The Alipore Bomb Trial

SECOND DAY’S HEARING

Mr. C. R. Das continuing his address said that when the Court rose on Monday he was dealing with the point of jurisdiction. Before he left the point of the want of jurisdiction generally as apart from the particular charge, he desired to point out the evidence of certain witnesses with reference to what transpired before Mr. Thornhill. The first witness was Inspector Purna Chandra Biswas who said that the complaint was written by the Commissioner of Police and presented by him to Mr. Thornhill. It was against Arabinda's "gang of outlaws." He produced 7 men before Mr. Thornhill on the 5^th May and they were sent to Alipore.
     Therefore what appeared in the case of that evidence was that a complaint was lodged before Mr. Thornhill, that search warrants were taken out from Mr. Thornhill, that the men arrested were

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produced before Mr. Thornhill and that on the 5^th May this Inspector applied for an order that these persons should be transferred to Alipore. The application for transfer purported to be made under section 182, but under that section Mr. Thornhill was not competent to enquire into that offence. At any rate it gave Mr. Thornhill no power to transfer the case. No application was made to the High Court to which Mr. Thornhill was subordinate to obtain an order for transfer. Therefore when those seven men were produced before the Joint Magistrate and then before Mr. Birley the latter had no jurisdiction to take cognizance of that case. Further although Counsel had not got_ the exact terms of the complaint made before Mr. Thornhill he had sufficient evidence on the record to show that Mr. Thornhill not only issued the search warrants but also the arrest warrants. These particular documents were not produced and his submission was that they were suppressed.

     If their Lordships looked at the evidence of Inspector Frizoni they would End that he said ;—" I had warrants to arrest persons found in the garden and to search for the things I mentioned." I don’t know if the warrants were signed by Mr. Thornhill, but they were by some Magistrate. I believe they were signed by the same Magistrate.

     Counsel then went on to say that he had asked the prosecution to say whether the search warrants were issued under section 96 or under the Arms Act, but had been unable to get an answer.

     Chief Justice : Are the search warrants on the record ?

     Mr. Das; Some of them are. If I proceed to argue under the Arms Act I am told they were issued under section 96. If I proceed to argue under section 96, I am told they were issued under the Arms Act.

     Mr. Norton produced and read two search warrants, dated the 1^st May, addressed by Mr. Thornhill to the Commissioner of Police in respect of No. 13-t, Harrison Road and No. 23, Scott’s Lane.

     Mr. Das: These places are entirely within the jurisdiction of Mr. Thornhill.

     Mr. Norton then read the copy of the complaint.

     Mr. Das : We may take it that is the complaint lodged on the 1^st May. After the arrest these men were produced before Mr. Thornhill on the 5th May and in that order he says these men were brought upon charges under sections 121, 121 A and 122 I. P. Code. There was only one charge with reference to the Arms Act. Therefore, it leaves no doubt now that the arrests were made in pursuance of orders issued by the Chief Presidency Magistrate of Calcutta.

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     Chief Justice : What we would do is to request Mr. Thornhill to send all warrants on record in his court in connection with this Alipore case.

     Counsel then referred to the evidence of Superintendent Merriman, Inspector Madden, Superintendent Creagan and said that from those it appeared subject to the documents which would be produced afterwards, that, at that time they were not clear in their mind that they could arrest without warrant under section 54-. He then referred to exhibit 124, which was a letter addressed to the District Magistrate of Alipur by Inspector Gupta to record the confessions and on which Mr. Birley took cognizance of the case. Exhibit 126 which purported to be the first information was dated the 17^th May. From those exhibits it appeared that the case for the prosecution was that they had from the day of the Narayangarh outrage been following the clue of the secret society and on the day when the arrest took place their suspicions were that the accused persons were members of a conspiracy for the purpose of overawing the Government, and if the arrest took place on that suspicion section 54 did not apply. From a perusal of those facts and having regard to the statements made by Mr. Birley himself it was evident that no fresh proceedings were started and that the proceedings went on from day to day. If their Lordships took the view that from the 19^th, when the complaint was made and the statements taken, the proceedings were regular then where would be the safety of the subjects. In this connection Counsel drew the attention of their Lordships to a passage reported in III Q. B. 775 Martin vs Meloni and in conclusion submitted that the Magistrate did not exercise the powers vested in him under sections 200, 202 and 204 of the Criminal Procedure Code, and the intention of the legislature was defeated.

    Counsel then said that with regard to the offence under section 121 Mr. Birley had no jurisdiction to take cognizance of the case and hence the commitment was without jurisdiction.

