K.C. Das Gupta, J.
1. These three appellants were tried along with two other persons Tarak and Tarapada by a Special Tribunal constituted under the Tribunals of Criminal Jurisdiction Act, 1952 (West Bengal Act 14 of 1952). The case was first instituted on the information lodged by Chandranath Mitra, the Cashier of D. Waldie & Co at Konnagar on the allegation among other things that a number of persons armed with deadly weapons had committed robbery after hurting seriously one Dinanath, a Durwan of the company by throwing bombs. As a result of the injuries received the Durwan died.
The Police after investigation submitted charge sheet against Harendra Nath Bab and Jagabandhu Mitra under Sections 392, 397, 302/34, I. P. C., against Harendra Nath Bag also under Sections 3 & 5, Explosive Substances Act, against Jagabandhu also under Section 3, Explosive Substances Act; against Kanailal Das under Sections 392, 397 & 114, I. P. C., against Tarak and Tarapada under Section 411, I. P. C., and against Ram Chandra Ray who was shown as absconding under Section 392/397/114, I. P. C.
2. This case was allotted to the Special Tribunal at Hooghly by an order of the Government. Thereafter the learned Judge presiding over the Special Tribunal 'took cognizance of the case' and tried all the accused persons. Charges were framed by him under Section 394, I. P. C., against Harendra Nath Bag, Kanai Lal Das, Ram Chandra Ray and under Section 394/397, I. P. C., against Jagabandhu Mitra. He also framed a charge under Section 3, Explosive Substances Act, against Jagabandhu and under the same Section against Harendra Nath Bag. Against Tarak Nath Chowdhury and Tarapada Das he framed charge under Section 411 I. P. C,
The Judge acquitted Tarapada and also Bam Chandra of the charges against them. He convicted Jagabandhu under Section 394/397, I. P. C. and sentenced him to R. I. for 7 years for that offence. He convicted Jagabandhu also under Section 3, Explosive Substances Act, and sentenced him to R. I. for three years therefor, the sentences to run concurrently. He convicted Harendra under Section 394 I.P.C., & under Section 5, Explosive SubstancesAct, and sentenced him to R. I. for 7 years for the first offence and R. I. for 3 years for the second offence and directed that the sentences should run concurrently. He convicted Kanailal under Section 394, I. P. C., and sentenced him to R. I. for 7 years for that offence.
3. The prosecution case was that on 7-7-1952 when Chandra Nath Mitra, the cashier of D. Waldie & Co. was going with a Durwan Dinanath Jaisi to whom he had handed over Rs. 11298/5 in two bags on a tray, with the intention of making payments to employees of the Company in the zinc Department therewith, Jagabandhu Mitra and Harendra Nath Bag attacked them; three bombs were thrown in quick succession one by Jagabandhu and when the Durwan fell, the tray with the money also fell down on the ground; Harendra picked up the bundles of money and ran towards the river Hooghly followed by Jagabandhu. Both of them, it is said, got into a boat and crossed to the other side of the river where lies the town of Panihati. Kanai Lal Das and accused who is not before us, i.e. Ram Chandra Ray, are said to be the other two men who were on the boat.
It is further alleged that as that boat reached the that of the cremation ground at Panihati, first Ramchandra and then the other three men jumped from the boat and tried to escape but while Ramchandra managed to escape, the other three, Kanai, Jagabandhu and Harendra were pursued and caught. At the time of arrest, it is said, bags in which there were some bombs as well as the stolen money were found.
4. All the accused pleaded not guilty. The defence of the accused Jagabandhu was that he had gone early on that date to the house of his music teacher at Baranagar, and later he left the house in company with his teacher's son Sunit and his sister Indira for Konnagar. On the way, it is said, he went along with them to the house of Rabi Ghose and Sibu Ghose and after waiting there for some time he with Sunit and Indira came to the Ferry ghat at Panihati. While they were waiting for the Ferry boat sounds like explosion of bombs were heard and shortly afterwards was heard an uproar in the direction of Panihati Bazar. Jagabandhu's case is that on this he ran to the Panihati Bazar and found large crowd there, and that seeing him running several persons caught hold of him.
5. The defence of the accused Harendra is that he set out from his house at Konnagar for the purpose of witnessing a cinema show at Panihati. When he reached Panihati he heard the shouts of people and saw two or three boats coming towards Panihati. When on hearing this Gol-mal he proceeded towards Panihati, some people said 'Where have they gone? Where have they gone?' He asked them what was the matter. On this they asked him whether he had seen some men going towards Panihati. He said: 'I do not know them but seme men had gone running towards that direction.' When he told them in reply to their query that his home was at Konnagar and that he wanted to go a Cinema show some people said that it was better to arrest him and then they seized him.
