The Alipore Bomb Trial

THE JUDGMENT

IN THE HIGH COURT OF JUDICATURE AT FORT

WILLIAM IN BENGAL.

The 23rd November 1909.

CRIMINAL JURISDICTION.

Present :

THE HON'BLE SIR LAWRENCE HUGH JENKINS

Knight, Chief Justice.

AND

THE HON'BLE MR. JUSTICE CARNDUFF.

JUDGMENT.

Jenkins, C. J., after same preliminary remarks, said :—We are asked to hold that the appellants were all members of a secret Society, and joined in this unlawful enterprise; that they collected arms and ammunition with the intention of waging war against the King; that they with others, known and unknown, conspired to wage war against the King or to deprive him of the Sovereignty of British India; and finally that they actually waged war against the King.

The period covered by the charge is described therein as "on or about 12 months preceding the 15^th of May 1908" and the scene of the offences charged is laid at "various places in Bengal including 32, Muraripukur Road."

It is said that the police came to hear of the Society and its workings first in October 1907, and then in January 1908. In the month of March 1908 the work of watching the members of the Society began, and thereafter a close observation was kept on their movements between various places and in particular the Garden, 15, Gopi Mohun Dutt’s Lane, 134, Harrison Road, 4, Harrison Road, 23, Scott’s Lane, 38-4, Raja Nava Krishna Street and 48, Gray Street, all of which, except the Garden, are in the town of Calcutta. The action of the police was precipitated by the murder on the 30^th of April 1908 at Mozufferpore of 2 ladies,

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Mrs. and Miss Kennedy, by the throwing of a bomb, the culprits being Khudiram Bose and Profulla Chaki, of whom the first has paid the extreme penalty of the law, while the other escaped punishment by committing suicide as he was on the point of arrest. This shocking outrage rendered delay no longer possible, and after a conference of leading officers, the police in the early morning of the 2^nd of May, armed with search warrants, entered the Garden and the several places of conspiracy in Calcutta, arrested the inmates, and took possession of the documents and articles they found.

* * * * *

In support of the appeals before us the appellants have urged that the convictions are bad in law, and further that they are not justified by the evidence on the record. In a case so voluminous innumerable arguments would naturally arise on one side and the other, and though many from their transient character must pass unnoticed in this judgment, all have been carefully considered and weighed. First, then, I will deal with the several legal objections that have been advanced against the convictions now under appeal.

I need not discuss at length the contention that the right to trial by Jury could not be taken away by the Criminal Procedure Code. The argument rests on the proviso to Section 22 of the Indian Councils Act, 1861, whereby it is declared that the Governor-General in Council shall not have the power of making any law which may affect any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom.

But the point has been determined adversely to Mr. Das’ contention in a recent decision of this Court by which we are bound. Therefore we must overrule this objection.

The next objection taken is that Barin being a European British subject the Magistrate was bound to commit him to the High Court in accordance with the provisions of Section 447 of the Criminal Procedure Code, and that the rest of the accused should have been similarly committed in compliance with Section 452.

Criminal proceedings against European British subjects are regulated by Chapter XXXIII of the Criminal Procedure Code, and provision is made in that Chapter for the tribunal before which a person answering that description can be tried and as to the sentence that may be passed. It is conceded by the Crown that it became apparent on the face of the proceedings in the course of the enquiry before the Committing Magistrate that Barindra Kumar Ghose was a European British subject, but it

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has been held that he waived his right to be treated as such. This, it is contended by Mr. Das, is erroneous.

After referring to sections 447, 4,49, 452 and 454 Cr. R. P. His Lordship observed :

On the strength of these sections it is contended (1) that Barindra Kumar Ghose could only be committed to the High Court; (2) that his co-accused too could only have been so committed ; (3) that there can be no waiver of a want of jurisdiction apparent on the face of the proceedings ; (4) that sections 453 and 445 could have no application where, as here, the status of European British subject is manifest and not open to doubt; (5) that there has been no waiver by Barindra ; (6) that if there was a waiver in fact, then it was not after he was made fully acquainted with all that he was giving up ; and (7) that in any case there was no waiver by his co-accused.

Though I recognise the force of Mr. Das' argument I hold that on the first 4 points we are concluded by the decision of a Bench of this Court in R. Vs. Quiros, I. L. R. 6, Cal. 83, and I do not think what was then said can be regarded as mere obiter dictum. What is obiter dictum is sometimes difficult to decide, but a valuable guide to the solution of this difficulty is furnished by Lord Halsbury L. G. in Watts Vs. Assets Company, L. R. 1905 A.C. at page 330 where he said, "When a learned Judge is giving his views why this or that does not come within the meaning of the law which makes a thing inoperative, and when he distinguishes the case before him by pointing out there was no fraud and therefore the fraud imputed did not exist, I very much doubt whether that is one of those things which can be described as a mere obiter dictum. It is part of the law which is guiding his judgment and part of the law he is bound to expound in the judgment he is pronouncing." In the light of these remarks I am of opinion that what was said in the course of the judgment in Quiros’ case is more than mere obiter dictum: it was an exposition of the law necessary for the judgment then pronounced. Moreover, what was then said has been repeatedly adopted as the basis of subsequent decisions; and we further End that since the judgment in Quiros’ case the language on which it was based has been repeated in the Criminal Procedure Codes of 1882 and 1898, and this is a legislative recognition which we cannot disregard. In the light of this decision I am of opinion that Barin could relinquish his right to be dealt with as a European British subject, and on the facts I hold that he actually did relinquish this right.

From this it follows that the plea is of no avail either to Barin or his co-accused, and that the Court of Sessions had complete jurisdiction to dispose of the case.

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It is next argued that there was no jurisdiction to take cognizance of the several offences of which the accused have been found guilty, that is to say, of offences under Sections 121, 121-A and 122 of the Indian Penal Code.

It is provided by Section 196 of the Code of Criminal Procedure that no Court shall take cognizance of any offence punishable under Chapter VI of the Indian Penal Code. ..... unless upon complaint made by order of or under authority from the Governor-General in Council, the Local Government, or by some officer empowered by the Governor-General in Council in this behalf. The authority in this case has proceeded from the Local Government. This objection has been taken on behalf of the appellants belonging to what has been called the first batch, against whom a complaint was preferred under the order or authority of the Local Government on the 17^th of May 1908, (Exhibit 1). It is in these terms—" Whereas it has been made to appear to His Honour the Lieutenant—Governor of Bengal that there is reason to believe that during a period commencing from about the 16^th October 1905 to date at Maniktollah (32, Murraripuker Road, Calcutta) and other places the following persons have committed offences punishable under Sections 121-A, 122, 123 and 124 of the Indian Penal Code, Babu Purna Chunder Biswas, Inspector of Police, Criminal Investigation Department, Bengal, is hereby ordered and authorised by His Honour the Lieutenant-Governor of Bengal under the provisions of Section 196 of the Code of Criminal Procedure to prefer a complaint against and to prosecute these persons, namely : " (then after setting out a list of names in which are included the names of the appellants in the first batch, the document proceeds) " for the said offences under Sections 121-A, 122, 123, 124 of the Indian Penal Code or under any other Section of the said Code which may be found to he applicable to the case.

By order of His Honour the Lieutenant-Governor of Bengal,

E. A. GAIT,

Chief Secretary to the Government of Bengal"

17^th May 1908.

On the 19^th of May a complaint was preferred in the form of an allegation made in writing to Mr. Birley and after naming (amongst others) the appellants in the first batch the complainant Purna Chunder Biswas submitted his complaint " charging the members of the Secret Society under Sections 143, 145, 150, 157, 121, 121-A, 122, 123 and 124, of the Indian Penal Code."

On the same day Inspector Purna Chunder Biswas was examined on solemn affirmation on his complaint and stated

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that sanction has been given to him by the Government of Bengal to prosecute certain persons under Sections 121-A,. 122, 123, 12,4, Indian Penal Code. Then after alleging that he complained against the 33 persons named in the Local Government’s order and describing their several arrests he proceeded in these terms.

" These persons are all accused of organising a gang for the purpose of waging war against the Government and overawing the Government by means of criminal force."

On the strength of this authority or order and complaint the Magistrate, after he had completed his enquiry, committed these appellants for trial to the Court of Sessions for offences under Sections 121, 121-A and 123 of the Indian Penal Code.

In the Court of Sessions objection was taken on behalf of the accused to the charge under Section 121, Indian Penal Code and thereupon Counsel for the prosecution informed the Court that he would file a fresh sanction, as he called it, in respect of that section, though he did not admit that the original sanction was insufficient.

He subsequently produced what was described as a sanction given by the l Government under Section 196 of the Criminal Procedure Code and in compliance with his application the Court framed charges under Sections 121 and 122, Indian Penal Code.

The sanction here referred to was an order and authority in the terms of that of the 17th of May which 1 have already cited save that it mentioned Section 121 of the Indian Penal Code in addition to the other sections set forth in the earlier authority. It was filed on the 19^th of October 1908.

Two points thus arise: first, was a complaint under Section 121 of the Indian Penal Code authorised by the Local Government, and secondly, was a complaint in fact preferred under that section ? .

Section 196 of the Criminal Procedure Code reserves to the Local Government (among others) the power of determining whether cognizance shall be taken by the Court of any offence punishable under Chapter VI of the Indian Penal Code except Section 127.

Seeing that this chapter deals with offences against the State the policy of this safeguard is manifest ; the maintenance of this control is of the highest importance; and it is beyond the competence of the Local Government to delegate to any other body or person this controlling power and the discretion it implies.

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The question whether action should be taken under Chapter VI is more than a matter of law ; considerations of policy arise and these can only be determined by the authorities specially designated in the section.

It further appears to me to be the true implication of Section 196 that the judgment of the Local Government should be specifically directed to the particular sections of Chapter VI in respect of which proceedings are to be taken, and that the order or authority should be preceded by, and be the result of, a deliberate determination that proceedings should be taken in respect of a particular section or particular sections of the Chapter and no other.

It would, I think, be opposed to the true intendment of Section 196 for the Local Government by its order to give its legal or other advisers a roving power to determine under what sections of the Chapter proceedings should be taken, and to abandon to them the discretion and responsibility that properly belong to itself; and I should hesitate to take a View of this section that might permit the Government to entrust to the zeal of an advocate or of those by whom he may be instructed, the determination of the serious questions involved.

To turn from these general observations to the language of the order of the Local Government, can it be fairly said that it permits a complaint of an offence under Section 121, Indian Penal Code ?

This order was passed on the 17^th of May and at that time some of the most prominent of the persons arrested had made their confessions, and though the Local Government had not before it all the evidence that was afterwards adduced, it must have been aware of the facts on which reliance is now placed as constituting an offence under Section 121.

And yet the order does not specify that section.

It recites that it had been made to appear to His Honour the Lieutenant-Governor of Bengal that there was reason to believe that the appellants (among others) had committed offences punishable under Sections 121-A, 122, 123 and 124 of the Indian Penal Code. It had not been made to appear that there was reason to believe that they had committed offences under Section 121.

