The Alipore Bomb Trial

FORTY-FIRST DAY'S PROCEEDINGS

     Mr. Norton continuing his address on behalf of the Crown in the case against Birendra Nath Sen said that among the documents found at the search of this appellant’s house at Sylhet was a letter addressed to Birendra by one Probodh .Of whom the Crown knew nothing. This letter was clearly an answer to a post card written by Birendra to Probodh, and it breathed a spirit of insubordination to the constituted authority of the land. Counsel submitted that the letter went to show that the views entertained were really those of Birendra and it showed further that he was in entire sympathy with the views expressed by the writer. It clearly showed antagonism to the constituted Government as represented by Sir Bamfylde Fuller. There was an insinuation in the letter that the Government were responsible for the recurring famines which were devastating large tracts of the country.

     The Chief Justice. Would letters about extending help to the starving people be incriminating ?

     Mr. Norton : Not necessarily. I ask your Lordships to draw that inference from the tenor of the rest of the correspondence., I can deduce that from the correspondence as a whole,

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     The Chief Justice: We have to follow our progress and it is very difficult to follow the argument at the time. I was anxious to know whether it was from this letter alone or this letter read with others that you called the letter incriminating.

     Mr. Norton : I can answer that question straight way.

     The Chief Justice : That is the only question.

     Mr. Norton : From this letter alone I don't accept the suggestion of insulting the Lieutenant-Governor. When I came to deal with the other letters this implication would get additional strength.

     Counsel next referred to several other letters found in the appellant’s house at Sylhet and said that there was the clearest possible evidence on record to show what Birendra’s proclivities were at the time and they had given the Crown an insight into the impulses which were moving Birendra along the path of the conspiracy. Coupling this with the two note books and formulas in the house and also the fact that there was found in his possession a number of letters which contained views coincident in their trend with his own, it may be said there was strong "prima facie" evidence of Birendra’s complicity with this conspiracy. No attempt at explanation had been made by Birendra. Counsel submitted in the absence of an explanation from the only person who could have made it, it was perfectly fair on the part of the Crown to draw an adverse inference against that person.

     Mr. Norton then referred to the opinions of the Assessors. Every document was shown to them and they were asked to give their opinion throughout the case.

     Mr. Norton : With regard to the Assessors my general observation is this. I will admit that Assessors are a constitutional part of a sessions trial and that under the provisions of the Criminal Procedure Code their opinion must be taken with consideration. But I submit that the value of an Assessor’s opinion depends very much upon his finding and partly upon the reasons he gives for that finding. In this case there has been a wholesale acquittal and even when the conspiracy is found it is dubbed by at least one of them as being, to use his own words, a childish conspiracy. Where an Assessor comes to the conclusion that a conspiracy such as this is a childish conspiracy that in itself so unhinges his judgment that you must approach his conclusion with regard to the rest of the case with caution. How any Assessor can say that this was a childish conspiracy when there have been ten murders and deaths, it puzzles one to understand.

     Counsel then read the opinions of the Assessors and said that the Sessions Judge had not acquitted a single individual on the ground that the evidence was untrue. Individuals had

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been acquitted on the ground of insufficiency of evidence or because there was a doubt but in no case did the Sessions Judge say that he found any particular individual not guilty because the evidence was false.

     Counsel then said that things said or done by one conspirator in reference to a common design were evidence against others concerned in the conspiracy and stated that in support of his assertion he relied on the provisions of Section 10 of the Evidence Act.

     Turning to the "Yugantar" Mr. Norton said that it was actually used as an instrument of the conspiracy. Barindro Kumar Ghose had admitted that the "Yugantar" had been brought into existence for the purpose of expressing their views and advertising the conspiracy and nothing else.

MR. DAS’S REPLY.

       Mr. Das, on the Court re-assembling after lunch, commenced to address the Court by way of reply to the observations made by Mr. Norton on behalf of the Crown. In the course of his lengthy preface Mr. Das said :—My learned friend’s address consists of two parts. He began with what you call the general history leading to, as far as I can understand, the conspiracy charge, and after that he dealt with the cases of each accused separately, My Lords, there is an observation which I desire to make at the outset. I do quite understand the value which my learned friend attached to the general part of his argument. I notice in the notes that in answer to an observation of your Lordship the Chief Justice my friend said he was going to connect it later on. He has not in any way connected the general part of the history afterwards with the history of Bengal for the last 10 years. He has not made a single submission to you that the history of the Swadeshi movement in Bengal or the Partition Agitation in Bengal has led up to this conspiracy and at the outset of my address I desire to make this submission that what we have got to deal with in this case is direct evidence as against each person and to consider how far the evidence brings the offence home to the particular accused; and I go further My Lords and suggest that to say that because the different accused in different times took part in what is called the Swadeshi or Swaraj movement it is probable that they afterwards became members of the conspiracy and became guilty of the offence under section 121A of the Indian Penal Code is utter and gross libel on the national movement of the time. I beg to submit that not one single circumstance to which he has referred raises that presumption. If it is necessary, I desire to place before your Lordships, the history and

