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Madhusudan Sen Gupta Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Appeal No. 17 of 1956
Judge
Reported inAIR1958Cal25,1958CriLJ25,61CWN856
ActsIndian Penal Code (IPC), 1860 - Sections 395, 396, 397, 398, 399 and 402; ;Code of Civil Procedure (CPC) , 1908; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 297, 342 and 537
AppellantMadhusudan Sen Gupta
RespondentState of West Bengal
Appellant AdvocateAjit Dutt, Adv.
Respondent AdvocateDhiren De and ;Ajay Basu, Advs.
DispositionAppeal dismissed
Cases ReferredRomesh Chandra Banerjee v. Emperor.
Excerpt:
- das gupta, j.1. this appeal is under clause (a) of sub-section (1) of section 411-a of the code of criminal procedure. the appellant was tried along with three persons, sudhir roy alias sudhin, chittaranjan das alias chitta and kartick chandra das, on a charge under section 399 of the indian penal code and on two other charges, both under section 19(f) of the indian arms act -- one of these being in respect of possession without licence of one sten gun and the other in respect of possession without licence of twenty-two cartridges. the jury returned a unanimous verdict of guilty against all the four persons on both the charges under section 19(f) of the indian arms act. in respect of the charge under section 399 of the indian penal code, the jury were divided in the proportion of seven to.....
Judgment:

Das Gupta, J.

1. This appeal is under Clause (a) of Sub-section (1) of Section 411-A of the Code of Criminal Procedure. The appellant was tried along with three persons, Sudhir Roy alias Sudhin, Chittaranjan Das alias Chitta and Kartick Chandra Das, on a charge under Section 399 of the Indian Penal Code and on two other charges, both under Section 19(f) of the Indian Arms Act -- one of these being in respect of possession without licence of one sten gun and the other in respect of possession without licence of twenty-two cartridges. The jury returned a unanimous verdict of guilty against all the four persons on both the charges under Section 19(f) of the Indian Arms Act. In respect of the charge under Section 399 of the Indian Penal Code, the jury were divided in the proportion of seven to two and the majority verdict was that all the accused persons were guilty of that offence. The learned Judge agreed with the majority verdict in respect of the offence under Section 399 of the Indian Penal Code and convicted the appellant and the other accused persons under Section 399 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for three years. The learned Judge also convicted the appellant and the other three persons of the offence under Section 19(f) of the Indian Arms Act in respect of possession of the sten gun and also in respect of the possession of twenty-two cartridges without licence. He sentenced each of the accused to rigorous imprisonment for three years for the offence under Section 19(f) of the Indian Arms Act in respect of the possession of the sten gun without licence. He passed no separate sentence for the offence under Section 19(f) of the Indian Arms Act in respect of the possession of the cartridges. He further ordered that the two sentences would run concurrently.