Then again the order does not mention Section 121, but only those specified in the recital. Can it in these circumstances be reasonably contended that on a true reading of this order it was intended to cover Section 121, Indian Penal Code ? I think not. It is not as though this section had been overlooked, for it is the leading section of the chapter and is concerned with the most serious offence of all. I cannot read the recital

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to the order without coming to the conclusion that it had not been made to appear to His Honour the Lieutenant-Governor of Bengal that there was a reason to believe an offence had been committed under that section, nor can I suppose that this view was not the result of careful deliberation.

In the face of these facts I decline to impute to the Local Government the sense of irresponsibility which is involved in the argument advanced by Counsel that an authority was intended to be given in respect of an offence under Section 121 which in the view of that Government there was no reason to believe had been committed. It is true that the order winds up with the words "or under any other section of the said Code which may be found to be applicable to the case." But found by whom ? The order does not explain. It can hardly mean ‘by the Court,’ as it relates to the complaint; and if it means, found by anyone other than the Government, then it involves a delegation which cannot be sustained.

It is to be noticed for what it is worth that, in later documents, the Local Government expressly mentioned Section 121, and that in his sworn statement which followed on the Local Government’s order it is distinctly said by the complainant that sanction had been given to the complainant by the Government of Bengal, "to prosecute certain persons under Sections 121-A, 122, 123, 124,, Indian Penal Code", and no suggestion is made of an authority to prosecute under Section 121. Moreover Mr. Norton, after his argument came to the notice of the Local Government, informed us that he was instructed to state that the Local Government did not desire him to argue that it was its intention to include Section 121 of the Indian Penal Code in their order of the 17^th of May. For the foregoing reasons I hold that the order of the 17^th of May did not authorise a complaint under Section 121 of the Indian Penal Code.

But then it has been argued by Mr. Norton that any defect in the procedure of the Magistrate’s Court has been cured by a sanction obtained from the Local Government while the case was before the Court of Session. But under Section 196 the only order or authority within the competence of the Local Government is one that permits a complaint; the order actually passed was that there should be a complaint; and in fact it appears that no complaint was made. It is clear therefore that the so-called sanction on which Mr. Norton relied before the Court of Session, and has again relied here, is absolutely valueless.

Finally it is contended that any defect in the commitment was cured by Section 532 of 'the Criminal Procedure Code, and as authority for this, reference has been made to Queen Empress vs.

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Morton, I. L. R. 9 Bombay 288, Queen Empress vs. Tilak, I. L. R. 22.Bombay 112.

The decision of Queen Empress vs. Morton turned on a consideration of Sections 197 and 532, and to appreciate what was actually determined regard must be had to the terms of the first of these sections, which differs materially from Section 196.

Section 197 makes the power of cognizance dependant on sanction, and the defect in Queen Empress vs. Norton was that there was no sanction for the magisterial enquiry, so that in committing the accused to the High Court the magistrate purported, "to exercise powers duly conferred which were not so conferred." The High Court however had (apart from this defect) power to take cognizance of the offence as before the trial the necessary sanction had been obtained.

Here however there has been a want of jurisdiction not only in the Magistrate, but also in the Court of Session, for at no stage have the conditions of Section 196 been satisfied.

It is true that in Queen Empress vs. Tilak, I. L. R. 22 Bombay, a learned Judge holding the High Court Sessions in Bombay expressed an opinion that the decision in Queen Empress vs. Morton was binding on him though he was then concerned with a case to which Section 196 was applicable.

But it is to be noticed that this was the decision of a single Judge given in the course of argument and without adverting to the fundamental distinction between the two sections. To borrow the language of Sir Barnes Peacock in Queen Empress vs. Navadvip, 15 W. R. Cr. at page 7311, the decision in Tilak’s case, was "in the nature of a nisi prius decision by which Courts sitting in Banco do not consider themselves bound." Moreover a different view has been taken of the position by a bench of the Punjab Chief Court (Shamshul Khan’s case, 25 P. J. Rev. No 1633 ).

The result then is that the Court of Sessions had no jurisdiction to convict the appellants in the first batch under Section 121. But I think it right to add that this conviction does not fail merely on the lack of jurisdiction, for on the merits too I should have held that no offence under that section has been proved. In respect of the offences under Sections 121-A and 122 of the Indian Penal Code, I hold there was a good and sufficient authority under Section 196 of the Criminal Procedure Code, and an earlier decision of a bench of this Court furnishes an answer to the objection to the sufficiency of the signature of the Chief Secretary on the document containing the authority (Apurba Krishna Bose vs. Emperor, I. L. R. 35 C. 141.)

Though it was at the outset objected that the charges were bad for multifariousness, in the end this was not pressed, and I think

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rightly, for, though the charges as ultimately framed are not happily expressed, I think on a fair reading of them they merely purport to place before the Court different aspects of the same transaction. And I further think we should be applying to the charges, as ultimately framed, too strict a reading and too limited a meaning, if we were to give effect to Mr. Das’ argument that the fourth head is limited to a conspiracy to wage a war which according to the first head had been already waged, or if we were to limit the fifth head by reference to the language of the fourth.

As in the view I take the charge under Section 121 can not be sustained, Mr. Das’ objection that he was not allowed to cross examine the witnesses on the charges as reframed falls to the ground, for on his own statement this objection would have no force in reference to the charge under Section 121-A., and it is with that section alone we are now concerned. I also hold that the objection to the proceedings on the ground of misjoinder of parties is not well founded and must fail.

Having thus disposed of the several objections to the legality of the present proceedings, I will deal with the merits, but, before discussing the details of the individual cases, it will be convenient to take up certain general questions that call for consideration and decision.

And first I will deal with the objection that the confessions are not admissible, for this involves a question of vital importance.

As I have already said Mr. Birley purported to record them under Section l64 of the Criminal Procedure Code.

But it is urged that they do not come within the terms of this section, that there is no other section of the Criminal Procedure Code that can be called in aid by the Prosecution, and apart from the Code, there is no provision of law under which their admission can be justified.

For the law relating to confessions we must first turn to the Evidence Act passed with a view to consolidating, defining and amending the Law of Evidence, of which the law as to confessions forms a part.,

The relevance of confessions is defined in that catena of sections which come under the general heading "Admissions."

Section 21 declares that admissions are relevant and may be proved as against the person who makes them and a confession is an admission.

Sections 24 to 29 qualify the generality of this provision, and of these Sections 25, 26, and 27 practically reproduce Sections 148, 149 and 150 of the Criminal Procedure Code of 1861. As these provisions were incorporated in the Evidence Act, which received the Governor-General’s assent on the 15^th of March 1872,

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they naturally did not find a place in the Criminal Procedure Code of 1872 which received the Governor-General’s assent on the 25^th of the same month.

The Criminal Procedure Code of 1872, however, was not wholly silent as to confessions, for by Section 122 it empowered a Magistrate to record confessions in the manner therein prescribed. This section roughly corresponds with Section 164 of the present Criminal Procedure Code by reference to which the present objection must be determined.

The objection to their admissibility under Section 164, Criminal Procedure Code, rests first on the contention that, when they were recorded, the enquiry had commenced, and next on the fact that the Magistrate, who, recorded the confession, was the Magistrate before whom the enquiry was conducted and by whom the order of commitment was made. In support of this view reliance is principally placed on the Full Bench decision in Empress vs. Anuntram Singh, I. L. R., 5 Cal. 954 which it is argued, supports the view that, at the time when Mr. Birley recorded the confessions, the enquiry had commenced, and that he could not in the circumstances record the confessions under Section 164. The decision in Anuntram Sing’s case was on Section 122 of the Code of 1872, and it will therefore be necessary to compare the provisions of that Code with those of the present Code, in order to estimate the extent to which that decision can be regarded as a controlling authority for the purposes of this case. First then, I will examine the provisions of the Code of 1898 and consider their application, apart from authority, to the circumstances of this case. Section 164 provides, that...(section quoted here).

Therefore to come within the scope of this section a confession must be made either (1) in the course. of an investigation under the Chapter XIV, or (2) at any time afterwards before the commencement of the enquiry or trial.

An investigation includes all proceedings under the Code for the collection of evidence conducted by a Police officer [Section 4 (b)] and there can be no doubt on the facts that the confessions in this case were made in the course of an investigation under Chapter XIV. But then it is said that this is immaterial as they were not made before the commencement of the enquiry. To this however the answer is that the condition requiring the confession to be prior to the commencement of the enquiry is only imposed when the investigation has ceased, and not when it is made in the course of the investigation.

This appears to me to be the true and natural meaning of this provision which is a repetition of the provision to this effect contained in the Code of 1882, and I think this is none the less so because the punctuation in the Code of 1882 has not

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been retained. But even if it be assumed for the sake of argument that the commencement of the enquiry terminates the applicability of Section 164, can it be said that on the 4th of May Mr. Birley had commenced the enquiry ? To determine this we must have regard to the words of the Code. Chapter XV deals with the Jurisdiction of the Criminal Courts. in Inquiries and Trials: the first group of Sections, that is, Sections 177 to 189 deals with "Place of inquiry or trial :" the second group is headed "Conditions requisite for Initiation of Proceedings? Now Section 190, which is the leading section of this group, indicates the conditions on which a Magistrate may take cognizance of an offence, that to my it may be (a) upon receiving a complaint, (b) upon a police report, or (c) upon information received from any person other than a Police officer, or upon his own knowledge or suspicion that such offence had been committed.

On the 4^th of May there had been no complaint or police report, and the only information was received from Mr. Clarke, a Police Officer, who had taken part in the arrest, and possibly from Mr. Plowden, another Police officer. But this information, being from a Police officer, would not have justified Mr. Birley in taking cognizance, and it does not appear that he had any knowledge or suspicion apart from this information. It follows, therefore, that on the 4^th of May none of those conditions had been satisfied on which alone cognizance could have been taken by Mr. Birley and therefore the inquiry cannot then have commenced.

The necessary result of this train of reasoning is that the confessions in this case fall within the scope of Section 164, if be had only to the words of the Code. But is there anything in the decided cases which precludes us from accepting this reading of the Act? Certainly not the case of Empress vs. Anantram Singh, I. L. R. 5 Cal. 954, for that was a decision on the Code of 1872 from which the words and provisions on which I have relied, are absent. The same remark obviously applies to the decision in Empress vs. Yakub Khan, I. L. R., 5 All. 253 , which merely purports to follow the authority of Empress vs. Anuntram Singh.

Moreover, it is to be noticed that in both those cases confessions were upheld on the and that they did not come within Section 122 of the Code of 1872, but within Section 193, which, to to some extent, resembles the present Section 342. But words have been introduced into the present section which would make the decisions in those two cases impossible in these days. The decision in Sat Narain Tewari vs. Emperor, I. L. R., 32 Cal. 1055, has no bearing on the point I am now discussing, for there in the opinion of the learned Judges. the Magistrate was carrying on an enquiry under section 202. Nor does 5 C. L. R. 238 throw

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any light on the present question. My conclusion therefore that the enquiry had not commenced is not disturbed by anything in the decided cases.

But then it is contended that as Mr. Birley was the Magistrate who conducted the enquiry and ultimately committed the appellants he had no jurisdiction to record the confession. This argument rests on the decisions in Reg. vs. Bai Ratan, 10 Bom.., H. C. Rep. 126 and Empress vs. Anuntram Singh cited above. But both these decisions were on the language of the Code of 1872 which materially differs from that of the present Code. It is now provided that "Every" Magistrate may record a confession, the word "Every" being substituted for "any," and there has also been added the explanation " It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case."