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trend of the movement which was behind this movement here. Again, my Lords, you will End that m learned friend has referred to various abuses of the English people and officials in the correspondence and in the different newspapers. I trust that your Lordships will also view the circumstances which led up to them. Then, again, I say I do not justify for one moment the abuse; but the question is "Are your Lordships going to take the observations made in moment of irritation and anger as evidence of conspiracy under section 12l.A." If necessary I shall with your permission go back into the history of the different movements and the the political activity of the people during the last few years. The first and foremost, your Lordships, will find is the Calcutta Municipal Bill of 1899. In its operation no doubt it was confined to Calcutta, but it evoked a general protest throughout the country because it was looked u n as a reactionary measure. It was thought and felt by the people of this country that that was the first step towards taking away the little measure of Self-Government which Lord Ripon had bestowed upon them.

     Mr. Norton: I never made any reference to the Municipal Act.

     Mr. Das: In the cross-examination of Mr. A. C. Bannerjee who was called as a witness for the prosecution this question was introduced. I submitted to the learned Sessions Judge that this was not relevant to this case. Your Lordship will End the reference at page 421 of the evidence in this case.

     Mr. Norton: I End that there is a reference to that in the cross examination of Mr. A. C. Bannerjee.

     Mr. Das: I pass from this point, my Lords, to the Imperial assemblage at Delhi which was held at a time when there was a widespread famine in the country. Passing from that we come to the Indian Universities Act of 1904 which again evoked a general protest all over the country; and along with that we cannot overlook the speech which the then Chancellor of the Calcutta University, Lord Curzon made and which was an indictment against the whole nation. I am not dealing with the truth or otherwise of the charge or with the facts. I have nothing to do with that. I am merely going to show that some of the letters which were referred to by my learned friend as containing abuses, if your Lordship would only look at the other side of the picture you can appreciate and attribute them to their proper causes. Then we come to the Official Secrets Act which the Anglo- Indian Press even characterized as the Russianization of the administration of the country. Three or four years after that there came the Partition of Bengal which was carried into effect on the 16^th October, 1905. It was before the public for nearly five years before that. I need hardly refer to the circumstances

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under which it was effected in the teeth of the opposition of the people of this province and in utter disregard of hundreds of meetings held all over the country and protests and petitions against the measure. It is hardly necessary for me to repeat at these protests were unheeded . My Lords it was at this time that the new national movement took its birth. To understand fully the trend of thought which characterized this movement I desire to put briefly as far as I can as a fact and as a theory the doctrine of Vedanta upon which this was based. After the Partition of Bengal there were circulars known as the Carlyle and Risley and Bande Mataram circulars to which reference had been made in the evidence and in the newspapers. The first two were directed against students taking part in politics and the third made it penal to shout Bande Mataram in any meeting or in the streets. Then we come to the Barisal and Khulna District Conferences where the police officers waited outside the meetings with warrants of arrest duly signed but not filled in. It led to criminal cases which came up to the High Court on appeal. Then there was the Barisal conference which was broken up by an order under section 144, Cr. P. C. and Babu Surendranath Banerjee was arrested for infringing the Bande Mataram circular and was afterwards convicted of contempt of Court, which again came up to the High Court and the High Court quashed it. My Lords matters did not rest there. After that there was a counter agitation set on foot in regard to the question of partition in which a pamphlet which is known as the red pamphlet played an important part. It has been held in cases tried by the European and Mahomedan Magistrates, not Hindus, that this red pamphlet incited the Mahomedans to do acts of violence as against the Hindus, for the purpose of making up a case against the partition agitation.

     Carnduff, J. Is this referred to in the evidence ?

     Mr. Das: Yes ; as also in the various newspapers put in.