6. The defence of accused Kanai Lal Das is as suggested in cross-examination that he was caught just when he came out of a prostitute's house in Mitra para Lane along with some persons who were running.
7. Before proceeding to the consideration of the evidence it is necessary to consider first the contention raised on behalf of the appellants that they have not been tried in accordance with law. In support of this contention Mr. Dutt has addressed to us a fourfold argument.
First he has argued that Section 397, I. P. C., does not define an offence and so when the Schedule to Act 14 of 1952 mentions an offence punishable under Section 397, I. P. C., it means nothing at all.
Section 397, I. P. C., provides that a minimum sentence of 7 years' rigorous imprisonment must be inflicted if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person. The maximum sentence for robbery or dacoity is not provided for in this Section. Section 390, I. P. C., defines robbery while Section 391 defines dacoity. Section 392 provides for punishment for robbery in general. Section 393 provides for punishment for attempts to commit robbery. Section 394 provides for punishment if a person in committing or attempting to commit robbery voluntarily causes hurt and if any other person is jointly concerned in commiting or attempting to commit such robbery. Section 395 provides for the punishment for dacoity. Obviously, therefore, a person who becomes liable to minimum punishment under Section 397, I. P. C., may be liable to punishment either under Section 392 or under Section 394 or under Section 395, I. P. C.
It may be reasonably said that a proper description of an offence punishable under Section 397, I. P. C., would be given by the words 'an offence of robbery or dacoity for which the offender is liable to punishment under Section 397, I. P. C.' The omission to use these words cannot however take away the fact that something definite is understood when one speaks of an offence 'punishable under Section 397, I. P. C. One understands by these words an offence of robbery or dacoity in which the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. It is therefore, not right to say that the words used in Section 397 I. P. C., do not clearly indicate an offence. They certainly indicate an offence very clearly. The Legislature did not think it right to include every offence of robbery in the Schedule for the special procedure of trial laid down in the Act, but thought proper to include only certain kinds of robbery viz., the robbery for which the offender is liable to the minimum punishment under Section 397, I. P. C. There is, therefore, in my judgment no substance in Mr. Dutt's argument that there was no Scheduled offence at all before the Tribunal.
8. Mr. Dutt's second argument is that in any Case the Tribunal had no jurisdiction to try an offence under Section 394, I. P. C., as Section 394 is not a scheduled offence. As we have already stated, Jagabandhu was tried and convicted on charges under Section 394/397, I. P. C., but the other two appellants Harendra and Kanai were convicted only under Section 394, I. P. C. The provision under which scheduled offences are triable by Tribunals only appears in Section 4 of Act 14 of 1952. It is in these words:
'Scheduled offences shall be triable by Tribunals only'.
9. This is followed by a proviso in the following words:
'Provided that when trying any case, a Tribunal may also try any offence other than a scheduled offence, with which the accused may under the Code be charged at the same trial.'
10. In the absence of this proviso there might have been some semblance of logic in Mr. Dutt's argument that an offence under Section 394, I. P. C., was not triable by the Tribunal as obviously an offence under Section 394 as such, in the absence of circumstances which make the offender punishable under Section 397, is not included in the Schedule. The Proviso however cannot be overlooked. This gives a Tribunal which had commenced trying a case for a scheduled offence jurisdiction to try a person who has been accused of a scheduled offence for a non-scheduled offence also, subject to this condition only that the accused may under the Code of Criminal Procedure be charged with that, non-scheduled offence at the same trial. There can be no doubt that a person accused of an offence under Section 397, I. P. C., which is a Scheduled offence can at the same trial be tried for an offence under Section 394, I. P. C. This follows, in my opinion, from the provisions of Section 236, Cr. P. C. which provides that
'if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once.'
In the present case the acts were obviously of such a nature that if certain facts could be proved the offence would be punishable under Section 397, I. P. C., whereas if certain lesser facts could be proved the offence would be punishable under Section 394, I. P. C. Consequently under Section 236, Cr. P. C., a person could be charged at the same trial with an offence under Section 397 as well as under Section 394. The condition in the proviso that the accused may under the Code be charged at the same trial is therefore clearly satisfied in this case. Consequently, as regards the accused persons against whom the Tribunal had already taken cognizance of an offence under Section 397, I. P. C., on the charge sheet submitted by the Police, the Tribunal acted rightly in trying them also for the non-scheduled offence under Section 394, I. P. C.