These alterations make it clear that it can no longer be contended on the strength of the decisions in Reg. vs. Bai Ratan and Empress vs. Anuntram Singh that confession recorded by a Magistrate who afterwards conducts the enquiry is outside the provisions of Section 164.

In the view I take, it is unnecessary to consider whether if the enquiry had actually commenced on the 4^th of May the confessions would have been inadmissible. The authority of R. vs. Narain ( Ratan Lal’s unreported cases 679 ) is opposed to this view, and the present inclination of my opinion is that the argument seeks to derive from the provisions of the Code a limitation on the law of confessions as defined by the Evidence Act for which there is no sufficient warrant. Then are the confession vitiated by the fact that in some instances, and to some extent, the statements made were in response to questions ?

As far back as 1868 it was held by Sir Barnes Peacock in Queen vs. Nobodeep 15 W. R. Cr. 71 that a statement made by a prisoner in answer to questions were admissible against him, and now we have statutory recognition of this view in Section 29 of the Evidence Act. Therefore the mere fact that a statement was elicited by a question does not make it irrelevant as a confession. It is to be observed that Ullaskar in effect invited Mr. Birley to question him, and that he should in the circumstances have complied with the request cannot call for any adverse comment. I do not however intend to indicate that the fact of statements being elicited by questions may not be very material to an enquiry as to whether the confession is voluntary or not.

On the contrary there are circumstances in which it may be a most material fact, for, unhappily, not merely involuntary, but actually false confessions come before the Courts.

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Indeed it may be a question whether such a confession has not come to light in the course of these proceedings, as it has been stated before us by Mr. Norton that, for one of the attempted outrages on the late Lieutenant-Governor disclosed by the confessions in this case, certain coolies have been tried and convicted and are still in prison, part of the evidence against them being their own confessions. If the confessions in this case are true, then, as Mr. Norton has remarked, there may be reason to apprehend that those coolies have been improperly convicted. Mr. Norton who appeared for the Crown in that case as well as this has submitted that the Government should be moved by us to release those coolies. It is however outside our province to investigate this matter, but no doubt it will be made the subject of careful enquiry by the Government, if this has not already been done, and the representation of Counsel for the Crown will be brought to the notice of the Government. I will differ for the present considering how far the individual confessions in this case are or are not voluntary, for this enquiry will be more conveniently pursued as each confession comes to be separately considered. But, apart from this, the result is that in my opinion Mr. Birley has complied with all the provisions prescribed by Section 164 of the Criminal Procedure Code so that the presumption indicated in Section 29 of the Evidence Act applies. In addition to that he has given evidence at the trial affirming his belief that the confessions were voluntary, and, in the circumstances, I hold that the confessions have properly been admitted in evidence by the Sessions Judge. The Sessions Judge has relied largely on these confessions, and in this I think he was justified ; for, while fully realising the caution and reserve with which confessions must ordinarily be accepted, those with which we are concerned in this case are so exceptional, as not to create in my mind the slightest apprehension of sinister influence or pressure.

I now come to the evidence of what have been termed the watch or shadowing witnesses namely Inspector Purna Chandra Biswas, P. W. No. l, Inspector Satish Chandra Banerji, P. W. No. 14, Inspector Chandi Charan Mukherji, P. W. No. 78, Sub-Inspector Suresh Chandra Ghose. P. W. N0. 93, Inspector Narendra Kumar Mullick, P. W. No. 95, Shiva Kali Das, P. W. No. 98, a police informer, Inspector Soshi Bhusan De, P. W. No. 101, Sub-Inspector Balai Chandra Ganguli, P. W. No. 102, Sarat Chandra Das in Police employ, P. W. No. 107, and Sub- Inspector Sarat Chandra Palit, P. W. No. 192. The evidence of these witnesses so far as it relates to the presence of any of the accused at a place of conspiracy is either general or specific. As a specimen of general evidence I will cite an instance taken from the testimony of Satish Chandra Banerji who says "At 32, Muraripukur Lane from 20^th April to 27^th I saw these ( Bibhuti Bhusan

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Sircar, Sailendra Nath Bose, Sushil Kumar Sen, Nirapada Roy, Indu Bhushan Roy, Upendra Nath Banerjee, Birendra Chandra Sen, Abinash Chandra Bhattacharjee, Sachindra Kumar Sen, Hrishikesh Kanjilal, Sudhir Kumar Sircar, Sisir Kumar Ghose, Bijoy Kumar Nag, Pares Chandra Maulik, Din Doyal Bose, Purna Chandra Sen, Birendra Chandra Sen, Barindra Kumar Ghose, Ullaskar Dutt, Krishna Jiban Sannyal, Kunja Lall Shaha)." In relation to this class of evidence it has been submitted before us both by Mr. Norton and Mr. Stokes on behalf of the Crown that these general statements are of no great value: and this submission was made by Counsel, not by way of a casual comment, but as a necessary part of their argument for the purpose of discounting the effect of statements made in this general form as to the presence of accused persons at a time when admittedly they were absent. The specific evidence relates to narratives of particular incidents and where it can he credited it is manifestly more satisfactory; but for a circumstance to which I will later refer, it would have possessed very considerable value.

In appreciating this evidence it is necessary to bear in mind that while the incidents described occurred for the most part in April 1908, the evidence as to them was not given until very much later; thus P. W. No. 1 did not depose in the Court of Sessions until the 28^th of October 1908, and P. W. No. 192 not until the 20^th of February 1909. The other watch witnesses were examined in the interval between those two dates. And yet in relating what they profess to have observed these witnesses described with minute detail of time and place the movements of those of the accused watched by them, and this has been done without in any instance refreshing memory. And this becomes the more remarkable if it be borne in mind that these witnesses repudiate the suggestion of any intermediate refreshment of memory by the perusal of notes.

I may illustrate what I say by a reference to the evidence of Inspector Purna Chandra Biswas, the officer authorized by the Local Government to prefer the complaint in this case. Not only did he himself watch, but reports were made to him by other watching witnesses, and his evidence has been directed not only towards describing what he himself observed, but also towards corroborating under section 157 of the Evidence Act, the evidence of the Witnesses who brought reports to him. Now this Inspector in the course of his evidence purports to give the details of what had been reported to him. Thus while giving evidence on the 31^st of October 1908, he deposes to no less than 30 separate reports received by him between the 8^th and the 28^th of April from different officers or spies.

These reports, moreover, were not by any means simple affairs;

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by way of example I may cite the 1nspector’s description of a report made to him on the 21^st April in his own words.

"On 21^st April I got a report from Sarat Chandra Palit and Sarat Chanda Dass that two men came to 38-4 Raja Naba Kissen’s street with a cart; they brought out 4 tin portmanteaus, 2 bags, a wooden case, and 2 bundles, they loaded the cart, and one of the men took it to 15 Gopi Mohan Dutt’s Lane; three men came out from No. 15 and took the goods inside. No names were then mentioned to me. That day Sarat Chandra. Palit and Sarat Chandra Dass took me at about 8 or 8 -30 P. M. to No. I5. Siba Kali Das gave me a report that day that he had followed one of the two men who had brought the cart from 3S-4. to 59, Paddopukhar Road, Bhowanipore, and from there to 30-2, Harrison Road, and then to 44-3 Harrison Road and then he drove to Maniktolla Bridge and then walked into the garden. 59, Paddopukur Road belongs to two High Court Vakils, Naren and Suren Bose. On 21^st . April, I don’t remember if I got another report. I have heard of Waldie’s shop. That day Satis Chandra Banerjee and Suresh Chandra Ghose reported to me that they had seen two men come out of the garden : they took tram at Hedua-talao and went to China Bazar; purchased a big bottle of colourless liquid from D. Waldie & Co., and two big enamelled cups, from a shop in China Bazar and also something from Ghose & Co.’s Pharmacy in front of the Oxford Mission. Then they went back to the garden." In reference to this evidence, the Inspector has stated "I have read my deposition in the Court of the Magistrate, not lately; I read it when I gave it. I made notes during the course of my investigation, they are in the office. I have not read them lately: All I have deposited to-day is from memory."

Mr. Norton has frankly stated that he could not bring himself to believe that the witnesses had not, before coming to Court, looked at the reports for the purpose of refreshing memory, but he contended that although the witnesses did not tell the truth in this respect, it did not follow that they were not speaking the truth on other matters. This is a legitimate contention, but, at the same time, I think it is much to be regretted that any evidence should be given which Counsel for the Crown feels constrained to describe as not true.

It would be profitless to speculate why the reports were not honestly used for the purpose of refreshing memory in Court, but this is certain that the course adopted not merely gives rise to some sense of suspicion, but has the more serious consequence of depriving the evidence given of the added value it would have possessed had it been justified by reference to contemporaneous reports or diaries. In the Court of Sessions there appears to have

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been a complete misconception as to the true legal character of these reports or diaries ; for it was assumed that they came within i the ambit of section 172 of the Criminal Procedure Code. But they clearly did not, for at the time when they were written there was no investigation under Chapter XIV of the Code. I am therefore of opinion that an error has been committed in reference to the exclusion and use of these documents.

For the defence it has been suggested that no reliance can be placed on any part of the evidence given by the watch witnesses, and that it probably was built up after the event on the foundation afforded by the confessions. But with this I do not agree: I hold that there was a system of watching as declared by the prosecution, and this is confirmed by the fact proved to my satisfaction that premises were hired to enable the watch witnesses to carry on their work, and by other matters which it would be premature to indicate now, but will appear in a later part of this judgment. In fact I am convinced that, though as to particulars there may be ground for doubt and even disbelief, still in its broad features the case is a genuine and true one, and in no sense concocted by the police authorities who have conducted this complicated investigation with considerable credit to themselves. In this connection I desire to refer especially to Inspector Shamsul Alum whose work has come more directly under our notice as he has been present in this Court during the hearing of this appeal. His industry and perseverance, as for instance in his solution of the cryptogram, to which I shall later refer, are deserving of great commendation and he evidently has spared no effort in mastering the details of this case. I am glad to have this opportunity of expressing my appreciation of the assistance he has rendered. .

At the same time it has to be recognised that what has been said by the watch witnesses cannot be accepted without careful sifting and consideration. All the watch witnesses are not of the same reputation. , Thus Sarat Chandra Dass who describes himself as an eating-house-keeper, and as being in police employ, was mixed up in a forgery case in a manner that does not inspire confidence, and we find his evidence on occasions discarded . by the Sessions Judge. So again Siva Kali Das, the police in- former, is not a witness on whom much reliance can be placed.

The remaining watch witnesses are officers in the Criminal Intelligence Department and the criticism directed against them does not rest on disrepute, but on the intrinsic character of their evidence. Thus the Sessions Judge says of Sub-Inspector Suresh Chandra Ghose that "his identification generally has been on a liberal scale," that Chandi Charan "gave his evidence in . rather a reckless manner ............... he frequently answered questions

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apparently without stopping to think and sometimes answered questions which he was not asked" and that "Chandi, Suresh and Satish have made mistakes in identification?