2. Of the four convicted persons, only Madhusudan Sen Gupta has appealed. The prosecution case is that on the 30th March, 1955, six persons including Madhusudan Sen Gupta and the other three accused persons, who were tried with him boarded a taxi W B T 358 -- at the crossing of the Gariahata Road and Rashbehari Avenue and proceeded in that taxi towards Howrah side. In that taxi they carried with them one sten gun with magazine fully loaded with twenty-two cartridges, one bhojali, a hand-grenade, some torches, five more bombs and several other articles of gun. It is said that the sten gun and the cartridges had been packed up In cloth and paper, that the hand-grenade and the torches were Inside what is called a shoulder bag and the bhojali was also kept packed. The earthen pot which is said to have contained five bombs was also packed, the mouth of the pot being closed by paper, There was a fifth package containing some garments. The prosecution case is that the six persons had provided themselves with all these things with the intention of committing a dacoity somewhere near Howrah or further off and that they were proceeding in the taxi towards the place where they wanted to commit dacoity fully prepared for that purpose. Before, however, they could effect their purpose, the police stopped them. It is said that a police party had on receipt of previous information been waiting for the accused persons near the Junction of Gariahata Road and Rashbehari Avenue and as soon as the four accused persons and their two companions got into the taxi and the taxi left, the three police officers and some plain clothed constables followed the taxi in a private car. For a considerabledistance the police party in their car kept behind the taxi in which the accused persons were travelling, but it is said that when the taxi reached the junction of Clive Ghat Road and Strand Road and was held up by traffic ahead and a tram car on the right side of the taxi, the private car in which the police were travelling shot ahead by the right of the tramway and reached the crossing of the Strand Bank Road and the Strand Road where two sergeants were found on duty. These sergeants were informed by Inspector Amiya Kumar Gupta who was travelling in the police car about the position and then all of them -- the sergeants and these police officers travelling in their police car --stopped the taxi with all the seven persons in it, namely, the six passengers and the driver, in front of 221/1, Strand Bank Road. All the six persons were according to the prosecution case then brought out of the car. Some of the police officers got inside the taxi and then discovered five packages lying in the taxi, three on the rear seat and two on the floor of the taxi in front of the rear seat. It is said that after these packages were opened, one of the three which were found on the rear seat was found to contain a sten gun in three parts and a magazine loaded with twenty-two cartridges, another -- a shoulder bag was found to contain one hand-grenade while the third package on the rear seat was found to contain a bhojali in scabbard. Of the two packages which were found on the floor it is said that one contained some articles of garment, namely, a full sleeved shirt and a torch while the other contained five country made bombs. Before, however, the six persons who were brought down could be arrested, two managed to escape. The remaining four 9s also the taxi and its driver and its contents were taken to the Thana nearby, where a search-list was prepared in the presence of search witnesses who had already been secured. On the basis of information that was lodged apparently by some of the police officers, a crime-sheet entry was made in the Barabazar Thana. On the above allegation of facts the prosecution said that the four accused persons together with two, who has escaped, and made preparations to commit dacolty and thus committed an offence under Section 399 of the Indian Penal Code and further that all of them were in Joint possession of the sten gun and the cartridges that were found in the taxi and as they had no licence for the possession of the same, they committed two other offences under Section 19(f) of the Indian Arms Act.

3. The appellant and the other three accused who were tried with him all pleaded not guilty. The defence case, as far as can be ascertained from the suggestions made on behalf of the accused persons in the cross-examination of witnesses, is that at the time the taxi in which the accused persons were travelling was stooped by the police, there was no sten gun, ammunition or any of the other articles as alleged by the prosecution inside it and that these were planted by the police in the taxi after the taxi had been taken inside the Thana compound. It was also suggested by the defence that in all there were only four persons, namely, the four accused who were tried together, besides the driver of the taxi and the story that there were six was untrue. It was suggested in the alternative that if there were two more persons, they were police informers and they could escape as the police deliberately allowed them to escape.

4. The learned Judge rightly told the Jurythat if there were only four persons, then the offence under Section 399 would not be committed, because 'even if they had made preparations to commit robbery that is not an offence under the Code.' He further pointed out very rightly that for committing the offence or attempting to commit the offence of dacoity there should be five persons & that, therefore, they had to consider whether these persons were accompanied by two other persons. As admittedly only four persons out of six were arrested and according to the prosecution two escaped, the important question which arose for jury in deciding whether an offence of preparation to commit dacoity had been committed was whether, in fact, there were only four persons as the learned Judge pointed out, and, in the second place, whether if there were other two, whether those two along with the four who were arrested and who were later put on trial had the common intention of committing a dacoity and made the preparations for that purpose. The defence suggestion was that the two persons who had escaped had been allowed to escape and that even if they might be men of the gang, they had turned informers and had given information to the police. The argument was that even if the other four had the intention to commit robbery, the two who had escaped did not share this common intention and therefore, in law no offence under Section 399 I. P. C. was made out. It was necessary for the learned Judge to direct the jury on the correct position in law and to tell then whether the position was that if there were two more persons, but they had escaped, and the jury believed that they were informers, that they were in the party and had informed the police and so did not share with the other four the intention to commit robbery, an offence under Section 399 was still made out. On this Question the learned Judge directed the jury in these words:

'Of course, how the two men escaped, that is somewhat surprising and it shows carelessness on the part of the police in not properly guarding all the six persons. It has been suggested by Mr. Majumdar that the police allowed the other two men to escape, the suggestion being that they might be men of the gang who had turned informers, that they had given information to the police, and therefore they were allowed to escape. Even if they are informers, that is they were in the Party and at the same time informed the police, still, if you think that the other four accused were going with them in order to commit dacoity, the intention of these four accused before us was to commit the offence along with the other two persons, if that is so they would still be guilty of preparing to commit dacoity under Section 399 of the Indian Penal Code. If of course, the other two persons were not there at all, then the charge under Section 399 must fail.'

There can be no doubt that the learned Judge was right in telling the jury that if the other two persons were not there, the charge under Section 399 must fail. Mr. Dutt contended that the learned Judge misdirected the Jury in telling them that if the other two persons were there but informed the police, the intention of the four accused on trial being to commit the offence along with the other two persons, they would still be guilty of preparing to commit dacoity under Section 399 of the Indian Penal Code. He has argued that before any person can be said to have made any preparation for committing a dacoity, it has to be established that he along with four other persons, or more, did form the intention to commit robbery jointly; and that it is only after this has been established and it is further established that the accused person has taken some step towards that end of committing the robbery, that he can be convicted. It is quite clear that the mere fact that the accused has formed in his own mind the intention to commit robbery, and has taken some step to-wards that end, will merely establish that he has made preparation to commit robbery and will not establish that he has made any preparation for committing dacoity. Something more is necessary: according to the learned Judge, that the further thing is that the intention in the mind of the accused is to commit dacoity, i. e., to commit robbery conjointly with at least four other persons, as distinct from an intention to commit robbery simpliciter. According to Mr. Dutt, the thing necessary is that not the accused alone but at least four other persons must have the intention of committing a robbery as a joint venture of all the five.

5. The presence of at least live persons taking part in robbery is an essential ingredient of dacoity, and indeed, is the one ingredient which distinguishes it from simple robbery. It is clear that in Sections 395 and 396 Indian Penal Code and in offences under Sections 397 and 398, where the charge is that the accused has actually taken part in a dacoity, this ingredient of at least four other persons having the common intention must be present, before there can be a conviction. In Section 403, which makes punishable the act of assembling for the purpose of a dacoity, the section itself makes it clear that the above ingredient must be present.

6. At first sight, therefore, Mr. Dutt's contention that this ingredient must be present in every offence under Section 399 also appears plausible ; closer consideration however her, convinced me that it should not be accepted. Looking at the words of Section 399 itself, I notice that what is punishable is the making of any preparation for the committing of any dacoity. The end is the commission of the dacoity; and as soon as any one person has taken any step towards that end, he is punishable. It is obvious that before a person takes any step for a particular end, the end must exist in his own mind. To give an illustration, before a man prepares to hold a meeting, he must intend to hold a meeting. He can form, such an intention to hold a meeting, before he has spoken, to any person to come to the meeting, and before any person has formed any intention to hold the meeting. Having formed such intention, he takes some step towards it. He can and must, then be said to have made some preparation. The preparation is his preparation, and so it is his intention, and his act towards that end that matter. There can, in fact, be no meeting, unless one or more other persons join him; but his preparation is complete, without any other person having otherwise shared his intention, of taken part in the meeting. In the same way a single person, when, he intends in his own mind to commit robbery conjointly with four other persons and having formed such intention, does some act towards achieving that end, he has made some preparation for committing dacoity. If ultimately, not more than three other persons share his intention, he will not be able to achieve the end; and his preparation will have been in vain. But that cannot alter the fact that he has made his preparation.

