The Alipore Bomb Trial

FORTY-SIXTH DAY’S PROCEEDINGS

     Mr. Das continuing his reply on behalf of the defence said that he would first deal with the law points. From the petition it was evident that the case for the prosecution was limited to a cons- piracy to wage war. In this connection he would draw their Lordships' attention to the charges; the first three charges were under Section 121, and the fourth charge was under section 121 (A). Therefore the charge was also limited to the specific charge of waging war and that was the object of the conspiracy. The subsequent paragraphs of the charge all go out because they were superfluous having regard to the petition.

     The Chief Justice : The charges as originally framed created no difficulty.

     Mr. Das : No my Lord.

     The Chief Justice : The great point that you make now are the words " as set forth." These words create the difficulty. But those words were not in the original charge.

     Mr. Das : Yes. But the charge is gone now.

     Mr. Norton : The petition has no reference to the charge.

     Mr. Das: The fifth and sixth charges in my learned friend’s petition were not seriously relied upon.

     Continuing Mr. Das said that the charges under Sections 121, 121(A) and 122 were put in the alternate form and if they said that whatever was done by the appellants amounted to the waging of war then there was an end of the conspiracy. If there was an end of the conspiracy Section 10 had no application at all.

     Mr. Das then went on to deal with the question of the misjoinder of the charges.

     The Chief Justice: You need not trouble yourself about this point, nor about Section 121. If we think it necessary we will call upon you to answer upon those points.

     Dealing with the question of privilege as to the use of Police Diaries Mr. Das said that he did not understand under what section the Crown claimed that privilege. The section quoted was 162 of the Evidence Act, but section 162 had no application to matters like that. It was also said that the Crown relied on section 173 of the Criminal Procedure Code. That section also could have no application.

     Mr. Das then referred to the statement taken before Mr. Beachcroft and said that it was admitted that the provisions of section 364: were not complied, with. Reference, however, was made to section 533 and then to section 537. As regards section 533 it

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had no application whatever, because it referred to a statement taken by a Magistrate. With regard to section 537 he failed to see what application it could have because he had not gone the length of asking their Lordships to hold that the whole trial was vitiated by reason of these statements.

     Two other questions remained, namely, that of the admissibility of the confessions and the operation of section 10 of the Evidence Act. As regards the operation of section 10 his learned friend had referred to several English cases. Mr. Das briefly dealt with these cases and submitted that the principle laid down in these cases was not applicable to the present case. With regard to the admissibility of the confessions he desired in the first place to point out that section 19 of the present Code did not contain anything which was not also contained in the Act of 1872.

     The Chief Justice: It does not contain the binding clause.

     Mr. Das : That is so, but it contains all the other matters.

     Counsel referred to and read sections 140, 141 and 142 of the Code of 1872 and raised the question whether the circumstances were such that their Lordships would on petition set aside the proceedings as being without jurisdiction. After reading the evidence bearing on this point, Counsel submitted that upon the facts disclosed in the evidence it was perfectly clear that the Magistrate took cognizance on the 3^rd May.

     Having regard to the fact that the Magistrate himself admitted that he took cognizance, his want of jurisdiction was clearly made out. In these proceedings Mr. Birley was regarded not as a Magistrate who had no jurisdiction but as a Magistrate who recorded the confessions. Further, Mr. Birley was not the nearest Magistrate to whom these men could have been taken.

     Carnduff, J. Who was the nearest Magistrate ?

     Mr. Das: The Magistrate of Sealdah or the Chief Presidency Magistrate of Calcutta.

     Continuing Counsel said that the only question that arose on these facts was whether the report of Inspector Gupta on which these fourteen men were sent up could be regarded as a police report under clause (b) of section 190. There was nothing in the language of that section itself which said that such a report could not be regarded as a police report. The word " police report " was nowhere defined. In support of his argument Counsel cited two cases reported in 29 Calcutta, page 417 and in 8 Calcutta Weekly Notes, page 854.

     Mr. Das then went on to deal with the confessing prisoners. He first dealt with the case of Hrishi Kesh Kanjilal. On the evidence no case had been made out against Hrishi Kesh. The only witness

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to which the prosecution had referred to show his connection with the garden and 4·, Harrison Road, was that of Satish, whose statement was general, and who mentioned no incidents. Moreover, Satish added the name in the course of his cross-examination. Turning to the documentary evidence they had Ram Chandra Prabhu’s letter, which was found in the garden in a shirt with the letter " R." It was not in evidence that the shirt was claimed by Hrishi Kesh and the word " R ” did not appear in the search list. Moreover, Hrishikesh’s name did not begin with the word "R.”

     The Chief Justice : I understand it is " Hr."

     Mr. Norton: If you spell it in English you must begin with “R”

     Mr. Das : No. In some places on the evidence the Judge himself spells it with " Hr ". A European Magistrate may spell it with ‘Ris’ but a Bengali will hardly spell it with " R."

     Counsel then referred to several other exhibits and said that there was nothing in the documentary evidence to show that Hrishi Kesh was a member of the conspiracy.