And before us it has been made clear that witnesses have stated that they saw accused persons at times and places when they could not have been there. Thus I am convinced that Bolai Chaud Ganguli did not see Abinash at Sealdah on April 12^th , that Sishir was not seen at the garden by Satish between the 20^th and the 27^th of April, or by Suresh between the 19^th and 26^th April, and that Biren was not seen at the garden by Suresh and Satish. This is all that need be said by way of general introduction to the evidence of the watch witnesses, and enough has been shown to justify caution in accepting it as a basis for conviction.

In connection with these witnesses an argument has been advanced by the Counsel for the Crown, and I have noticed the same argument in other cases, that if a particular incident to which they may depose is not believed, then there must be perjury. In Reg v. Puddick 4 F. and F. 497, a similar argument elicited a protest from the Bench and its fallacy was exposed by pointing out in effect that all that an acquittal would imply would be that the Court was not satisfied beyond all reasonable doubt that the offence had been committed.

Next Mr. Das has attacked the searches and has urged that even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On this assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded. As Jimuta Vahana with his shrewd commonsense observes "a fact cannot be altered by 100 texts," and as his commentator quaintly remarks, "If a Brahmana be slain, the precept "slay not a Brahmana’ does not annul the murder." But in the absence of the precautions designed by the legislature lends support to the argument that the alleged discovery should be carefully scrutinized. In this ease there do seem to have been some irregularities ; in the case of some searches there were not the two witnesses directed by the Code, while in the case of others it is at least problematical whether the witnesses called in, comply with the statutory test of being "respectable inhabitants of the locality."

But it is the searches "at the garden that have been most vigorously attacked. The first of these was on the 2^nd May, and was conducted by several Police officers. The search witnesses

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were three, Sheikh Wazir, Sheikh Monglu and Sheikh Mengree; but they were not called as witnesses at the trial. The Code requires that a list of all things seized in the course of the search and of the places in which they are respectively found shall be prepared by the officer or other person making the search and signed by the witnesses, and a copy of the list prepared signed by the witnesses is to delivered to the occupant at his request (section 103). Lists were prepared in consequence of this search, but one of the questions is whether, as the prosecution allege, they were prepared at the time in the garden, or as the defence contend, subsequently at the Police Station. Notwithstanding the sworn testimony, 1 am doubtful whether the search lists were completed at the garden. The alteration on the 5 th sheet of the hours of search hardly agrees with the theory that it was a contemporaneous record : the presence of 14 names at the head of the search list instead of 18 is to some extent remarkable: and the appearance on documents found at 15, Gopi Mohan Dutt’s Lane of the signature of garden witnesses is calculated to reuse doubt and certainly points to some degree of confusion at the Park Street Police Station. On the whole I am not convinced that the search list was completed at the garden. But this is more a matter of form than of substance, except so far as it necessitates careful enquiry as to whether the articles and documents shown in the garden list were in fact found in the garden. And in the view I take this is only of importance in reference to item 84, for in view of Arabindo Ghose's acquittal the alleged discovery of Ex. 1128 at the garden loses its significance.

Item 84 on sheet No. 7 calls for notice. It will be seen that the words and books in Bengali on modern warfare and pictures and papers " have the appearance of being inserted after the next succeeding item had been written. Coupled witl1 this we have the fact that the certified copy of the search list furnished to the defence on the 9^th of July does not contain these words. As against this, however, the search list filed as an exhibit in the Court of the Committing Magistrate on the 18^th of May contains these words, and I certainly am not prepared to hold that they were added after the exhibit was filed. But unless they were so added the omission from the defendants’ copy shows nothing.

The books included in item 84 are marked as Exhibit 144, and Inspector Frizzoni, who conducted the garden search, deposes that he found them at the garden in a broken tin box, Exhibit 143. '1`his is not a point on which he is likely to have made a mistake, as these books are 394 in number, and he does not seem to me to have been shaken in cross examination on this point.

The searches at the other places have also been vigorously

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criticised, but after careful consideration I do not think it would be profitable to discuss these criticisms at this stage: should it be necessary I will notice them hereafter in connection with any document or article to which they may be applicable. The many searches that have been made not only in connection with this case, but on other occasions also, have placed within the reach of the prosecution a mass of documents. And of these a great number have been made exhibits in this case.

As far as I can judge they were in the first instance brought on to the record by virtue of their having been discovered at a search, and not because they had been proved against the accused generally, or any one of the accused by any of the acknowledged methods of proof. This fact, however, has not been kept in view, with the result that there has been a certain degree of confusion, which has become the greater from the remarkable lack of discrimination with which these documents were tendered by the prosecution, and the use that Counsel for the Crown has striven to make of them.

In dealing with documentary evidence it is necessary to keep carefully in view the use to which it can legitimately be put, having regard to the proof by which it is brought on to the record. A document may, for example, be used in evidence for the purpose of affecting some one with knowledge of its contents regardless of whether those contents are true or false, or for the purpose of proving the truth of that which it contains : but from the fact that a. document may be relevant for the first purpose, it by no means follows that it is relevant also for the second.

This distinction is so obvious that I should not have deemed it necessary to refer to it, but for the course this case has taken before us. Excluding for the moment exceptional cases, there can be no doubt as to the general rule that the fact that a statement is made in a private document is not by itself proof of its truth or any more admissible to prove the truth of the matter stated than an oral statement by the same person would be. Writing does not by itself give any greater sanction to the statement, or take the place of the sanction imposed by law. But at the same time a statement whether oral or written can be used against a person to prove the truth of the matter stated, if, as against him, it can be regarded as an admission. But the facts must be proved by virtue of which it can be treated as admission.

If the admission was actually written by him, and it is on this ground that it is sought to be used, then the fact that it was so written must be proved by those methods which the law allows.

The ordinary methods of proving handwritings are (1) by calling as a witness a person, who wrote the document or saw

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it written, or who is qualified to express an opinion as to the hand- writing by virtue of section 47 of the Evidence Act, (2) by a comparison of handwriting as provided in section 73 of the Evidence Act, and (3) by the admission of the person against whom the document is tendered. A document does not prove itself, nor is an unproved signature proof of its having been written by the person whose signature it purports to bear.

In applying the provisions of section 73 of the Evidence Act it is important not to lose sight of its exact terms.. It does not sanction the comparison of any two documents, but requires that the writing with which the comparison is to be made, or the standard writing as it ma be called, shall be admitted or proved to have been written by the person to whom it is attributed, and next the writing to be compared with the standard, or in other words the disputed writing must purport to have been written by the same person, that is to say the writing itself must state or indicate that it was written by that person.

The section does not specifically state by whom the comparison may be made, though the second paragraph of the section dealing with a related subject expressly provides by way of contrast that in that particular connection the Court may make the comparison.

In this case we are told that a comparison was made by the learned Sessions Judge out of Court after the conclusion of the arguments, but whether with the assistance of the Assessors or not does not appear. If there was no submission of this question to the Assessors, it may be a question how far this was not an irregularity. The result has been that on a comparison so conducted the learned Sessions Judge without in all cases observing the precise terms of the section has held certain writings to be those of one or other of the accused without having invited or heard arguments from their Counsel on this point. I cannot think this was a proper course to pursue : a comparison of hand- writing is at all times as a mode of proof hazardous and inconclusive, and especially when it is made by one not conversant · with the subject and without such guidance as might be derived from the arguments of Counsel and the evidence of experts. In Sreemutty Phoodee Bihee vs. Govind Chandra Roy, 22, W. R. 272, it was said by the Court that "a comparison of signature is a mode of ascertaining the truth which ought to be used with very great care and caution."

In this case no expert has been called to assist the Court, and not because no expert was available: there is, it is well known, a Government expert as to hand writing and some of the documents in this case bear a stamp which shows that they

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have been submitted to them. It is true that the opinions of experts on handwriting meet with their full share of disparagement at times, but at any rate there is this use in their employment that the appearances on which they rely are disclosed, and can thus be supported or criticised, whereas an opinion formed by a Judge in the privacy of his own room is subject to no such check. And that the aid of an expert may be of value was clearly the opinion of so distinguished a Judge as Mr. Justice Blackburn who in R. vs. Harvey 11.Cox 546 refused to allow a comparison to be made without the help of experts.

But whether there has been irregularity or not is of no great moment in the view I take, for after making such comparison as the section permits I am unable to hold that in any case hand- writing has been proved by this method.

But to be an admission it is not necessary that a document should have been written by the person against whom it is sought to be used: it is sufficient if it be proved that the document has been in his possession, and that his conduct in reference to it has been such as to create an inference that he was aware of its contents and admitted their accuracy. Unless this be done the document cannot be used as proof of its contents.

What conduct would properly give rise to such an inference must necessarily depend on the circumstances of each case. Mere possession of letters would not ordinarily go for much and the value of such possession must largely depend upon whether it can be shown that their contents have been recognised and adopted by the replies they may have elicited or the conduct they may have inspired. If no such consequence can be traced their value must necessarily be materially discounted.

Considerable use has been made of the provisions of section 10 of the Evidence Act in the present case, and it is therefore important to observe that its operation is strictly conditional upon there being reasonable ground to believe that two or more persons have conspired together to commit an offence. Regard must also be had to the limits within which this class of evidence can be used.

Section 30 of the Evidence Act may also here be noticed as of cognate bearing, for by its terms, the Court "may take into consideration" the confession of one of several persons jointly tried for the same offence against his co-accused as well as against himself. The confession is not evidence against the co-accused in the sense that a conviction on that alone could be supported; it can only be taken into consideration, that is to say, it can lend assurance to other evidence. The confessions in this case have been largely employed for this purpose.

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The application of these general remarks will become apparent when I take up the individual cases to which tl1ey are relevant, and at this stage no more need be

said in this connection.

Among the documents used as evidence in this case are a number of copies of the Jugantar, the contention of the prosecution being that this newspaper was, as it has been described, a limb of the conspiracy. I now propose to examine this contention.

The Jugantar is proved to have been started in March 1906, its offices then being at 27, Kenai Lal Dhar’s Lane. Before the end of that year its offices had been removed to 41, Champatola 1st Lane, and they still continued to be there on the 1^st July 1907, when the premises were searched.

On the occasion of that search amongst those seen there were the appellants Abinash, Sailendra, and Upen and possibly also Bibhuti and Sudhir, and there was also found a proof sheet and the manuscript of the Bartaman Rananiti and some proof sheets of the Mukti Kon Pathe, two publications with which I shall deal more in detail when I come to the case of Abinash. In addition to this we find association with the Jugantar admitted by several of the accused in their confessions. Baren, for instance, in his confession, after stating that he began to collect the band which had been arrested says "with my friend Abinash Bhattacharyya (now under arrest) and Bhupendra Nath Dutt (now in jail) I started the Jugantar paper. We managed it for nearly 1½ years and then gave it over to the present Managers” Exhibit 1272 confirms the truth of his admission of connection with the Jugantar. Upendra Nath Banerjee declares that he was a regular contributor to the Jugantar. Sudhir states that he assisted in publishing the paper. Hrishikesh Kanjilal says that Upen showed him a few copies of the Jugantar and he studied them, and then he describes how he went to the Jugantar Office and was introduced to Baren by Upen, and there after he became friends with Baren. And Ullaskar Dutta in explanation of the circumstances under which he joined the Society declared, “It had. been announced in the Jugantar that a Secret Society would be started, and I had a natural inclination to join, so I got introduced by Barendra."

