1. The accused appeals against his conviction by the Special Tribunal sitting at present in the Malabar District of an offence punishable under Section 121 Indian Penal Code and his sentence to be hanged and to forfeit his property.
2. The first point taken is that the sanction of the local Government which is required by Section 196 of the Code of Criminal Procedure is defective in that it does not specify with sufficient clearness the section or the offence in respect of which it is given. The sanction is Ex. B and it no doubt is a sanction for the prosecution of the accused in the alternative for offences under Section 121 or under Section 121-A Indian Penal Code. It is urged that a sanction in the alternative is not such as the law contemplates and the judgment of Sir Lawrence Jenkins, C.J. in Barindra Kumar Ghose v. Emperor I.L.R. (1909) C 467 is relied on. We respectfully and fully accept the observations of the learned Chief Justice to the effect that ' the sanction should be specifically directed to the particular sections in respect of which proceedings are to be taken, and that the order should be preceded by and be the result of a deliberate determination that proceedings shall be taken in respect of a particular section or sections and no other.' We agree further that 'it would be opposed to the true intendment of Section 196 Criminal Procedure Code for the Local Government to give its legal and other advisers a roving power to determine under what sections proceedings should be taken.' But we see no reason to doubt that those requirements are fulfilled in the present case. The present case in fact differs from that with which sir Lawrence Jenkins, C. J. was dealing in toto, since the sanction thereafter specifying a number of sections, gave a general authority to proceed under any other section which might be found applicable. Here the sanction is entirely specific and the only question left open, no doubt for the benefit as such of the Court which was to try the case as of the Prosecutor who was to institute the complaint, was which of the two sections specified applies to the facts which might be proved. We hold the sanction proper. This objection therefor fails.
3. The next objection taken to the proceedings is that they did not begin with an examination of the complainant by the Court. The procedure under Clause 6 of Ordinance III of 1921 dated 5th September 1921 is to be that prescribed for warrant cases and no doubt the first incident in the trial of such a case under Section 252 is to be that 'the Magistrate shall proceed to hear the complainant (if any)', the section providing next that 'he shall take all such evidence as may be adduced'. This however in no way assists the accused's contention that a trial without the examination of the complainant on oath is irregular. The expression used in Section 252 is 'hear the complainant,' The taking of evidence is separately referred to. We have been shown no authority for holding that 'hearing' a complainant involves his examination on oath. We may in dismissing this objection observe that nothing resembling it appears to have been put forward at the trial and that it is not shown how the accused was in any way prejudiced by the procedure followed.
4. Turning to the merits we have the evidence first of the Deputy superintendent of Police that the accused was seen in a crowd described as composed of two or three thousand persons which attacked the force of Police and Military, after it had had been engaged, under the District Magistrate's supervision in searching for war-knives under the Malabar War Knives Act, India Act XXIV of 1854. The witness says that the mob came on against the force of about two hundred Police and Military, that it attacked them with swords, knives and bludgeons, that the Police had to fire in self defence and that it was only after nine persons had been killed and three wounded by that fire that the mob retreated to Pirurangadi and some of those composing it entered the mosque there. The police and the Military followed the mob to and the first witness then saw the accused in the mosque. He knew him previously--how he knew him previously we shall explain--and asked him to come out. Accused was then arrested and, at the request of the first witness and others, he told the mob to disperse and it obeyed his directions. The second witness, the Deputy Inspector General of Police, corroborates this evidence generally, except that he saw the accused only at the mosque. These are two witnesses regarding the actual occurrence. There is, it may be said, no evidence on this part of the case for the accused. He moreover attempted no cross examination. He merely denied that he was present as alleged, but made practically no further attempt to defend himself or to counter the prosecution evidence. In these circumstances we have no hesitation in believing that evidence and holding that the accused was in the mob, as the first witness alleges, and was, as the first and second witnesses allege, at the mosque and that after his surrender the other members of the mob dispersed under his directions. There is the further important fact, which also we accept on the authority of the first witness, that the accused was in the front rank of the mob on the right just by the standard bearer. It is objected to this part of the evidence that it was only given on the fourth occasion on which this witness was examined. It was given however in reply to a question put by the court and we see no reason for doubting that it was a pure accident that it was not mentioned earlier or for thinking that it does not represent what the witness really saw.
5. The next question is whether these acts of the accused amounted or not to the offence of waging war against the King. Dr. Swaminathan on his behalf has contended that they did not. We are quite ready to recognise that in some cases it may be hard to draw the line between mere rioting of a serious nature, in which numerous persons take part, and the offence with which we are dealing. But we do not think it necessary to quote at length the law bearing on the case; for we have no doubt that the statement of it in the leading cases of Lord George Gordon XXX, State Trials, p 486, and Regina v. Frost IX Carrington and Payne Nisi Primus p. 129 fully supports the view we take of the nature of the offence of the accused in this case. The object of the mob was not merely resistance to the District Magistrate or to any isolated action, or for any particular purpose, but, as appears from the evidence we shall next refer to, the total subversion of the British Power. That evidence is given by the fourth and fifth witnesses, the former a constable and the latter an independent land-owner. Nothing to their discredit has been alleged and here again the accused has given no counter evidence. They say, and it is apparently not denied, that the accused has for sometime been the Secretary of the Khilafat movement, which has an office at Tanur, within six miles of the scene of the occurrence. At meetings of the Khilafat movement, as the 4th witness deposes uncontradicted, it was urged that no revenue should be paid to Government and that those present should non-co-operate with it. The accused, there is evidence, preached these doctrines. It is said--and it is not contradicted by the accused, in fact the defence witness speaks to the fact--that he had already for sometime before this occurrence been usurping one prerogative of the Sovereign power by holding a mock court of justice of his own. On the morning of this occurrence the fourth and fifth; witnesses heard him at a largely attended meeting at Tanur say-in' that those present must subvert the British Raj and establish the Khilafat Government and that all Government offices, railways and telegraphs must be destroyed. He said that all must start at once for Tirurangadi and destroy the British soldiers and the District Magistrate there. He had with him at that time a flag, which was being carried in the forefront of the crowd, when it attacked the District Magistrate and his forces. M.O.1, there is no doubt, is the flag that was then being carried, since it was picked up on the spot by the Deputy Inspector General, 2nd prosecution witness. We have adopted the Court witnesses' version of the inscription on it and taking that version in the form most favourable to accused without the word 'combat'--the inscription runs :--' God the greatest. The Khilafat, go to work lightmindedly and slowly and you will certainly succeed and God will be with you. 'It does not seem to us that the substitution of ' work ' for ' combat ' in the connection, in which the word stands on a banner used in the circumstances in which it was used, greatly assists the accused's case; for with neither word can it be possible to regard the banner as a peaceful symbol. We have then that the accused was taking part in an organised armed attack on the constituted authorities, that attack having for its object, in the words of his own speech, the subversion of British Raj and the establishment of another Government. That being so, we concur without hesitation in the lower Court's conclusion that the accused was guilty of the offence of waging war against the King.
6. The remaining question is as to sentence. The lower Court apparently was not aware that the punishment of forfeiture of property had been abolished by Act XVI of 1921, which received the assent of the Governor-General on the 29th September 19.21. In these circumstances we must set aside that part of the sentence.
7. In view of the character of the occurrence we can find no reason for interference with the sentence of death, which we therefore confirm.