     In support of his contention counsel cited the case reported in 24 Allahabad, 256. With regard to section 122 counsel submitted that there was no evidence that the Magistrate took cognizance of the offence under that sanction. Therefore the Sessions Judge had no jurisdiction to try the offence under that section. Counsel cited the case reported in 8 Bombay 200. With regard to section 121 A. Mr. Das submission was that the offence which was charged against the appellants did not cover either by the order or by the complaint.

     There was another point that the orders were not signed by His Honour the Lieutenant-Governor. They were signed by Mr. Geidt, the Chief Secretary. There was statutory authority as to the signature by secretaries with regard to their Excellencies the

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Viceroy and the Governor of Bombay, but there was no statutory authority so far as the Government of Bengal was concerned. If that was so the prosecution must show that there was an authority but that was not shown.

    Mr. Das cited a case in 35 Calcutta which appertained to signature. In that case the Lieutenant—Governor of Bengal himself affixed his signature to the sanction. Mr. Das did not propose to follow the entire contention to be found in that case. He submitted that the prosecution should have proved the agency or authority in making the order.

     Referring to the question of jurisdiction counsel cited a case reported in 29 Bombay 449. In that case there was a misjoinder of charges. And their Lordships held that the question of retrial was not to be decided by the Judges but by the prosecution. Counsel also cited a case reported in 29 Calcutta in which it was held that if there was no legal trial there could not be retrial.

     Counsel next submitted that the accused were entitled to be tried by a jury. He contended that ever since 1726 when the Mayor’s Court was established in Calcutta the English Common and Statute laws were made applicable to the presidency towns and the power delegated to the Indian legislature was limited affecting allegiance to the Crown. The right to be tried by the jury was such a matter. Therefore if there was anything in the Procedure Code which militated it was ultra wires. He referred to Clarke’s Rules of Supreme Court in support of his contention. He next cited Morley`s Digest volume I, page 11 and Ilberts’ Book on the Government of India, second edition, page 32 which referred to the introduction of English law in India. He next cited Morton's Report and other Reports and some Privy Council cases and 6 Calcutta, 24 Calcutta and 5 Calcutta Weekly Notes, 659. In all those cases it was held that the whole of the English Common Law would apply in India.

     Counsel next referred to several sections of the Indian Councils Act of 1861. If the provisions in the Criminal Procedure Code, taking away the right of trial by jury, affected the allegiance of the subject to the Crown then those provisions were ultra rims. The subjects had also some rights to demand and one of those privileges was that no man should be kept in custody without trial and the right to be tried by peers. By extending the English law in India no distinction was made between Indians and Europeans as regards the application of those laws. Surely the right was not gone because in successive criminal cases that right was demanded. The question of vast importance, it was a question of constitutional right. From the decision in Amir Khan's case it was evident that the then Chief Justice admitted the existence of that right.

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     Mr. Justice Carnduff observed that the same point was raised in a case tried by the Special Tribunal and the objection taken by counsel was over-ruled.

     Mr. Das submitted that in the judgment of that case no reason was given for over-ruling that objection and with the permission of their Lordships and specially of Mr. Justice Carnduff who was a party in that trial, he would proceed with his argument on that point.

     The counsel proceeded to read extracts from the Judgment in Amir Khan's case is which it was said by their Lordships that it would be a startling thing to find constitutional rights of the people taken away by a subordinate legislature. Whatever could be said of Regulation III of 1818, the same thing could not be applied to the Criminal Procedure Code. Counsel in conclusion submitted that the people of the presidency towns were entitled to a trial by jury. The next point taken by Mr. Das was that Barin being a European British subject was entitled to be tried by a Jury. The Sessions Judge had no power to try a British subject on charges punishable with death or transportation. If he did try such a case he could not pass a higher sentence than one year’s rigorous imprisonment. And no waiver of this right by the accused entitled a Sessions Judge to try him.

     Chief Justice. :—Was Mr. Beachcroft a Sessions Judge or an Additional Sessions Judge ?

     Mr. Das :—Additional Sessions Judge.

     Counsel after reading the sections from the Procedure Code on this point observed that in this case there was no question that Barin was a European British subject and the Magistrate knew of it. It had been said that if the accused waived his right he would not be regarded as an European British subject. Counsel said that the question of claim and adjudication of claim only arose where the point was debatable. Where there was no question of his being a British subject, section 454 was not applicable. Section 447 clearly applied in this case and the Sessions Judge was not competent to try him.

     In support of his contention, counsel cited a case reported in Taylor an Bell, 219. In this case a European British subject was tried without a jury and imprisoned and a right of Habeas corpus was demanded on the ground that it was an unlawful detention as the court which tried him was no court at all. In that case no Habeas corpus was issued because the Judge did not know that the accused was a European British subject. He next cited a case reported in 6 Calcutta, page 83.

     At this stage, court rose for the day.

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