Turning to the articles of the: Jugantar it is unnecessary that I should go in detail through them; a large number of them have been read to us by Mr. Norton, and some of the more important have been discussed in this judgment by the learned Sessions Judge. It will be enough that I should state my view of them, and I cannot do so more effectually than by adopting the language of the Sessions Judge who says, "they exhibit a burning hatred of the British race, they breathe revolution in

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every line, they point out how revolution is to be effected, no calumny and no article is left out which is likely to instil the people of the country with the same idea or to catch the impressionable minds of youth." The leading idea and objective is complete independence, and this is to be effected by preparation ultimately culminating in the expulsion by force of arms, if necessary, of the British from India.

We thus find a close and more than accidental correspondence between the propagandism of the Jugantar and the doctrines, objects and methods that were taught and practised in the garden.

And when regard is had to all these circumstances, the identity of workers and the consonance of teaching cannot be mere coincidence, and, in my opinion, the only just inference to be drawn is that the Juguntar was a branch of the conspiracy into which we are inquiring.

That the promoters of the paper had not miscalculated its value is apparent not only from the confessions from which I have cited, but also from other materials, and perhaps no more striking illustration of its pernicious and insidious influence can be found than in the postcard, Exhibit 1079, addressed to Abinash and found in the course of the search at 4, Raja’s Lane. It runs as follows :

"Bande Mataram,
Mirasi, 7^th September 1907.

"Sir,

From your advertisement, articles, and your bold writings, I understand that he alone, who has the subversion of the Firingee (British) Government at heart, should by all means read the Jugantar. I, a schoolboy, living in a hilly country don’t feel any oppression of the Firingees, and I give way before people for want of information. I am, therefore, in need of Jugantar. For it acquaints us to a great extent with the `devices of driving away the Firingees and also make us alive to wrongs. I am extremely in straitened circumstances, hardly able to procure one meal a day; nevertheless my desire for newspaper reading is extremely strong. Hence I approach you as a beggar. Ah ! do not disappoint such an eager hope of mine. Please grant my prayer. I shall pay the price when I shall have the means. Please ever oblige me by sending a sample copy with an expression of your intention. I hope you will favour me by enlisting me as a subscriber. Further, please don’t fail to send a sample copy.

Submitted by,

Sree Debendra Chandra Bhattacharjee,

P. O. Muchikandi, Mirasi, Sylhet."

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I cannot pass from a consideration of the Jugantar articles without commending the skill and spirit. with which they have been translated from Bengali into English for the purpose of being used in Court. As far as I have been able to judge the translations have been true to the spirit of the original, an have at the same time faithfully expressed all that it said and implied in admirable English.

I have already dealt with the legal objections to the charges, and it will now be convenient that I should discuss generally, and not in relation to any individual case, the legal aspect of these charges. The are all based on sections 121, 121A, and 122 of the Indian Penal gods.

Section 121 is in these terms: - ‘Whoever wages war against the Queen, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or transportation for life, and shall forfeit all his property."

It is argued on behalf of the Crown that it was intended by the framers of the Indian Penal Code to reproduce the English Law of Treason in its entirety, that is to say, not only the Statute Law, but also the interpretation placed on it by the cases. But, any one who has studied the history of section 121, which was a part of the Law of the land before its incorporation in the Indian Penal Code, and the literature on the subject, must know that this was not the intention of those who framed the provision.

As in my opinion the first batch of appellants could not legally be convicted o an offence under section 21, and, as in the view I take of the facts established against the rest, no offence under the section has been established, I think it right to refrain from discussing in detail the meaning of section 121, for in the circumstances the question does not arise; still I consider the view originally taken by the Government that the case did not fall within section 121 was manifestly right, and the change from this view, induced as has been indicated, was mistaken.

So far as conspiracy is charged, the case rests on section 121A., which provides t at, "Whoever within or without British India conspires to commit any of the offences punishable by section 121, or to deprive the Queen of the sovereignty of British India or any part thereof or conspires to overawe, by means of criminal force or of the show of criminal force, the Government of India or any Local Government, shall be punished with transportation for life or any shorter term, or with imprisonment of either description which may extend to ten years."

"Explanation—To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof."

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"A conspiracy," it has been said "consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. The number and the compact give weight and. cause danger." (Mulcahy v Reg. L. B. 3 H. L. p. 317).

One of the Assessors in coming to the conclusion that there was no conspiracy seems to have been influenced by the view that there was not “an immediate purpose," but that the objective was "a far of revolution."

But the question to be determined is whether there was an agreement between two or more of the accused to do all or any of the unlawful acts charged. The fact that the purpose was not immediate, if it be a fact, would only be material in so far as it might bring the matter within the saving operation of section 95 of the Indian Penal Code, but I can find no trace of any suggestion to that effect before the Court of Sessions, and certainly no reference has been made in this Court to that section.

Baren in his confession no doubt speaks of a far off revolution, but then he goes on to say that they wished to be ready for it, and so were collecting weapons in small quantities. Major Black, the Chemical Examiner, says that, taking all the articles he had seen from all the places, he should take the costs to be from Rs. 5,000 to Rs. 6,000, and the overt acts disclosed by the evidence, though not in themselves a waging of war, make it plain that there was no reluctance to use explosives to the peril of human life and for the purposes of assassination. It is therefore impossible to treat the conspiracy charged as childish or negligible: to those who were members of it the movement meant something that was real and earnest, and it does not detract from the quality of the offence that the object in view was not likely to be realized, though this may be relevant to the question of punishment where the offence is established.

Though to establish the charge of conspiracy, there must be agreement, there need not be proof of direct meeting or combination, nor need the parties be brought into each other's presence; the agreement may be inferred from circumstances raising a presumption of a common concerted plan to carry out the unlawful design.

So again it is not necessary that all should have joined in the scheme from the first : those who come in at a later stage are equally guilty, provided the agreement be proved. And this

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leads me to notice an argument advanced on behalf of the defence that all charged as conspirators must be convicted or all acquitted. The Queen vs. Manning, L. R. 12. Q. B. D. 241 was cited as an authority for this proposition :— but that case turns on the fact that only two persons were charged, so that both had to be convicted. And this for a very good reason; an agreement implies the concert of at least two persons, so that ex vi termini there cannot be a conspiracy of one. Though this is some what obscured by the line of reasoning in the judgments, the fact is placed beyond doubt by the judgment of Wright J. in the King vs. Plummer, L. R. 1902, 2 K. B. 339.

The objection therefore fails.

Though the appellants have with a few exceptions all been convicted under section 122 as well as under sections 121 and 121 A, it is conceded by Mr. Norton that what is established under section 122 really is apart of, and goes to make up the offence under section 121 A, so that a separate conviction and punishment under section 122 is not sought by the Crown.

Another matter to which I desire to allude is the general character of the evidence. From the nature of the case it is to a large extent circumstantial, and in dealing with it the rules especially applicable must be borne in mind. There is always the danger in a case like the present that conjecture or suspicion may take the place of legal proof, and therefore it is right to recall the warning addressed by Mr. Baron Alderson to the Jury in Reg. v. Hodges 2 Lewes C. C. 227, where he said "the mind was a t to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."

The mass of material that has found its way on to the records in this case, sometimes without a clear perception of the extent to which it was admissible, has made our task peculiarly difficult, and has made it especially incumbent on this Court to realise and keep in mind that the rules of evidence cannot be departed from because there may be a strong moral conviction of guilt (Queen vs. Baiju Choudhury, 25 W. R. Cr. 43); for a Judge "cannot set himself above the law which he has to administer or make it or mould it to suit the exigencies of a particular occasion.” One matter noticeable in the record of the proceedings before the Court of Sessions is the extent to which answers seem to have been elicited from prosecution witnesses

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by leading questions put to them by Counsel for the Crown, and this appears to have been done notwithstanding the objection raised by Counsel for the defence. As I have noticed a similar procedure in other cases, I think it right to draw attention to the law governing this matter. Section 142 of the Evidence Act provides that leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the Court.

It is the Court, and not Counsel for the Crown, who can determine whether leading questions should be permitted, and the responsibility for that permission rests on the Court. Now, not only were objections made by the Counsel at the time, but a petition of objection was filed, and, from the order on its back, it appears that no permission was given by the Court, though the witness "had to be pressed in regard to many points." This in the opinion of the learned Judge did not amount to cross-examination. But the point for decision was whether leading questions were asked, and what is a leading question is defined in section 141 of the Evidence Act, which provides that "any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question." How Mr. Norton can have applied the pressure without the use of leading questions is by no means evident.

I now pass to a consideration of the individual cases and first I will take up that of Baren.

* * * * * * *

After dealing with the case of Barin at great length His Lordship said—The articles and documents found on the occasion of the search, Baren's conduct at the time, his confession, and the evidence I have noticed afford complete proof that he is guilty of the offence with which he is charged under section 121 A, even without relying on the confessions of his co-accused, which we are entitled to take into consideration against him under section 30 of the Evidence Act. Therefore the conviction under Section 121 A must be confirmed.

His Lordship then considered the case of Ullaskar and held ―

In my opinion the evidence clearly establishes that Ullaskar Dutt was a party to the conspiracy, and that he is guilty of an offence under section 121 A of the Indian Penal Code. In dealing with the case of Upendra.—His Lordship held—

On a consideration of the evidence against Upendra Nath Banerjee the conclusion to which I come is that he was a member of the conspiracy and is guilty of the offence charged under section 121 A of the Indian Penal Code.

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. The next case considered was that of Indra Bhushan Roy. His Lordship said—On the matarials furnished by the evidence the conclusion to which I come is that he was a member of the conspiracy and is guilty of an offence under section 121-A of the Indian Penal Code.

In the case of Bibhuty Sarkar he held-—In my opinion there is ample confirmation of Bibhnti’s confession, and having regard to the length of his residence there (garden) and to the prominent part he took, there can I think be no doubt, that he was a member of the conspiracy and guilty of an offence under section 121-A of the Indian Penal Code.

Dealing with the case of Hrishikesh, he said :—

This then is the evidence against Hrishikesh Kanjilal, and I am led by it to the conclusion that this accused, as his confession indicates, was a member of the conspiracy and is guilty of an offence under section 121-A of the Indian Penal Code.

After dealing at great length with the case of Sudhir Sarker he said :—On a consideration of the evidence I hold that Sudhir’s presence at Seal‘s Lodge is established, and also that Seal’s Lodge was intimately connected with the head-quarters of the conspiracy in Calcutta. I am further convinced that Sudhir was a frequenter of the garden, and the conclusion to which I come is that he is proved to have been guilty of an offence under Section 121A of the Indian Penal Code.

About Hem Das His Lordship’s conclusion was .—Though Hem Chandra Das throughout acted with the greatest caution, still the evidence against him leaves absolutely no doubt on my mind that he was a member of the conspiracy, and I therefore hold him guilty under section 121-A. of the Indian Penal Code.

About Poresh Moulik he said "the evidence justifies the conclusion that he was a member of the conspiracy and I therefore hold him to be guilty under section 121A. of the Indian Penal Code.”

