1. Preliminary objection has been taken to the trial in the lower court in this appeal and a similar objection on an identical ground has been taken to the trial in Criminal Appeal No. 847 of 1922. We have accordingly heard the earned Counsel in both these cases before giving judgment. Our decision on the objection in this case will apply also to the objection in Criminal Appeal No. 847 of 1922.
2. The objection is that, the case being instituted under an order of the local Government based on Section 196 of the Criminal Procedure Code, the order, Ex. A, in the present case being similar to the order in the other already referred to, is riot such as is contemplated by law, and a condition precedent to the validity of the proceedings is therefore wanting; or more definitely that the order of authorization by Government is not given to any determinate person as (it is said) Section 196 impliedly requires. This objection was not taken in either case in the grounds of appeal in any specific way; but the learned Public Prosecutor has not demurred to our proceeding at once. It is further material that in neither case was any such objection taken at the trial. This might be important if we proposed to deal with the matter under the explanation to Section 537 of the Criminal Procedure Code or the last portion of Section 16 of the Ordinance I of 1922. For we have not been shown how the accused were prejudiced in any way in the disposal of the case on the merits. Nothing of that sort is in fact alleged; and, when the question is only of the machinery for the institution and prosecution of the proceedings and not of the mischief, which Section 196 is designed to prevent, the institution of proceedings in respect of grave political offences without the approval of the Government at all, we should be prepared to hold that we are concerned only with an irregularity covered by Section 537, or Section 16 of the Ordinance, not with an illegality by which the proceedings would be vitiated.
3. But in fact there is in our opinion neither illegality nor irregularity. The order in question no doubt runs simply ' His Excellency the Governor in Council in Exercise of the powers conferred on him by Section 196, Criminal Procedure Code, hereby Sections the prosecution of the said persons before a Special Judge for offences punishable under Section 121, I.P.C. ' But this order was communicated and is and must be taken as addressed to the three persons designated below it; the District Magistrate, Malabar, the Public Prosecutor, Malabar, and the Senior Special Judge, Malabar. It was evidently communicated to the Senior Special Judge, as the person concerned in the holding of trials. There is some difficulty about the Public Prosecutor, Malabar. But we are informed that appointments of Public Prosecutors, who are no doubt called additional Public Prosecutors, have been made for the whole of the Malabar District, and not, as the appointment of the ordinary Public Prosecutors attached to the exitsing Sessions Courts is made, for North and South Malabar. The important point however is the communication of the order to the District Magistrate, because he is the officer who in Malabar, as elsewhere, is entrusted with the duty of initiating prosecutions generally for offences punishable under the Indian Penal Code. There is no suggestion that the District Magistrate is not directly or indirectly responsible for the prosecution. The complaint was presented and the prosecution was carried on by Mr. Rama Pattar, who signs and describes himself as additional Public Prosecutor, South Malabar; we must then apply to what he did Section 140 of the Indian Evidence Act and particularly illustration (e) thereto; and it must be presumed that Mr. Rama Pattar was a person duly empowered to initiate and carry on the proceedings. No objection was taken at the trial to that presumption and there is nothing on the record to support any objection to it. In these circumstances we do not think that any objection to the order of the Government, as insufficient in itself or as insufficient to justify the initiation and carrying on of the proceedings by Mr. Rama Pattar, has been established.
4. We turn then to the contentions peculiar to Appeal No. 1160 22; and we have first to deal with an application, Criminal Miscellaneous Petition No. 653 of 1922, for the admission in evidence of the depositions of two police officers in another case or for their examination now as witnesses. The circumstances are that these two police officers gave Evidence in Case No. 7 of 1921 on the 7th October 1921 and succeeding days; that is to say over six months, before the trial in the present case was held. The petition is argued on the ground that the accused could not, in the exercise of reasonable diligence, have known of or adduced this evidence, which is said to be material. We cannot see how there was anything in the circumstances to prevent their knowing of and adducing this evidence, when what these witnesses spoke to had been public property for over six months before the trial. We have moreover had the evidence read; and we do not see how it can be regarded as material. Criminal Miscellaneous Petition No. 653 of 1922 therefore fails and is dismissed.
5. On the merits of the present case, as disclosed by the evidence, there are the statements of the 3rd, 4th, 5th, 6th and 7th Prosecution Witnesses, eye witnesses. There is no doubt that, if those statements are believed, the charge against the accused is amply made out. Against the 3rd, 5th, 6th, and 7th Prosecution witnesses there is nothing, either in the shape of enmity or against their credit. The credit of the 4th Prosecution witness may be doubtful, since he is a dismFssed village servant. Of these witnesses, 7th Prosecution we says that he gave information to the authorities a few days after the occurrence; and that is not contradicted. 6th Prosecution witness was a Head Constable, who might very naturally note or remember the names of these two accused, since they were both prominent persons, having been Secretary and President of the local Khilafat Association. The witnesses deposed consistently, no successful attack being made on their evidence in cross-examination. The main objection to the prosecution case is based on the delay, after which it was instituted; and there is also the allegation of the accused that they were living in their usual homes and that they surrendered at once, when a warrant for them was issued. That they were living in their usual homes is not however supported by any evidence on their side and no questions were put to the prosecution witnesses on the point. It is possible that more important occurrences, in which loss of life or direct responsibility for destruction of property, engaged the attention of the authorities in the first instance. In any case this delay is quite inconsistent with the suggestion, which has also been made that the accused have been prosecuted because of their prominence in the Khilafat movement. There is further alibi evidence; and we concur in the lower court's estimate of it adding only that the evidence of the 2nd defence witness, relating to the 1st accused is not even if believed, necessarily conclusive.
6. Taking this view of the evidence we think that reasonable doubt as to the convictions is excluded. We therefore confirm them and also the sentence dismissing the appeal.