7. Mr. Dutt has argued that it is odd that for the offence of assembling for the purpose of committing dacoity, at least five persons must share the intention to commit robbery, but that for an offence of preparation, which shows mere active conduct towards the end of dacoity and for which apparently for that reason a severer penalty has been laid down, this should not be necessary. We have however to guard ourselves from succumbing to the temptation of reading into a statute, more than what the legislature has said, merely because, we think it would have been reasonable to say so. If the legislature had worded Section 399 in the same way as Section 402 by saying if any person being one of five or more persons who has formed the common purpose of committing dacoity, makes any preparation for committing dacoity, he will be punishable, the legal position in law would have been as urged by Mr. Dutt But the legislature has in its wisdom, used language, materially different from those, in Section 402. The difference in language should be taken to bo the clear indication of the legislative's mind that whereas for an offence under Section 402, there must at least be five persons, who have formed the common intention to commit dacoity, this is not necessary in the case of an offence under Section 399.

8. On all these considerations I have come to the conclusion that the learned Judge rightly directed the jury on this question.

9. One important question which arose for the decision of the jury both as regards the charge under Section 399 of the Indian Penal Code and as regards the charges under Section 19(f) of the Indian Arms Act was whether the incriminating articles were in the taxi when the accused were travelling therein or whether they were planted later on as suggested by the defence. The defence case as suggested in cross-examination of the very first witness was that these had been planted by the police after the taxi had been taken to the thana. When the accused was examined under Section 342 of the Code of Criminal Procedure this question was put to him.

'You have heard the evidence. According to the evidence of the police officers and other witnesses you were found in a Taxi WBT. 358 together with other accused and two other people and there was a sten gun and other weapons in the taxi, what have you to say as to that ?'

The answer given by the present appellant to this question was :

'I know nothing about sten gun or other things.''

10. On the basis of the fact that this appellant did not repeat in so many words the suggestion made by his Counsel in cross-examination of the very first witness that these had been planted by the police, the learned Judge addressed the jury in the following words :

'The suggestion is that all the things were planted, but the accused themselves did not say that the things were planted; they have made no such suggestion. They might have said that they had nothing to do with these articles, that they were going to Howrah to meet friends, and that these things were planted. But they only said, 'We know nothing and we would not give any explanation'. It is only the suggestion of the learned counsel that things were planted'.Thereafter, the learned Judge proceeded to ask the jury to consider the evidence and to decide whether they would conclude that things were planted and added these words : 'As it is, there is no evidence of things having been planted.' It has been strongly contended by Mr. Dutt on behalf of the appellant that the learned Judge was wrong in telling the jury that they should draw a distinction between the suggestion given by Counsel and the statement made by the accused during his examination under Section 342 of the Code of Criminal Procedure. In my judgment, it was very right for the Judge to tell the jury what the accused had said in his statement under Section 342. It was, right and proper for him also to tell the jury what had been suggested in cross-examination on his behalf. It is to be remembered that the law provides that when an accused *has been examined under Section 342, the jury may draw such inference from his answers as it thinks just. Is it just to think that because the accused has not repeated in his statement under Section 342 the suggestion made on his behalf by his Counsel, that he was not making the case that these things were planted? I am unable to persuade myself that any reasonable person can consider that this would be Just. Ordinarily, it is proper to hold that the defence which the accused's counsel puts forwards is not merely a lawyer's defence but is made on the basis of instructions received from the accused. It often happens that some defence taken by the accused in his statement under Section 342 is rejected by the Judge of facts on the ground that when the prosecution witnesses were in the witness box, those suggestions were not made to the witnesses or suggestions that were made to the witnesses were Inconsistent with the case now being made by the accused. If it be proper to hold the accused responsible for the suggestions made by his Counsel on his behalf to the witnesses in cross-examination, it cannot, in my opinion, be at all proper not to give the accused the benefit of the suggestions made by his Counsel to the witness. It seems to me reasonable to expect that when Counsel appearing on behalf 06 the accused has made the definite suggestion disclosing what the accused's case was, the accused when examined under Section 342 mad often think it unnecessary to repeat the whole thing again. To say, therefore, that because the accused has not repeated the suggestion made by his Counsel to the witnesses in cross-examination he has not pressed that defence, is, in my opinion, wholly unjust and in my opinion it is not right for a Judge to tell the jury either directly or indirectly that if the defence suggested by the Counsel in the cross-examination of the prosecution witnesses is not repeated by the accused himself, not much notice may? be taken of it. In my judgment, that is precisely the effect of the direction given by the learned Judge in this case. After pointing out that the accused did not themselves say that the things were planted and saying that they have made no such suggestion but they merely said 'We know nothing and we would not give any explanation', he said that it was only the suggestion of the learned Counsel that things were planted. It is, in my opinion, more than probable that the jury would be led to think from this direction that as the accused had not themselves said that the things were planted, but the Counsel alone had suggested it, it was not safe to believe that case. Even though the learned Judge rightly proceededthereafter to tell the jury to decide the matter on the consideration of the evidence and circumstances, I am of opinion that the direction given by his as to the effect of the accused not repeating in his statement under Section 342 that these things were planted was erroneous and that in doing so, he has seriously misdirected the jury.