About Sishir Ghosh he said "to my mind the evidence sufficiently establishes his membership of the conspiracy. And I therefore hold him to have been guilty of an offence under Section 121-A. of the Indian Penal Code.”

About Nirapada Ghosh he said "the evidence against Nirapada, so far as it rests on documents is meagre, but coupling his undoubted presence at 15 Gopi Mohan Dutt’s Lane, with the oral evidence which clearly establishes his connection with the garden, I am of opinion that the charge against him under section 121-A. is established. It may be that he took a subsidiary part but that affects the question of punishment rather than guilt and will be taken into consideration in that connection.

Page 382

About Abinash he said—the conclusion to which it leads me is that his connection with the Jugantar, the Mukti kon Pathe, and the Rananiti is established, as also his project of conducting the Navasakti on the lines of the Jugantar, a scheme that came to nothing in consequence of his arrest and the break up of the conspiracy: that there was intimacy and co-operation between Baren and Abinash from an early stage, possibly from the very commencement of the conspiracy; that Abinash visited the garden and was visited by members of the conspiracy at No. 4 Harrison Road; and that he himself did conspire within the meaning of section 121-A., of the Indian Penal Code and has been guilty of an offence under that section.

About Balkrishna HariKane he said—The conclusion to which I come is that Balkrishna’s guilt is not established, and that he should in my opinion be acquitted and released.

About Krishnajiban Sanyal he said—This then is the whole of the evidence against Krishna. His statement appears to me to be a full and complete disclosure of his connection with the Calcutta headquarters, made without any reserve and it is conceded by the crown on the facts set out there alone the conviction could not be upheld. Then what is there beyond the facts set out in the statement ? Nothing as it seems to me but the mistaken interpretation of the unproved letter Exhibit 924, and the evidence of Kriahna's presence at No. 15, Gopi Mohan Dutt’s Lane, on which the learned Judge founds the inference, resting on nothing in the evidence, that Krishna received these instructions in the use of explosives. I have already given my reasons for holding that it would not be safe to act on this evidence.

This (in my opinion) is far too slender a basis on which to sustain the conviction of this lad, and I would therefore set aside his conviction and sentence and direct his release.

Both the brothers Sushil and Birendra Sen as well as Sailendra Bose and Indra Nundy were held not guilty.

Sentences.

The result then is that the convictions and sentences against all the accused under sections 121 and 122 must be set aside, but, as against Barindra Kumar Ghosh, Ullaskar Dutt, Upendra Nath Banerjee, Indu Bhushan Roy, Bibhuti Bhusan Sircar, Hrishikesh Kanjilal, Sudhir Kumar Sircar, Hem Chandra Das, Pares Chandra Maulik, Sisir Kumar Ghose, Nirapada Roy and Abinash Chandra Bhattacharjee, the convictions under section 121A of the Indian Penal Code should (in my opinion) be confirmed.

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The question of punishment is one of considerable difficulty; those who have been convicted are not ordinary criminals; they are for the most part men of education, of strong religious instincts, and in some cases of considerable force of character.

At the same time they have been convicted of one of the most serious offences against the state, in that they have conspired to wage war against the King, and the punishment must be in proportion to the gravity of the offence. For the purpose of punishment Barindra Kumar Ghosh, Ullaskar Dutt, Upendra Nath Banarjee and Hem Chandra Das may properly be grouped together, for they were the leaders of the society and Ulaskar Dutt and Hem Chandra Das actually manufactured bombs that were used. We sentence each of them to transportation for life. The next class includes Bibhuty Bhusan Sircar, Hrishikesh Kanjilal and Indu Bhnsan Roy, whose prominence in the society is shown by the part they took in one or other of the the attempted outrages disclosed by the evidence in the case. We sentence each of them to transportation: for a term of ten years. ‘

We sentence each of the following, e. i, Sudhir Kumar Sircar, Pares Chandra Maulik, Abinash Chandra Bhattacharjee to transportation for a term of seven years. We sentence Sisir Kumar Ghose and Nirapada Roy respectively to five years rigorous imprisonment.

Mr, Justice Carnduff and I are divided in opinion as to the conviction of Krishna Jiban Sanyal, Sushil Kumar Sen, Birendra Chandra Sen, Sailendra Nath Bose, and Indra Nath Nandi, so the case with our opinions thereon must be laid before another Judge of the Court as provided in Section 429 of the Criminal Procedure.

Again I wish to express my sense of obligation to all those who have assisted in this difficult and complex enquiry. Though against several of the accused the convictions under Section 121 A of the Indian Penal Code have been upheld ; it is a satisfaction to feel that those accused have been represented before us by Counsel and pleaders who have spared no effort of industry on their behalf, and have brought to our notice everything that could be legitimately argued for their clients’ advantage : and I desire in particular to place on record my high appreciation of the manner in which the case was presented to this Court by their leading Advocate Mr. C. R. Das.

L. JENKINS.

Carndufff, J.—I agree with most, but, unfortunately, not with all, of the conclusions arrived at by my lord the Chief Justice on this appeal. Our difference of opinion is, in effect, limited to the

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question whether the guilt of a few of the appellants has been proved or not. But there are some remarks which I feel called upon to make, as briefly as may be, on my own account, both on the case as it presents itself to me as a whole, and on certain points connected with it, although we are in substantial agreement regarding them.

* * * * * *

But, when one is at the outset strongly impressed with the truth of a case as a whole, it is obviously all the more necessary to be on one’s guard against approaching with prejudice or unconscious bias the respective cases of the individuals concerned ; and, as the learned Chief Justice has put it, one must be very careful not to allow conjecture or suspicion to take the place of legal proof. All that his Lordship has observed on this point, and as regards the necessity for adhering to the rules of evidence throughout, I hope and believe I appreciate, and with it I cannot but concur. But "legal proof" is, as it seems to me, neither more nor less than what is indicated by the definition of the word "proved," which is to be found in section 3 of the Indian Evidence Act, 1872 ; that is to say, "a fact is said to be ‘proved’ when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." When the section speaks of the "matters before" the Court, it means, of course, the matters properly before it: whence it follows that, if and when irrelevant matter has been admitted in evidence, one must be careful—I would here refer to the provisions of section 167 of the Evidence Act—to exclude it from consideration and refuse to be in any degree influenced by it. But, given evidence on the record which is admissible, and excluding from consideration any that may have been wrongly admitted, I doubt whether it is possible to draw a distinction between " legal proof " and "moral conviction."

I will now address myself to the attacks that have been made generally on the evidence for the prosecution, which may be described as consisting in the main of—

(1) the depositions of the shadowing witnesses :

(2) the Endings at the various searches ; and

(3) the confessions and statements of certain of the appellants.

As regards the shadowing witnesses, we are asked to discard the evidence of the police spies in toto on the ground that their antecedents are disreputable and there are discrepancies in their statements. The testimony of the detective police-officers we are similarly urged to reject, because there are in it also inconsistencies

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and assertions at variance with some apparent facts, and further because it is impossible to credit the explanation that the deponents were speaking from memory and had neither kept, nor referred to, any notes. We are asked to treat the findings at the various searches as spurious because of some irregularities connected with the preparation of the search-lists, a few mistakes made in connection with the custody of the different exhibits at the police-office, the unreliability of the search-witnesses, and certain points in some of the exhibits themselves which are said to be calculated to engender suspicion and raise doubt. I am unable to accept or act upon any of these suggestions.

That the evidence of police-spies must be listened to with caution is all that need be conceded with regard to the reflections cast on the characters of those employed in this case. But that their services were actually utilised, and that they were really doing something in the way of honest work, is abundantly clear. The discoveries made and the general results prove this ; and there are incidents which speak for themselves-- such as those connected with the tracing of the enamelled bowls found in the garden to the shop at which some of the appellants were seen to have purchased such vessels, the rent receipt granted by the appellant Hem Chandra Das to the spy Shiba Kali Das for a room in the former’s house and produced by the latter, and the acknowledgment given by the same spy to the same appellant for the refund of the same rent, a document which was discovered at the sea1·ch of the house of Hem Chandra Das and initialled by him then and there. And, as to the flaws in the police evidence, these seem to me to be remarkably few and to sink into insignificance when the broad facts and the circumstances of the case are recalled. It is― and Mr. Norton has conceded that it is—clear that the statements made by the police-officers to the effect that they have been trusting to their memories alone, and not to contemporaneous writings at all, are not true; but I believe that they are by no means as wide of the mark as Mr. Das, on the other hand, would have us conclude. The officers concerned were doubtless exaggerating; but I can understand― although I deplore rather than condone—their having done so through anxiety to avoid any possible risk of their notes in an exceptional case such as this, where informers were concerned, being called for and their contents disclosed. It may be conceded, too, that there must have been some aids to memory and some means of refreshing it from time to time. But that there was very little in the way of writing beyond the so-called "diary’ in the hands of the officer in immediate charge of the proceedings, I have no difficulty in believing. Nay more, I should myself be surprised to learn that, in a delicate .and hazardous

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enquiry such as that before us, extraordinary methods were not adopted and extraordinary precautions were not taken; and the first departures from routine that suggest themselves to my intelligence in a matter where extreme secrecy at every step is essential, are recourse to verbal communications, instead of written reports and the substitution of the security afforded by memorising for the danger involved in keeping notes. That a record of the course of the investigation was maintained by the responsible officer for the time being in charge is not denied and that that record was made use of no one can doubt ; but that it was most jealously guarded and that the keeping of subsidiary records was discouraged, if not expressly forbidden, I should be prepared to take for granted. And of wonderful feats of memory on the part of witnesses not a few instances are within my personal experience.