     Mr. Das then said that he did not desire to refer to the merits of the cases of other confessing prisoners, because their Lordships had got all the facts.

     Counsel next went on to deal with the confessions of all the confessing prisoners. He did not desire to say that these confessions were untrue, He desire to urge two points with regard to the confessions, viz, (1) about a far-off revolution and (2) the question of overt acts.

     About the revolution to which Barin referred, Counsel’s sub- mission would be this. With regard to other criminal offences there was such a thing as locus penitentiæ, and their Lordships would have to consider in this case whether that point had passed, that is to say, whether they had actually committed the crime or that they were thinking of committing the crime. The intention to have a revolution far-off showed that it was not an offence under section 121 (A) and as such there was locus penitentiæ. From the evidence it was clear that these prisoners were yet at the first stage, preaching ideals, after which would come the collection of arms and then the rebellion. Could it not be argued in this way that after going through the first stage they might have thought of not proceeding any further ? As long as something more specific was not done, Counsel submitted, the offence under section 121(A) was not complete. The prisoners could yet draw back and therefore the offence did not come under section 121.

     With regard to the overt acts, Mr. Das submitted, that these were not overt acts directly connected with the

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conspiracy. Assuming the charge to be one of conspiracy to wage war the overt acts did not show the character of the conspiracy. They were accidental offshoots. Barin said that he never thought that political murder would ever bring independence. Barin, according to the prosecution, was a truthful person. It was not his object to make any untrue statement and he never intended to palliate what he had done and his intention was perfectly clear on the point. Yet the whole scheme was represented to bring independence.

     Continuing Mr. Das said: On the question of sentence, assuming that your Lordships are against me on other questions, I desire to point out this, that it is not true that it was Barin, who created the spirit of nationalism in the country which ultimately led to this conspiracy. My submission before your Lordships will be that it is Barin and these people, who were caught up in the main stream of nationalism, and not actually creating it, and in dealing with this case I should ask your Lordships to keep the facts of nationalism generally and Swadeshi and other enterprises apart altogether from the question of their guilt. This is necessary in order to understand how the very recklessness of their youth led them to this course which may come under section 121 (A). In this connection I may place before your Lordships an article which appeared in the Bande Mataram, so that your Lordships may view the actions of these different accused persons in their proper light before considering the question of sentence. This article was written on the 16^th October 1906 on "the nation day" and that will explain the conduct of many of the accused persons with reference to the act of 1^st October. It shows that the spirit, which prompted the observance of the nation day and the different steps which were taken in connection with that, are perfectly independent of any other circumstances. I desire to place this article and it will show the spirit in which it was accepted by the people.

     Mr. Das then read the article.

     Mr. Norton : Is this evidence ? This is not a statement made by a conspirator ?

     The Chief Justice: This is on the question of sentence, Mr. Norton.

     Mr. Das continuing said : Wherever your Lordships would come across any evidence having reference to this "nation day" I would ask your Lordships not to put it down to bomb conspiracy.

     There is another point of view which your Lordships will consider in connection with this and it is the ardent patriotism of these men and the very keenness of their desire for freedom probably which led them astray and in considering the question of sentence your Lordships will consider that much of it was due to

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the impulses of their boyish years and carelessness of their youth. I would ask your Lordships not to pass a sentence which would crush their lives for ever. Their acts were undoubtedly worthy of severe condemnation but in them there were many virtues, many qualities, which came to light. If they are guilty of the deeds, which were imputed to them, they had also many virtues in them and in passing sentence your Lordships will take them into consideration. I appeal in the name of their youth, which led them astray, that your Lordships will not pass a sentence which will crush their lives for ever. There is much good in them and there is no reason to suppose that when they will come back they will do the same thing again. They yet may be made useful members of the society which they have wronged. They yet may serve that very State against which the offence was committed. I appeal to your Lordships not to inflict severe sentence on them. If law is to be vindicated let it be vindicated by all means but my earnest appeal to your Lordships is let justice be also done.

MR. CHUKRAVARTI'S REPLY.

     Mr. Chuckerverti, who appeared on behalf of Indra Nath Nandi, then replied. He confessed that he had been somewhat disappointed in the way in which Mr. Norton presented the case with regard to his client, before their Lordships. Counsel had some difficulty in finding out which part of the evidence Crown relied upon for the purpose of first establishing that there was a reason- able ground for supposing that Indra Nath was a party to the conspiracy, because that had to be established not by the acts or statements of Indra Nath’s so-called co-conspirators. There could not be any question with regard to that. In order to prove that Indra Nath was a party to the conspiracy, Mr. Norton had referred to the Jamalpur incident and he strenuously argued before their Lordships that the judgment of the Magistrate in connection with the binding down of Indra Nath was admissible in evidence. It was not a statement of either Indra Nath or any of his alleged co-conspirators. The judgment could only be put in under the provision of section 43 read with Section 14. So far as Counsel could follow, that was Mr. Norton’s argument. Mr. Chuckerverti then read Sections 443 and 14 of the Evidence Act and said the judgment should not have been treated as evidence in the case. Counsel had not concluded when the Court rose for the day.

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