The Alipore Bomb Trial

NINTH DAY'S PROCEEDINGS

Mr. Das said the main point he made on the plans was that on the 6th different places were shown in the hall at the garden and it was not explained how certain things found on the 7^th and 8^th were not noticed on the 6^th when the different places inside the hall were shown to the plan-maker. Counsel did make an observation: with regard to the numbers, but he now found that Inspector Frizoni in his evidence said : "On the 6^th I think I took some blank form of search lists. I do not think I took a copy of the search list on the 2^nd . The plan maker was there that day. I pointed out the places where several things were found. I gave him the information from memory." Hence no argument could he based on those numbers either way.

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     Mr. Das then said : There is one matter with regard to which I should like to make my application now before your Lordships. When I pointed out I was not allowed to cross examine after the charges were altered and your Lordships observed that if I thought I could remedy the matter by any application to your Lordships your Lordships would hear me on that point. Since then I have considered the matter very fully. I am now impressed with the feeling that this trial has gone on for a long time here and I feel would like to put a few questions to Mr. Birley if your Lordships would allow me.

     Chief Justice.—Are the questions you wish to put to him questions which arise out of this altered charge ?

     Mr. Das :—I will put my case on the question of the altered charge in this way: section 231 says "shall be." It does not leave the discretion to the Judge. As a matter of fact I would have been entitled to cross-examine every witness after the addition. I did not desire to make that application for one moment after all that had happened in this case.

     Chief Justice :—You tell us your wish to ask such questions as you would be entitled to ask under section 23l. You tell us that in your responsibility as counsel giving full consideration to this matter ?

     Mr. Das Yes. My questions will be on the confessions.

     The Chief Justice asked Mr. Norton what he had got to say on the subject of this application.

     Mr. Norton ;—I am extremely loth to interfere with the privilege or right of counsel and his client. But I submit that under section 231 the only possible right which can be claimed or exercised is the right to ask questions with regard to the added charge. There is absolutely no difference between the old charge and the added charge. The only difference is that whereas under the old charge the offences of waging war, abetment and conspiracy are mixed up in one section in the added charge they are put under three sections. The language is identically the same and it is a mere re-arrangement into three sections of what was previously comprised in one. The right claimed can only arise where there has been an alteration or addition to the charges.

     In support of his contention Mr. Norton referred their Lordships to Prinsep’s Criminal Procedure Code and read Sir Henry Prinsep’s note to sections 231.

     Mr. Norton continuing said.—Your Lordship, Mr. Justice Carnduff, has put the matter exactly. If your lordships compare the new charge with the old charge your lordships will find that there is absolutely no difference.

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     Chief Justice :—Supposing we come to the conclusion that there has been an alteration or addition.

     Mr. Norton :-Then I consider he has a right.

     Chief Justice.—I understand, Mr. Das, this alteration and addition particularly concern you so far as they refer to the charge under section 121 ?

     Mr. Das: Yes, and also to the charge under section 121 A, with reference to the alternative portion of it. The Sessions Judge himself in his order says ;—"Mr. Das did not know this before, but knows it now."

     Chief Justice: The alternative charge does not make much difference.

     Mr. Das: It may affect one in this way. If they are not in the alternative I may rest satisfied by submitting before your Lordships that these charges cannot be framed together.

     The Chief Justice; You did not conduct your case before the Court of Sessions on that hypothesis ?

     Mr. Das: I can not say I did.

     The Chief Justice: So that really it seems to be a matter of suggestion. It is only with regard to the charge under section 121 that this difficulty arises.

     Mr. Das: I cannot say I urged it in that way.

     The Chief Justice : The better plan would be this. Instead of asking Mr. Norton to break in now in your argument with a view to see whether or not there has been an alteration, we had better wait till we hear Mr. Norton’s argument on that point in the ordinary course and then if we think necessary we can give the necessary direction.

     Mr. Das : As your Lordships please.

     There is another preliminary point before I go on with regard to the house searches at No. 15, Gopi Mohun Dutt’s Lane. The point is this. With regard to the observation which fell from your Lordship Mr. Justice Carnduff about the blank space in the certified copy, I find in two other places are such spaces. One is at item 31 and the other at item 87.

     Mr. Das then went on to say that when the Court rose on Tuesday he was dealing with the house search at No. 15, Gopi Mohan Dutt’s Lane. That was on the 7^th June at a time when the enquiry was going on at Alipore. This was done without any order from Court.

     Counsel next read and commented on the evidence of the witnesses to this search, and remarked that their evidence could not be believed, one of them being undoubtedly in the service of the police.