Criminal Appeal No. 426 of 1907

I recollect, and have recently referred to the record in this Court of a case, tried in Chota Nagpore not long ago, in which an entirely illiterate Dusadh, examined as an approver, gave from memory, over and over again and most consistently, minute details regarding some 7-L distinct burglaries and kindred offences committed in the course of 13 months at diverse places in 3 different districts by various members of a large gang to which he and the I5 accused tried on a charge under section 401 of the Indian Penal Code had belonged. I have not infrequently known an investigating police-officer refrain from refreshing his memory in Court from, and so placing within the reach of the defence, his confidential diary and rough record of the examination of witnesses on the spot, and yet stand successfully a severe cross-examination as to distances, and dates, and times, and previous statements connected with a complicated case. After all, the officers employed in this instance must have been specially selected ; they were doubtless relieved of all other work and warned to devote their attention and energies exclusively to the arduous and dangerous task imposed upon them; and the area over which their memories had to range, was by no mean extensive. I believe—and, as I have already, said, I have no difficulty in believing—that they did practically without notes and relied upon their memories, refreshed most probably by references, through the officer in charge, to the so-called " diary " and verbal rehearsals. If that was the position, then it is inevitable that they should make some mistakes and contradict each other from time to time. But the more I peruse the record and the more I consider the circumstances, the more convinced am I that their evidence is in the main true; that is, in other words, that they did see the persons they name visiting the places they specify, meeting the associates they mention, and taking part in the incidents they describe. Mr. Das has urged before us on appeal that the whole of the shadowing and tracking

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is a fiction, that the police had no definite information worth the name to act upon, and that nothing real was being done all the time: whence it follows that it was by some unexplained and inexplicable stroke of good fortune that, when the police had to move immediately after the Mozafferpore outrage, they hit upon the garden, not to mention the other places simultaneously raided, and succeeded in laying their hands upon a number of unfortunate persons, collected together amid at first sight somewhat suspicious surroundings, who had been vaguely suspected of cherishing advanced ideas and aspirations. Then, but not till then, Mr. Das would have us believe, was the whole fabric of this case built up, piece by piece, to fit in with, support, and, where necessary, amplify, the damaging statements somehow or other obtained from the persons arrested. The shadowing witnesses were then taught to tell their stories accordingly and with special reference to points not fully disclosed and persons not sufficiently implicated by the confessions. Incriminating documents and questionable articles, prepared to order, were introduced ex post facto into appropriate places and produced there from as damning pieces of circumstantial evidence. Et sic passim. The argument is hardly worth meeting in detail, and a few observations in connection with it will suffice. It is certain that the enquiry and the proceedings throughout must have been directly guided by the highest officers of the Criminal Investigation and Police Departments, and Mr. Das’s theories involve connivance at least on their part, which I regard as impossible. The confessions followed, and, therefore, could have had nothing to do with, the discovery of the principal places which were successfully raided on the 2^nd May ; and, as Seal’s Lodge was not alluded to in any of them, its discover must be otherwise explained. That good and accurate information had been obtained from some person or persons who knew only too well what was on foot, is conclusively proved by the action taken on the warning as to the proposed attempt on Mr. Kingsford’s life ; for, although that action failed to save Mrs. and Miss Kennedy, it was sufficient to cause the suicide of one of the assassins and lead t the speedy arrest of the other. Why, then, should it be doubted that the police had not equally definite information as to the other individuals and places towards whom and which they assert that their attention was directed ? Why should it be supposed that they had such information and did not take advantage of it ? And why should we believe, merely because it is suggested by the defence, that they were not endeavouring to bring to justice the guilty, of whom there must have been many, but were striving to make evidence against innocent, and, in some cases, entirely insignificant, persons ? The very nature of the evidence produced by the prosecution, and the want of discrimination with which it has been produced, bespeak its

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genuineness. If the watch-witnesses were lying, surely they would have lied with greater effect and more to the purpose. It was the case for the prosecution that the arch-conspirator and protagonist was Mr. Arabinda Ghose, and Mr. Das has had occasion, again and again, to press that fact and Mr. Ghose’s acquittal upon us. And yet not a single watch-witness has attempted to connect that gentleman physically with the garden, although it was the head-quarters of the conspiracy and he was admittedly a part owner. Why ? The only fair and reasonable answer surely is that they did not do so because they could not, having, as a matter of fact, never seen him in it : and, if so, why should they be disbelieved when they swear that they saw other comparatively unimportant persons there ? Then let us survey the exhibits, and, in particular, the documents. Primâ facie, they certainly do not look like manufactured evidence, for manufactured evidence would have been given much more directly probative value. And the more they are scrutinised, the more certain does it become that they could not have been concocted; for, all along the line, one finds connecting links and indications such as render the theory of ingenious concoction preposterous. Is it, for example, not going too far to ask us to believe that the whole of that elaborate adjunct of the case for the prosecution which is connected with Seal’s Lodge at Baidyanath, was evolved from nothing but the imagination merely in order that there should be found there a few pieces of tin, which might conceivably have been used in connection with the manufacture of explosives, an English chemist’s label similar to labels unearthed at 15 Gopi Mohan Dutt’s Lane and 13-L Harrison Road, and certain documents, innocent in themselves, but capable of lending support to inferences, sometimes far-fetched, of the prosecution ? Is it reasonable to suggest that evidence of the kind afforded by documents such as those alleged to have been found at the searches were not so found and must have been fabricated by astutely dishonest police-officers? Let us take, for example, Exhibit 76, the red note-book, produced from the garden, which appears to be the appellant Upendra Nath Banerjee’s, and is, perhaps, the most prominent exhibit in the case. The entries contained in it are vague and disjointed, and the most one can do is to conjecture, in the light of other facts, what they may mean. Persons are, as a rule, indicated by their initials or first names, and, although in many an instance the cap fits the head of one of the appellants, the evidence so afforded is not the sort of evidence which a forger would produce. In the same book there is noted the name and address in full of one "Raj Kishore Mookerjee, 3 Bolaram Bose’s l^st Lane, Bhawanipore”. Now it is not desired to implicate anyone of that name or answering that description, and it is only in the following way that any significance can be attached to the note. Among a number of names and addresses mixed up

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with explosive formulae Exhibit 667, a note-book found simultaneously at 134 Harrison Road, there is a reference to the same Kishore Mookerjee, while in Exhibit 382, a list discovered, also simultaneously, at 15 Gopi Mohan Dutt’s Lane, the identical name and address again appear. Is it at all reasonable to suggest that these were manufactured ? Next let us take Exhibit 239, a note-book (found in the garden) which is full of cryptic entries attributed to Barendra and is second in prominence and importance only to Exhibit 76. In this there are, first, a number of initials and a distribution of these into "circles." Then comes a succession of notes, the meaning of which only the .writer and those in his confidence could fully disclose, but we can merely surmise. These, as has already appeared, turn out to be by no means valueless; but the point which I am now making, is that it is inconceivable that such documents can be anything but genuine. In the same notebook, we find the sentence "Deodhar’s and Athavel’s address from S. G." . Who Deodhar and Athavel are we do not know, and the case in no way rests upon, or is helped by, the connection with the conspiracy charged of any persons bearing those names. But it is nevertheless not without significance that in Exhibit 667, produced from 134 Harrison Road, there are entered the full names and addresses of "S. C. Athavale" and "A. B. Deodhar," while in Exhibit 798, postcard found in the appellant Hrishikesh Kanjilal’s house near Serampore, someone, signing himself "R," writes from Bombay to Hrishikesh about a "Mr. Deodhar” preaching "the new cult,” and Exhibit 382, the note-book kept at 15 Gopi Mohan Dutt’s Lane, likewise contains the names and addresses of "Deodhar" and "Athavale." In Exhibit 239 again we find the following instructions noted for the 11th January and onwards :― "U. D. to be kept here. H. D. to be looked up. ' They spend a week together. Mss. from H. D." In Exhibit 382, the note-book found at N0. 15, are two references to "H. D.” each with an address which renders it certain that the appellant Hem Chandra Das is the person designated. Now, that Hem Chandra Das went to Paris to advance "the cause" is proved, and it appears that he returned to Bengal in December, 1907, or January, 1908. "U. D." are the initials of Ullaskar Dutt, and the appellant of that name had acquired some knowledge of explosives ; but his was aprentice hand, incapable, as the previous abortive attempts on the railway tend to show, of preparing an effective bomb. In the garden was found the manuscript of the cyclostyle manual intended for the edification of "a revolutionary peop1e," and it bears signs of a French origin. In these circumstances, it is impossible to resist the inference that the result of "U. D.’s" and "H. D.’s" week together was the production of the bomb which killed the Kennedys on the 30^th April, 1908, and for which the appellant Barendra has in his confession given the

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credit to Hem Chandra Das and Ullaskar Dutt jointly. Another instruction jotted down in Exhibit 239 is "Core earth to be sent ;" and traces of core earth, which is useful in connection with moulds for making shells, were found in the garden. "Dr. Dhudhe," the same instruction runs, is "to be kept in the garden ;" and one of the memoranda found in Exhibit 382 at 15 Gopi Mohan Dutt’s Lane, is "B. R. Dhudhe, Dr., Vyara, S. V. Ry,,” a person of whom the prosecution evidently knows nothing more with reference to this case. In a note-book (Exhibit 381-2) discovered in the pocket of a shirt iu the garden is a curious formula, which is exactly reproduced in the other note-book (Exhibit 382) found at No. 15. In the former book, again, there is a receipt for the postal money-order for Rs. 20 proved to have been sent to the Mozfferpore suicide, Dinesh Chandra Roy, alias Profulla Chaki. And the reference in Barendra’s note-book (Exhibit 239) to "marriage expenses" (which cannot but have meant something else, as marrying and giving in marriage must have been very far from the thoughts of the inmates of the garden) attracts a sinister significance when read with Exhibit 150, a letter from Mozafferpore, signed "Dinesh Chandra Roy," which was found in the garden, and which refers apparently to Mr. Kingsford as "the bridegroom." These, I think, are but fair specimens of the mass of documentary evidence furnished against these appellants, and the genuineness of all of it is, to my mind, unimpeachable.

Then, as to the search-lists and search-witnesses, there can be no doubt but that the lists were not prepared as methodically and regularly as the police began by daring to assert, and the testimony borne by such of the search-witnesses as were called and examined—none of them need, under section 103 (2) of the Code of Criminal Procedure, 1898, have been produced at all ―does not read convincingly. But the circumstances of the case must once more be remembered. In the garden alone the numbers of the exhibits run up to 282, and in many instances a single exhibit number represents considerably more than one article. Thus Exhibit 9 is subdivided into Exhibits 9 (1) to 9 (3], being 3 rifles; Exhibit 10 is a miscellaneous lot, comprising a breech-loading gun, a muzzle—loading gun and a pair of bellows; Exhibit 27 represents ten different flasks of gun- powder, marked Exhibits 27 (1) to 27 (10); Exhibit 32 similarly covers 13 separate boxes of cartridges; Exhibit 93 includes 15 distinct plans ; Exhibit 173 is a wooden box, in which were found, apparently amongst other things, 35 miscellaneous books and pamphlets; 8 false beards and 2 wigs are marked together as Exhibit 225 ; and Exhibit 281 is a large collection of papers and books. It becomes, therefore, at once apparent. how difficult, if not impracticable, it must have been to attempt to

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prepare, on the spot and in strict accordance with the rules and forms prescribed on the subject, a detailed list or catalogue raisonne of all these things; and one can readily understand that the work was begun in the garden, but it was found impossible to continue and complete it there, and it was decided to carry everything away to the police office and have the items tabulated and examined at that place. And, as regards the search-witnesses, it is notorious that "respectable neighbours" are not always ready to assist even at ordinary searches, not to mention searches in a case of this kind. Having regard to these considerations, and looking in particular at the character of the findings, I am firmly of opinion that the searches and the discoveries were genuine throughout, that the police have honestly produced all that they actually found at each of the places raided, and nothing more, and that the prosecution has laid before the Court particularly everything for what it is worth. There is, indeed, an utter want of discrimination in this connection, which, while it does not, from one point of view, redound altogether to the credit of the Crown in an important trial as this, is nevertheless, as I have already remarked, eloquent as to the bona fides of the prosecution. In a word, the Crown has, as was, of course, only to be expected of it, come into Court, with clean hands, and a clearer, more straightforward case, notwithstanding its complex character and the difficult points arising in it, it has seldom been my lot to deal with. And I cannot leave this view of the evidence as a whole without expressing on my own account the opinion that this is a trial in which the police have shown themselves worthy of the confidence of the public, and from which they have emerged with credit.