11. Mr. Dutt has, however, tried to convince us that as Section 5 of the Act provides for cognizance being taken by the Tribunal only of scheduled, offences and the Act contains no provision for cognizance being taken by the Tribunal of non-scheduled offences, the Tribunal having no power in law to take cognizance of non-scheduled offences, could not try an offence under Section 394, I. P. C., and so it could not be said that the accused could under the Code be charged at the same trial for on offence under Section 394, L P. C.
12. In my judgment this argument is based on a misconception as regards relation between tile Court's taking cognizance of an offence and the Court's trial of an offence. If the law were that a Court can try an accused person only for an offence of which cognizance can be taken, there might have been something to be said for Mr. Butt's argument. I find however no Justification in law for the proposition that the Court can try an accused person only for an offence of which it has taken cognizance.
The entire scheme of the Code of Criminal Procedure, as I understand it, is that trial by a Magistrate of summons cases or of warrant cases or by the Court of Sessions of cases triable by that Court, cannot commence unless the Court concerned has taken cognizance of some offence. Taking cognizance is the necessary pre-requisite of the commencement of a trial. Once however cognizance has been taken of an offence, the Court is left free to try the accused person for any offence that is 'prima facie' made out on the evidence adduced. Thus, in the case of summons cases Section 246, Cr. P. C., provides that a Magistrate may convict the accused of any offence triable under the Chapter i.e. Chapter 20, which lays down the procedure for trial of summons cases, which from the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons. The words 'whatever may be the nature of the complaint or summons' make it absolutely clear that the Court is not confined to the offence of which cognizance has been taken.
13. Turning to Chapter 21 which lays down the procedure for trial of warrant cases by Magistrates, we find Section 254 laying down the following, provision :
'If, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion could be adequately punished by him, he. shall frame in writing a charge against the accused.'
It is important to notice the words 'an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion could be adequately punished by him'. There is no limitation that the charge can be only as regards an offence of which cognizance has been taken.
It is important in this connection to keep in view the provisions of Section 227, Criminal P. C., which provides that
'Any Court may alter or add to any charge at any time before judgment is pronounced, or, in the case of trials before the Court of Session or High Court, before the verdict of the Jury is returned or the opinions of the -assessors are expressed.'
Thus in -- 'Kattuva Rowther v. Suppan Asari : AIR1927Mad307 , the Court held that whenever facts are proved constituting an aggravated offence, that is the offence which must be regarded as being tried and the Magistrate must either alter the charge under Section 227 or refer the case under Section 346, Cr. P. C.
14. In my judgment the assumption that a court can try an accused person only for an offence of which it has taken cognisance is not well founded in law.
15. It may be pointed out that Section 10 of Act 14 of 1952 has made all the provisions of the Code of Criminal Procedure so far as they are not inconsistent with the provisions of the Act applicable to all matters
'connected with, arising from, or consequent upon, a trial by a Tribunal constituted under this Act as if the Tribunal were a Court of Session exercising original criminal jurisdiction.'
16. My conclusion therefore is that Mr. Dutta's argument that the accused could not be charged at the same trial with an offence under Section 394, I. P. C., must be rejected, and that the Tribunal acted with jurisdiction in trying the appellants for an offence under Section 394, I. P. C., though it was not a scheduled offence.
17. Mr. Dutt's third argument that the Tribunal acted without jurisdiction in trying two of the accused persons for offences under Sections 3 and 5, Explosive Substances Act, is based on the same assumption that as cognizance could not be taken by the Tribunal of such offences, they could not try the accused persons for those offences.
Offences under Sections 3 and 5, Explosive Substances Act, are not included in the Schedule. As I have already indicated, the Act contains no provision for the Tribunal taking cognizance of non-scheduled offences but contains provisions for its taking cognizance only of scheduled offences. It seems clear that the Tribunal shall take cognizance of scheduled offences and shall ordinarily try accused persons only for such offences. This ordinary procedure is however subject to the proviso that the Tribunal after commencement of a trial for scheduled offences may also try a person accused of scheduled offence of a non-scheduled offence with which he may be charged at the same trial.
I have already mentioned my reasons for rejecting Mr. Dutt's argument that an accused person cannot be charged at the same trial with an offence of which cognizance has not been taken. Mr. Dutt's argument that the Tribunal acted without Jurisdiction in trying Jagabandhu Mitra under Section 3, Explosive Substances Act, and Harendra Nath Bag under Section 5, Explosive Substances Act, must therefore fail. It may be mentioned that it is disputed that the accused persons in question could, be charged at the same trial of an offence under the Explosive Substances Act under Section 235(1) Cr. P. C.