Continuing Counsel said that whereas we find that the gentleman whom the learned Judge in the Court below described as the notorious Leakut Hossain, was punished for an offence under section 124A of the Indian Penal Code for writing a pamphlet based on a text from Koran that it was not unlawful to join in an agitation against the British Government, we find that the author of the red pamphlet was let go with a simple warning. It is a matter of decision of Courts of law that it was the red pamphlet which was at the root of all evils at Jamalpur, Comilla and other places. This began early in 1907 and went on till October of the same year or even a little after that, and although the actual occurrence was at Jamalpur and at Comilla the apprehension spread far and wide even at Kalighat in Calcutta. it was at this time that the people organized a measure of self-defence.

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     Carnduff, J: Against what ?

     Mr. Das: Against Mahomedan rowdyism. The belief was that it was supported by certain officials of Government. It is unnecessary for us to discuss whether it is true or not. That was the impression. In consequence of this the cult of physical culture began to spread. The difficulties in the way of the new national movement since its birth became more accentuated about the time of the Mahomedan disturbances and had to be carried on under a great deal of risk for even the possession of sword—stick was made penal under the Arms Act as it has been held by one of your Lordship’s decision here.

      Mr. Carnduff, J : What is the relevancy ?

     Mr. Das: My statements are absolutely relevant if your Lordships are disposed to attach the slightest importance to the general observations of the character advanced by my learned friend regarding the Swadeshi movement. My friend says that there were grievances whether they were real or imaginary he did not care. He says that that movement was the origin of the conspiracy, wherever the men were concerned with a Swadeshi enterprise he thinks that that enterprise is a prelude to of conspiracy. It is therefore to that part of his address I wish to draw your Lordship’s attention.

     Mr. Norton: I have repeatedly said that so far as Swadeshi movement as a movement is concerned that it was a perfectly honest one. I find indications here of persons who were perverting the Swadeshi in attempting to force physically its doctrine on merchants. Then I say it is wrong. I am far from suggesting that it was illegal or dishonest.

     Mr. Das: It is unnecessary for me to say whether the Swadeshi movement is honest or dishonest. The movement is no indication of the guilt which your Lordships have to ascertain in this case. I can understand the argument if it is this—that it is only where your Lordships End that the Swadeshi movements have been perverted as a means of furthering the ends of the conspiracy it is relevant. That is perfectly clear. Your Lordships have to be convinced that in that particular case it was so perverted. But my learned friend’s method of dealing with the case has been hitherto this. For instance, in Sudhir’s case, he gets hold of a letter that he has picketted and at once he rushes to the conclusion that he joined the conspiracy. It is that sort of arguments against which I protest.

     Carnduff, J : Is picketing necessary?

     Mr. Das: It is part of the movement. If your Lordships treat this as evidence of conspiracy you might as well say that the whole of the educated Bengal are mostly conspirators.

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     Carnduff, J : What picketing?

     Mr. Das: To go in bands to different shop keepers and ask them not to sell particular kinds of goods and offer prices for belati goods they have and destroy them on payment. It is a sort of league using general influence with persons who would not subscribe to the Swadeshi principles. This is the kind of evidence in this Ease. Your Lordships have been asked to deduce guilt or innocence of `persons from these facts. The picketing movement is in vogue in the whole of Bengal in connection with the Swadeshi movement. Is it suggested that those who took part in picketing in Swadeshi movement are more or less liable to become conspirators under section 121 A.

     The Chief Justice; I may say this. We cannot suppose to have any knowledge of what picketing is except so far as is disclosed by the evidence. The prosecution has not brought any evidence to show what picketing is—the only evidence of what it is is that of Mr. A. C. Banerjee.

     Mr. Das continuing said that the next point in the general history given by his friend to which he would refer was that the concatenation of events which he mentioned proved nothing because it did not supply the connecting link between the different events. Mr. Norton gave them a string of dates as to when "Yugantar" came into existence, when "Navasakti" and "Sandhya," were started and so forth., Mr. Das asked what it proved ? Was it the evidence of movements passing through Bengal or was it indicative of the fact that all these different events and the dates had been the result of the conspiracy.

     The Chief Justice: I suppose Mr. Norton referred to "Yugantar" as indicative of the doctrines preached by Barin and Abinash leading up to this smaller movement which has its centre in the garden.

    Counsel continuing said that what he wants to convey was that the mere mention of date did not supply any information or helped their Lordships in the slightest degree to find out whether these particular persons were guilty of the offence with which they were charged.

     Counsel next said that in dealing with the case he would adopt the following order. He would put Abinash, Sudhir and Sailendra in one group. Nirapado, Hem Das and Kane in another group. Krishnajiban, Sishir and Paresh constituting the next group. He would deal with the Sen Brothers and conclude with the confessing prisoners.

     Counsel was dealing with the case of Abinash when the Court rose,

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