There remain, in connection with the evidence, the confessions, which were recorded by the District Magistrate, Mr. Birley, shortly after the arrests, and which, I agree with the learned Chief Justice in holding, were admissible. The decision of the Full Bench of this Court in the Empress v. Anuntram Singh* is now obsolete, and there is nothing in the present Procedure Code to incapacitate from recording a confession under section. 1644 the magistrate who intends eventually to try the person confessing. I further concur in holding that the confessions were recorded under that section; for as a matter of fact, the police investigation had not come to an end, and the magisterial enquiry had not, and could not have, commenced, when Mr. Birley recorded them. I am also of opinion that even if section 164, were held to be inapplicable, the provisions of that section and of sections 342 and 364 of the Procedure Code are not exhaustive and do not limit the generality of section 21 of the Evidence Act as to

____________________________________

* (1880) I. L. R. 5 Cal. 954.

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the relevance of admissions. Finally, as to the voluntary character of the confessions in this case, there can be no question. Mr. Birley is a magistrate of experience and standing, and he appears from the record itself, as well as from the evidence given by him on the point, to have done all that in him lay, and even more than the law expressly requires, to satisfy himself that they were genuine before he received them. He warned each person that he was a magistrate, and that any statement made to him might be used in evidence ; and he put direct questions as to the presence or absence of pressure. It is true that the confessing accused had been in police custody for some time ; but the chief of them, Barendra, had, immediately after the arrests in the garden, pointed out the most damning evidence on the spot, not only to the police, but to Major Black, I. M. S., the Chemical Examiner, also. Moreover, the education and intelligence of the accused, the tenor of their confessions, and specially the reasons for confessing vouchsafed by Barendra and repeated by some of the others, all point to the one conclusion that they were free agents. It has, however, been objected that their confessions were made in answer to enquiries, and that no question ought to have been put to any of them beyond some such initial query as—What do you wish to say, if anything ? Now, although section 29 of the Evidence Act expressly provides that a confession does not become irrelevant merely because it was made in reply to questions, no matter what their form, which need not have been answered, yet there can be no doubt but that a process of examination may detract from the voluntary character of the transaction, and that, where there is ground for thinking that there has been any such result, the confession is vitiated thereby. But here there is no reason to suspect anything of the kind, and the voluntary character of all the statements recorded by Mr. Birley stands unimpaired. Moreover, their truth has not to this day been denied by any of the appellants except Sudhir Kumar Sirkar and Krishna Jiban Sanyal. These two retracted their confessions and alleged police pressure when they were examined on the 13^th August, 1908, prior to their commitment; but the others contented themselves with bare and belated withdrawals made when the trial began in October. And I cannot accept the proposition, urged by Mr. Das, that in no circumstances is a magistrate justified in eliciting anything from a prisoner by in- dependent enquiry. The examination provided for by section 342 of the Procedure Code is, no doubt, expressly and advisedly now confined to the object of "enabling the accused to explain any circumstances appearing in the evidence against him ;" but there is no such limitation placed—by section 16-1, or by any other provision of law of which I am aware, and in the stage of investigation before any evidence has been recorded there is obviously no room for the limitation. At that stage, and, indeed, at any

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point other than that indicated in section 342, the only thing that is abhorrent is pressure or inducement, and the sole criterion by which the fitness of an examination can, so far as I can see, be judged, is with reference to the question whether it was voluntary or not. Therefore, holding as I do, that Ullaskar Dutt, for example, was a ready and willing informant, I consider that the questions put to him were all proper questions, and that, when he was asked—"Have you anything else to say ?" and replied,―“If you question me, I can say"―, Mr. Birley not only was right in putting further questions to him in response to the invitation, but might reasonably have been found fault with, had he refrained from doing so. Similarly, when Barendra told the magistrate that he had supplied the Mozafferpore assassins with revolvers, the magistrate was, I think, justified in enquiring whence the revolvers had been obtained; while the reply—"I do not wish to say"—and its immediate acceptance as putting an end to the topic, show how scrupulously and admirably fair Mr. Birley’s treatment of the prisoner was.

I have one remark more to make regarding confessions before I leave the subject. For very obvious reasons, there can be no surer foundation for conviction. But, for equally obvious reasons, they have always been, and always will be, regarded by Judges with suspicion; and I trust that nothing I have said in this judgment will be viewed as an incentive to the police to aim at securing evidence of this class. My remarks should, therefore, be read with reference to the particular confessions before us, most, if not all, of which, may be said to be sui generic.

Various other points of law have been raised in the course of the argument at the Bar, and as to most of them, all I need say is that I concur with the learned Chief Justice. There are, however, three which I have special reasons for desiring to notice.

First, Mr. Das has contended that the Criminal Procedure Code, in so far as it interferes with the indefeasible right of every British subject, be he European or Indian, to be tried by jury, is void as being ultra vires of the Indian legislature ; and my lord the Chief Justice has disposed of the contention by pointing out that a similar objection recently failed before a Special Bench of three Judges of this Court, constituted under section 11 of the Indian Criminal Law Amendment Act of 1908 to try the case of the King-Emperor v. Karlik Chandra Dutt and others. As that case has not been reported, as I was a member of the Special Bench by which it was tried, as the decision in it was arrived at by us sitting on the Original Side, and as Mr. Das pressed his contention in all seriousness, with great skill, and at considerable length, I cannot refrain from dealing further with the point.

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Shortly put, Mr. Das’s argument is based upon section 22 of the Indian Councils Act, 1861 (24 & 25 Vict., c. 67), where it stands enacted by Parliament that "the Governor General in Council shall not have the power of making any laws and regulations which shall repeal or in any way affect * * * any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom? And he argues that, as allegiance and protection are reciprocally due from the subject and the Sovereign and cannot be separated, any law which attempts to take away the Sovereign’s protection by infringing such a right, conferred to secure the liberty of the subject, as the right of trial by jury, at the same time relaxes the duty of the subject, to observe allegiance towards his Sovereign, and is, therefore, ultra vires. Precisely the same line of argument was followed in 1870, once on the Original Side of this Court and again on the Appellate, in the well known case of Ameer Khan’* in connection with the question whether a writ of habeas corpus could be issued in respect of the detention in the mufassal of a Muhammadan subject of the Grown under the State Prisoners’ Regulation of 1818 and the State Prisoners’ Act of 1858; and I cannot do better than quote from the judgments then given by Phear and Markby, JJ., when dismissing the appeal from the decision of Norman, J., refusing to issue the writ. The Statute under consideration on that occasion was section 43 of the Government of India Act, 1833 (3 dt 4 Will. 4, c. 85); but the language was, word for word, the same as that reproduced above from the Statute of 1861, which in this respect merely repealed and re- enacted the earlier provision. Mr. Justice Phear—see p. 477 of the report—thought that the words in question "I did not refer to any assumed conditions precedent to be_ performed by or on behalf of the Crown as necessary to found the allegiance of the subject, but to laws or principles which prescribed the nature of the allegiance ;" and he went on to say that "the learned Counsel appeared to him at this stage of his argument to be endeavouring to convert a political sentiment into a principle of law." And Mr. Justice Mark by - see pp. 481, 482—followed with these trenchant observations :—

" It is said that the Act of 1858 was an excess of the power conferred upon the Indian legislature "‘ * because it affects that part of the unwritten law or constitution whereon allegiance depends. "" * *

The restriction * * is certainly couched in language to the last degree vague and obscure. Possibly a search into the discussions which preceded the Act, might suggest '

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* 6 B. L. R., (1870) 392 and 459.

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a meaning; but I think that is a dangerous method of reinterpretation, and I would rather 11ot resort to it. I think this objection is sufficiently answered by what appears to me to be a very clear principle; namely that the allegiance of a British subject in no way whatever depends on the existence of such a power as is conferred on the Governor-General by the Regulation of 1818. I wholly repudiate the doctrine contended for, that the allegiance of a subject to his Sovereign can by any possibility be legally affected by the mere withdrawal from the subject of any right, privilege or immunity whatsoever. I think the notion of reciprocity expressed in the maxim protectio trahit subjectionem et subjectio protionem, upon which this argument depends, is one which is wholly inadmisible in any legal consideration."

These remarks I would adopt and apply munatis mutandis, to Mr. Das’s contention in this case. Moreover, trial by jury as known to the common law of England—that is to say, trial by the unanimous voice of twelve of one’s peers——is unknown in India; and it seemed to Mr. Justice Harrington, Mr. Justice Mookerjee and myself last March, as it seems to me today, that it is too late now to question the validity of every law regulating criminal procedure that has been enacted in this country under the Statutes of 1833 and 1861, and the legality of every trial held whether by jury or with the aid of assessors in the muffassal, or by jury before the Supreme or the High Court, during the last seventy-six years at least.

Secondly, as regards the question of waiver, I agree in thinking it settled by authority-—see the decision of this Court in 1880 In the matter of the petition of Quiros,* followed in 1888 by the Bombay High Court in the Queen-Empress v. J. Grant, ** and in 1892 by the Madras High Court in Queen-Empress v. Barlett,***— that an European British subject can relinquish his right to be tried as such, and that the appellant Barendra Kumar Ghose did so. And I would add that he seems to have acted deliberately r and after the fullest warning and explanation of the position.

And, thirdly, I agree in considering that the expression " wages war," which is used in section 121 of the Penal Code, must be construed in its ordinary sense as a phrase in common use in the English language, and that it is impossible to hold that any of the overt acts alleged in this case amount to the offence provided for by that section. The charge thereunder, therefore, fails on the merits, and the death sentences passed on Barendra Kumar Ghose and Ullaskar Dutt cannot be confirmed. I also think that

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* (1880) I. L. R. 6, Cal. 83.

** (1888) I. L. R. 12, Bom. 61.

*** (1892) I. L. R. 16, Mad. 308.

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there was no valid authority for the prosecution of the first batch of the accused on that charge, and I would endorse all the principles laid down by the learned Chief Justice in this connection; but, as his Lordship has indicated, a decision on the point is not, in the view which we take of the offence concerned, essential.

It remains for me now only to refer to the cases of the appellants individually. As regards (1) Barendra Kumar Ghose, (2) Ullaskar Dutt, (3) Upendra Nath Banerjee, (4) Hem Chandra Das, (5) Bibhuti Bhusan Sircar, (6) Hrishikesh Kanjilal, (7) Indu Bhushan Roy (8) Abinash Chandra Bhuttacharji, (9) Nirapada Roy, (10) Sisir Kumar Ghose, (ll) Poresh Chandra Maulik, and (I2) Sudhir Kumar Sircar, I agree throughout with the learned Chief Justice, both in respect of the offences charged and in respect of the reduction of some of the sentences proposed now that the conviction for waging war, for which the minimum penalty fixed by law is transportation for life, has been ruled out. And as to (13) Balkrishna Hari Kane, I also concur in thinking that there is room for considerable doubt, to the benefit of which he is of course entitled. But as regards the remaining five, namely, Susil Kumar Sen, Birendra Chandra Sen, Krishna Jiban Sanyal, Sailendra Nath Bose and Indranath Nandi, I regret that, for reasons which I have recorded separately, I cannot bring myself into agreement with my Lord.

His Lordships then gave his reasons for differing in the case of these 5 appellants.

In conclusion, I venture expressly to associate myself with the remarks made by his Lordship as to the assistance which we have received from both sides, and the manner in which the case for the appellants has been laid before us.

The 23rd November, 1909, H. W. C. CARNDUFF

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