11. In view of this misdirection, which affects the learned Judge's charge in respect of the offence under Section 399 as also the offences under Section 19(f) of the Arms Act, we have thought it proper to consider the evidence in this case for ourselves to ascertain whether the mis-directions in the learned Judge's charge had led to an erroneous verdict and the erroneous verdict had, in fact, occasioned a failure of justice.

12-27. (His Lordship then examined the evidence and held that on the evidence it was clearly proved that the appellant had committed offences both under Section 399, Penal Code and under Section 19(f) of the Arms Act and further Stated as follows:) My conclusion therefore is that the misdirection in the learned Judge's charge to the jury has not resulted in any erroneous verdict, and has not in fact caused any failure of Justice.

28. I would therefore dismiss the appeal.

Chakravartti, C.J.

29. I agree, but in view of the importance of the question raised about Section 399 of the Indian Penal Code, I should like to add a few words of my own.

30. The offence which Section 399 makes punishable is preparation for dacoity. It is thus dacoity and nothing else for which the section requires preparation to be made. 'Dacoity' has been defined in Section 391 of the Code. According to that definition, dacoity is an aggravated form of robbery. In order that an offence of dacoity may be committed, five or more persons must conjointly commit or attempt to commit robbery or the persons concerned in the commission of a robbery must be five or more, some of them conjointly committing or attempting to commit robbery and the rest, being present at the time, aiding the commission of the offence or the attempt to commit it Preparation for dacoity must, therefore, be preparation for a robbery which will be committed or attempted to be committed by five or more persons, all of them acting conjointly in the actual commission or attempt or some of them doing so and the others aiding them on the spot.

31. It will be seen that so far as the offence of dacoity itself is concerned, the Code contemplates actual participation by everyone of the five or more persons in the commission of the robbery, whether as a major actor or as an order. Robbery in which less than five persons actually participate is not dacoity. It, follows that a person charged with making preparation for a dacoity must be proved to have had in view a robbery which would be committed by five or more persons and to have done some act which amounts to preparation for its commission.

32. The first question which arises is whether Section 339 requires that the preparation itself should be by five or more persons. In my view, there is no warrant for saying that it does so. The offender contemplated by the Section is an individual, regarded by himself, for it says, 'Whoever makes any preparation,' and not, 'When five or more persons make any preparation,' the form of language used in Section 391, nor, 'Who-ever shall be one of five or more persons' the form of language used in Section 402, But it may be said that the section does not speak merely of 'preparation', but speaks of 'preparation for committing a dacoity' and since 'dacoity' requires five or more persons, there cannot be any preparation for committing a dacoity unless five or more persons engage themselves in the preparation. This was in fact, the contention of the appellant, but I do not think it is right. Even if an act may require the participation of a plurality of individuals, it is not impossible in the nature of things that preparation for such an act may be made by a single person. As was held in Khwaja Hassan v. Emperor, 24 Cri. L.J. 136 (Pesh) (A), if it is proved that the raid for which preparation was being made was intended to be committed by five be more persons, it is not necessary further to prove, in order to establish an offence under Section 399, that no less than five persons were making the preparation. One man's act alone may indicate preparation as was held by Boulnois, J.. in The Crown v. Shera and Ameera, 18 Pun Re 1868 p. 43 (B).

