry. The enquiry had not begun.

     Chief Justice :—I take it your argument, broadly speaking, will he that it comes under section 164 ?

     Mr. Norton :—That is my general principle. I rely on section 165 of the Evidence Act.

     Mr. Das :—I do not see how that section applies for the purpose of reception of a confession as evidence in this case. It is altogether a far-fetched interpretation of this section. Besides the word "Judge" has been defined in section 19 of the Penal Code. According to clause (d) of that section Mr. Birley was not a Judge and so he could not record a confession under section 165 of the Evidence Act. Even if Mr. Birley did record the confession no conviction could be based on it.

     The Chief Justice :—That is in another Act. Apparently in a case reported in 8 Allahabad it was decided that a Magistrate comes within this section.

     Mr. Das.—It may include a Magistrate, but apart from the question whether Mr. Birley was a Judge or not no conviction could be based under section 165.

     The Chief Justice :—Section 3 of Evidence Act defines "Court." Does it not support your argument ?

     Mr. Das :—It draws a distinction between a "Judge" and a "Magistrate." According to that it could be argued that "a Judge" is not a "Magistrate". I am much obliged to your Lordship's . So far as the confessions of the accused persons are concerned there were provisions for it in the Criminal Procedure Code and the provisions of the Criminal Procedure Code are generally controlling the sections of the Evidence Act.

     Mr. Das then went on to deal with the confession of Ullaskar Dutt and said whatever might be said of the other confessions there was no doubt that the whole of this confession, from the beginning to the end was cross-examination. If the Evidence Act allowed this confession to be admitted there would be no difference between the administration of justice, as sanctioned by the courts in Eng- land, and the administration of justice in France, because the confession begins with cross-examination. The confession was not what Ullaskar wanted to say but what Mr. Birley wanted to know. Mr. Birley had full possession of facts and he wanted to get out facts by cross-examination. If those kind of things were allowed it would be a most dangerous weapon in the hands of the Magistrates. Having regard to the manner in which the whole confession was elicited Counsel submitted that it ought not have been allowed.

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     Counsel then read the confessions of Indu Bhnsan. Roy, Upendra Natlh Banerji, Sudhir Kumar Sircar, and Risikesh Kanjilal and said that objectionable questions were put and answers were elicited by improper means and therefore those confessions had no value.

     Mr. Das went on reading the confessions. He read the confession of accused Krishnajiban Sanyal.

     Mr. Das next read the confession made by Bibhuti Bhusan Sircar.

     Continuing Mr. Das submitted that taken as a whole the confessions did not substantiate the charge of conspiracy. With regard to the overt acts they stood dissociated from the conspiracy. All that the prosecution got from these confessions was that there was an institution at Manicktola where religious instructions were given and also lessons in politics were given and that bombs and explosives were prepared and used in a way which they believed would not further the cause of independence.

     Mr. Das next proceeded to deal with the evidence afforded by the watch witnesses or rather the shadowing witnesses as they were referred to. There were ten witnesses, namely, Inspector Purno Chunder Biswas, Inspector Sashi Bhusan Dey, Sub-Inspector Satish Cander Banerjee, Sub-Inspector Chandi Churn Mukerjee, Sub-Inspector Suresh Chunder Ghose, Inspector Noren Mullick, Siba Kali Das, a spy, Head Constable Balai Ganguli, Sarat Das, a spy, head constable Sarat Palit. They did not produce the documents which they had submitted from day to day. It was important to examine them one after another and not in a manner which gave them an opportunity of studying what the previous witnesses had said. His third objection was they professed to give dates and places and said they saw particular accused at particular places from memory which was certainly objectionable. The whole of the evidence if tested according to what Purno Biswas had said would appear not to be true.

     Mr. Das then began reading the evidence of shadowing witnesses. He first read the long evidence given by Inspector Purno Chunder Biswas and commented on the marvellous memory of the witness who gave those details without refreshing his memory from the diaries or any other documents which were not produced in court.

     The court at this stage rose for the day.

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