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     Mr. Das next referred to the search at No. 48, Grey Street, the house in which Arobinda Ghose, Sailendra and Abinash were arrested.

     After enumerating the articles found in that house Mr. Das alluded to the several points he wished to raise with reference to this search. First there was no satisfactory evidence as to when the documents found were kept before they were found. This was especially so with reference to one document — the "sweets" letter— which according to the prosecution case was not seen by any of the officials till the 11th. Second, the circumstances disclosed in cross- examination showed that some of the documents must have been signed by the search witnesses at places other than No. 48, Grey Street. The prosecution evidence was that whatever was done by the search witnesses was done at 48, Grey Street. The defence was that in the same way that the articles said to have been found in the garden were taken away to Park Street and signed by the search witnesses there, so also the things said to have been found at No. 48, Grey Street were taken away to Park Street and all that was done by the search witness was done there. The third point was that the circumstances tended to show that the search witnesses were police spies. Further, the prosecution evidence was that all these bundles of letters were made up and kept separate. The circumstances showed that these bundles could not have been made daily throughout. He would show by mathematical calculation that the case which the prosecution tried to make out had not been substantiated. The search witnesses were not even called.

     Continuing Mr. Das read the evidence in connection with the search at 48, Grey Street in which there was constant reference to the "sweets" letter. He argued that the evidence made it clear that all the papers and documents seized were sent to the Park Street thana in the same way as the garden exhibits were sent to that place. This was especially the case with regard to the "sweets" letter bundle. Although the case the prosecution made all along was that nobody saw the "sweets" letter till the 11th May, Inspector Gupta when examined said he saw it in the house No. 48, Grey Street. Then this witness reflected and thought he had gone too far and he waived his first statement by saying that he first saw it at the Royd Street detective station where Mr. Denham and Mr. Creagan were sorting the documents on the 4^th or 5^th May.

     Mr. Das then went on to say, there was at least one document said to have been found at this search which, though it bore the signature of the search witnesses, also have a number which was not the number on the search list. That was exhibit 287-1 which bore the signature of Lahiri and the number 7 A It was clear from Mr. Creagan’s evidence that the number must have been put on

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afterwards. Mr. Creagan was surprised that it should hear a number which had no reference to the search.

     Counsel then passed on to deal with what had been referred to in this case as the integrity of the bundles, namely, the bundle of letters seized at the search.

     Continuing Mr. Das said that there was one more point about the search at 48, Grey Street and that was the case for the defence that Babu Bhupendra Nath Bose, the legal adviser of Aurohindo Ghose wanted to be present at the search but was refused admission. The legal adviser heard that the search was going so he went to the house and wanted to go in but was not allowed to enter. Mr. Creagan did not admit that to tl1e fullest extent but he went very near to that. Counsel then read Creagan's evidence who said that he had seen Bhupen Babu and that information might have been brought to him if any one wanted to be present. All other witnesses said that Bhupen Babu was there but they did not admit that he asked for permission to be present at the search. Counsel submitted that upon that it was reasonably clear that Bhupen Babu wanted to be present but was not allowed admission. The fact that he was not admitted was not admitted.

     Mr. Das continuing said that he was pointing out these different things to their Lordships but he did not know what would be the effect of them. If these sorts of things were allowed, where would be the safety of the people ? The legislature said clearly that under the circumstances it would not be safe to rely on the testimony of the police and so they wanted that witnesses should be present at these searches, search lists should be drawn up, etc., so that afterwards there could not he any question as regards the search. These points. were raised before the Sessions Judge. While on this subject Counsel would refer to another letter, which the defence said was a forgery for the purpose of implicating Arabinda. With regard to the credibility of those witnesses Counsel would cite one instance before their Lordships. In one of those Jugantar cases, Inspectors Gupta and Lahiri manufactured a news boy for the purpose of giving evidence and for the purpose of implicating Abinash.

     With regard to the search at 134, Harrison Road, there was no particular point that he desired to make except this that the witnesses were not called. Three persons were arrested there. Two of them were acquitted and the last Asoka died the other day.

     Counsel would next deal with the search at 30-2, Harrison Road. This place was described as belonging to Monmotho Nath Banerjee., who was not arrested at all. The search list made there was a very instructive one. Their Lordships would find that one of the letters found there arrived by post that very day. The

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prosecution said that it was found on the file of letters. The post mark on the letter showed that it was delivered at 8 AM. on the 2^nd . The case for the prosecution was that the police went to the house early in the morning, found the door closed and waited till 11am. when the door was opened. The search was next held and the letter was found.