33. Digressing for a moment, I may point out that I do not consider it right to say, as was said in Nga Lin v. Emperor, 36 Cri. LJ 1384 : (AIR 1935 Bang 294) (C) that a person may make preparation for committing a dacoity within the meaning of Section 399 without any intention of himself taking an active part in it. Such a view might be possible, if the section spoke of making 'preparation for the commission of a dacoity' instead of, ''preparation for committing a dacoity' but even that I doubt. The word 'preparation' itself carries an implication of a personal venture which the person making the preparation has in view. When a person is spoken of as making preparation for a thing, the meaning ordinarily conveyed is that he is making preparation for a thing which he himself intends to do. But when the language goes further and speaks of a man preparing or making preparation for doing a thing, it can hardly be understood that the thing to be done will not be done by him, but will be done by others or someone else.

34. The question whether, in order to constitute preparation for committing a dacoity within the meaning of Section 399, five or more persons are required to engage themselves in such preparation, does not arise in the present casein its broad form, because the number of persons alleged to have been concerned in the preparation, at least ostensibly, is six. The question which arises on the appellant's seemed contention is really a more subtle one. Though, as I have already pointed out, preparation may be indicated by one man's act alone, five or more persons can also be concerned in a preparation- The prosecution case here is that six persons, carrying arms and other implements which could only have been intended to be used in a projected dacoity, boarded a taxi in South Calcutta and were proceeding towards Howrah. The police, who had some previous information, followed them from the start and as the taxi was approaching the station, they stopped it and took out the six passengers of whom, however, two made good their escape. The defence case is that there were only four passengers in the taxi and not six, as falsely alleged by the police in order to bring the case under Section 399 and, alter-natively, that the two persons who slipped away were police informers who had really nothing to do with any plan of any dacoity. Sen, J., told the jury that if the other two persons were not there at all, the charge under Section 399 was bound to fail. That direction was clearly right, because it was not the prosecution case that the accused before the Court had made preparations for committing dacoity in association with any other or unknown persons. As regards the alternative case, Sen, J., directed the jury that if they thought that the four accused before them were going with the other two persons in order to commit dacoity, the intention of the four would be to commit a dacoity along with the other two and if that was so, they would still be guilty under Section 399 of preparing to commit dacotity. This direction was challenged before us as erroneous. It was said that if the other two persons merely pretended that they too were going to commit dacoity along with the four accused before the Court, but in reality they had no intention of doing so, mere belief on the part of the four that the other two were going to be their partners in the projected crime, would not suffice to constitute an offence under Section 399.

35. The argument really means that there can be no preparation for committing a dacoity within the meaning of Section 399 unless there are not only five or more persons, acting together, but also unless all the five or more actively share the intention of committing a dacoity. In a way, this contention has already been answered by me. If one person alone can make preparation for committing a dacoity, provided he has in view the commission of a robbery by five or more persons, including himself, It follows that the sharing of his intention by at least four other persons Is not necessary for making him guilty of the offence. But the matter may be examined a little more closely in relation to a case where five or more persons are actually known to have been associated together at the stage of the preparation. At that stage, the dacoity has not yet been committed, but it is only contemplated. It appears to me that even if five or more persons are associating together at that stage, even if all of them do, in fact, share an intention to commit a dacoity and even if all of them participate in acts of preparation, the state of mind of each one of them about the intention of the rest must necessarily be only a stage of belief. He cannot know positively what the real intention of his associates is, nor whether they will actually commit or attempt to commit the robbery conjointly with him or whether they may not be merely posturing and may not slip away when the time for action comes. If that is so, if the psychological state of each one of the persons associated together must in every case be a state of belief regarding the intention of the others, it appears to me that, in the case of associates who are genuinely with a particular person in his preparation for a dacoity, as much as in the case of associates, who are in fact not with him but are only pretending to be so, his impression that they are going to be his partners in the crime must always be the only deciding factor. So long as that impression or belief is there and there is the man's own intention to commit the robbery along with his associates in the preparation, it is immaterial whether some of the associates are only pretenders. Since he has done acts whichamount to preparation for committing a dacoity and he has done them with the object of committing the offence along with his associates who, he believes and expects, shall act conjointly with him in the commission of the offence, his guilt under Section 399 is complete. What is necessary to prove against a man who is charged with making preparation for a dacoity is that he has done some act or acts which, coupled with the circumstances of the case, plainly manifest an intention to commit a robbery and commit it conjointly with four or more of other persons. The, actual association of the intention of the other persons with his own intention is plainly not necessary.

36. It thus appears to me that in order to establish a charge under Section 399, some act amounting to preparation must be proved and what must be proved further is that the act, for which the preparation was being made, was a dacoity, that is to say, robbery to be committed with five or more persons. For the latter, the test is the intention of the accused himself and his intention alone and if his intention to commit dacoity along with four or more other persons is proved, it is not necessary to prove that at least four other persons, sharing his intention and associated with him in the project, actually existed. Still less it is necessary to prove, where four or more other persons were externally at least associated with the accused in the preparation, that they did in fact share his intention. His belief in their intention and his own intention to commit a dacoity along with them Is sufficient. This it appears to me, was tersely expressed by Simson. J., in the case to which I have already referred, 18 Pun Re 1868 p. 43 (B), when he said that in order to establish an offence under Section 399, it was necessary to give evidence either of concert between five or more persons or that dacoity was the object of the accused. The same principle was more tersely stated in the case of Romesh Chandra Banerjee v. Emperor. ILR 4l Cal 350: (AIR 1914 Cal 456) (D), where it was said that what was required to be proved was either an agreement or an intention to commit dacoity, that is to say, an agreement between five or more persons to commit a dacoity, followed by some act amounting to preparation, or an Intention on the part of the accused to commit a robbery along with four or more other persons coupled with acts of the requisite character. No exception can therefore be taken to the learned Judge's direction to the jury,

37. If the above view of Section 399 be right, an apparent anomaly is undoubtedly presented by Section 402 of the Code. Under that section, anyone who shall be one of five or more persons assembled for the Purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years and he shall also be liable to fine. On the other hand, the maximum punishment prescribed by Section 399 is rigorous imprisonment for ten years and fine. It is clear that the Code regards the offence contemplated by Section 399 as more serious than the offence contemplated by Section 402. It might, therefore, be said that Section 399 contemplated a stage subsequent to the stage contemplated by Section 402 and since the offence contemplated by the former section was more serious, it really meant that the five or more persons, whose assemblage was made punishable under Section 402, had gone a step further and that they, that is to say, five or more persons, had made some preparation for committing a dacoity. I entirely agree with my learned brother that it would be doing violence to language if we construed Section 399 in that way by importinginto it considerations wholly extraneous and drawn really from another section. It has been said that the assembly contemplated by Section 402 is mere getting together, without any particular act being done. It seems that the section contemplates a stage when the whole project still lies in the realm of design and intention without any attempt having yet been made to give it a concrete shape. But the project advances a step further when some-one of them does some act amounting to preparation even if it be by himself. I should think that, in certain circumstances, assembly Itself may amount to preparation, for example, when five or more persons, after having planned a dacoity and after having collected the necessary arms and Implements, agree to assemble at a forsaken temple in a Jungle in order to proceed therefrom to the place of the raid and in pursuance of that agreement do in fact assemble there. I imagine that the assembly in such a case would not be an assembly as contemplated by Section 402, but would be an act of preparation. If so, if the persons assembled were to be prosecuted, the prosecution would not require Section 402 at all but might charge them and charge successfully under Section 399, if not under any other section.

38. For the reasons I have tried to give in some detail I agree with my learned brother in his view of Section 399 of the Indian Penal Code. I agree with him also with regard to the rest of the case for the reasons which he has given and to the order he has proposed.


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