     The next search was at 4, Raja’s Lane, The search was held on the 16th May without any order of the Court, at a time when the enquiry had already commenced. The search witnesses were not cal ed. The case for the prosecution was that one Taranath Roy Chowdhury, who was one of the conspirators, used to live in that house and therefore all the things found in that room were evidence in this case. Counsel submitted that there was nothing on the record to show that Taranath was a conspirator and therefore the things found there could not be used in evidence against any of the accused. Those things, Mr. Das further submitted, were not found in the room of Taranath but within an open almirah in another room, which used to be occupied by another person. The man in whose room these things were found said that they belonged not to him but to Taranath.

     Mr. Das : The letters found there cannot be used as evidence against anyone. If they were found in the possession of the accused persons, they might have been used on a different footing. They were found in a house, whose proprietor himself was arrested, and on the evidence of the proprietor, the question was whether those things belonged to him or to Taranath. Secondly, there is no evidence on the record to show that Taranath was a member of this conspiracy. Even if it were a fact that Taranath received a particular letter, it is not evidence against others. Taranath may have received a hundred letters from other persons, but those can- not be used as evidence against the accused persons. Amongst those letters, your Lordship will find letters which are between strangers and have nothing to do with Taranath. Those letters, I submit, would not give evidence against anybody. My submission is that the documents in this case may not be used as evidence as they were not found in the possession of the accused persons.

     The Chief Justice: You say that there is no evidence at all against Taranath

     Mr. Dass : Yes. The only evidence against him is that he was the manager of the "Jugantar" at one time. These letters have not been used as evidence in any other way, that is to say to prove the hand-writing or anything. These letters effect Mr. Chuckrabutti`s client more than anybody else and he will deal with it more fully.

     Mr.. Das next dealt with the search at 55-3 Grey Street and said that, as this was not a very important search, he would not

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trouble their Lordships with it, nor would he trouble their Lordships about the search at 37 College Street, which was made on the 23^rd June. There was another search at 10-1 Rani Sankari's Lane on the 1^st and 2^nd July. In this search, the prosecution found a note-book containing formula for the preparation of bombs. Bejoy Chandra Bhattacharjee, who was arrested there, had been acquitted. Counsel did not know whether Mr. Norton was going to make use of this note-book.

     Carnduff J : Has it been proved in whose hand-writing that note is ?

     Mr. Das: No. On the 1^st July they got the note-book. Bejoy was there then but he was not arrested. Inspector Lyon swears that he saw the formula on the first day. He was contradicted by other witnesses. The note-book contained the name of Chandra Kanto Chackerbutty, who had nothing to do with the note.

     Continuing Mr. Das said that the next search was made at 52, Machuabazar Street, on the I6 July, 1908, but it was not a very important search. Then they had the mofussil searches. There was a search in the house of Satyendra Nath Bose at Midnapore, but Counsel would not deal with that. The next search was at Chatra in Serampore and that had a reference to Rishi Kesh Kanjilal. The search was made on the 10th May. In this connection, Counsel drew their Lordship‘s attention that not only Rishi Kesh’s house was searched but that of his father-in-law’s. There were four search witnesses but none of them were called. Counsel submitted that on the 10^th May, the police had no power to Search without an order from the Court. Further these documents, which were found there, were not proved and hence they could not be used as evidence.

     Mr. Das then said that the next search was at Khulna where Sudhir Kumar Sircar was arrested. This search was also on the 10^th May. Counsel submitted that this search was done without an order of the Court, and secondly, that the documents which were found there could not be said to be in Sudhir`s possession because it was his father's house where he as well as his brothers used to live. The letters upon which the prosecution relied were letters which were written not by Sudhir but by one of his brothers to another brother.

     Then there were three searches, namely, one at Deoghar, one at Jessore and the other at Maldah, but these were not important searches.

     The search which was made at Baniachong, Sylhet, on the 15^th May, was rather an important one. This was the house of the three Sen Brothers — their father’s house rather. The search list was not prepared at the time when the search was made but after-

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wards at the thana from the notes which were taken at the time of the search. At first the defence were told that the notes from which the search list was prepared had been destroyed but after- wards these notes were produced. In connection with the search, the Deputy Superintendent of Police, Mr. Kemp, and three other police witnesses were examined. After reading their evidence, counsel submitted that in the absence of the original notes — his contention being that the notes which were subsequently produced were not the notes which were at first made-the search list could not be relied on. The notes which were subsequently produced were nothing but simply copies of the search list almost word for word. Further, from the evidence of one of the prosecution witnesses it appeared that the original notes were destroyed.

     The Court then rose for the day.

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