18. Lastly Mr. Dutt has argued that the trial was bad inasmuch as Tarak and Tarapada against whom there was no allegation of any scheduled offence were tried at the same trial. Obviously, if the Tribunal had jurisdiction to try Tarak and Tarapada, the accused charged under Section 394, I. P. C. could be tried in law along with Tarak and Tara-pada under Section 239 (e), Cr. P. C. It is contended however that the Tribunal had no jurisdiction to try Tarak and Tarapada, as there was no allegation in the charge sheet that Tarak and Tarapada had committed any scheduled offence, I agree that the Tribunal could not try Tarak and Tarapada. I am unable to agree however that the fact that the Tribunal acted without jurisdiction in trying Tarak and Tarapada had any effect on the legality of the trial of those persons whom it had jurisdiction to try.
Section 530, Cr. P. C., provides that if a Magistrate not being empowered in law to try an offender tries him, his proceedings shall be void. In the case of -- Awad Singh v. Emperor,' AIR 1947 Pat 23 (B), the Court had to consider the question whether when the accused was tried upon two charges, one under Section 420, I.P.C., and the other under Section 366, I. P. C., and the Magistrate had no jurisdiction to try an offence under Section 366, I. P. C., it being within the exclusive jurisdiction of the Court of Sessions, the conviction under Section 420, I.P.C., was also bad. It was held that there was no reason in principle why the invalidity of one conviction upon grounds which affect that conviction alone should affect or invalidate the other conviction. I respectfully agree with the view taken by the Patna High Court, and hold that the fact that the trial of Tarak and Tarapada was without jurisdiction does not in any way affect the legality of the trial of these persons whom the Tribunal had jurisdiction to try.
19. I, therefore, reject Mr. Dutt's contention that the trial of the appellants was not in accordance with law.
20-31. (His Lordship then proceeded to discuss the evidence and while doing so stated :) More serious in my opinion is the criticism that before Ex. 1(1) (F.I.R.) was recorded, the A. S. I. who was the officer in charge of the Thana had received information from other sources of the commission of the robbery. It appears that Mr. Cowper, the Manager of the Factory, who had gone to the Uttarpara Station at the same time did give information of the occurrence to the Circle Inspector. The Circle Inspector claims to have proceeded immediately for Panihati without informing the officer in charge anything of what he had been informed. Mr. Banerjee appearing for the State has asked us to hold that there is nothing on the record to justify a conclusion that the A. S. I. had information of the occurrence of the robbery before he started recording the information given by Chandra Nath Mitra. While it is true that there is nothing on the record directly showing that the A. S. I. did know of the occurrence of the robbery before he started recording Chandra Nath's information, it seems to me wholly unreasonable to think that the Circle Inspector would leave the Thana after receiving such information without telling the officer in charge what had happened and where he was going. That would be neither proper for him nor in my opinion natural. I believe therefore that the Inspector told the Officer in chargeof the information he had received from Mr. Cowper. When after this information, the Inspector recorded the statement given by Chandra Nath, I think this statement should be considered to have been recorded by him in course of the investigation and is riot available in evidence, because of the provisions of Section 162, Cr. P. C.
32-33. I accept therefore the contention of Mr. Dutt that Ex. 1(1) is not available as corroborative evidence of Chandra Nath Mitra's testimony in court. Even apart from that corroborative evidence, however, I am of opinion that Chandra Nath Mitra's evidence in court should be believed. (His Lordship further examined Chandra Nath Mitra's evidence and stated that there was no ground to disbelieve it. Then he stated that apart from Chandra Nath's testimony there was other evidence also to come to the conclusion that Jagabandhu took part in the robbery and after referring to such evidence stated :).
34. On consideration of the entire: evidence I have come to the conclusion that the prosecution case that Jagabandhu Mitra took part in the robbery that was committed outside D. Waldfe & Company's factory on 7-7-1952 and that He caused hurt to the Durwan in course of committing that robbery and also that he carried deadly weapons when committing the robbery has been proved by overwhelming evidence and that he has been rightly convicted Under Section 394/397, I.P.C. I also find on the basis of Chandra Nath's evidence that he threw a cracker which is 'explosive' within the meaning of the Explosive Substances Act. He was therefore rightly convicted under Section 3, Explosive Substances Act.
35. As regards Harendra Nath Bag evidence has been given, as already indicated, by Chandra Nath himself that Harendra was with Jagabandhu at the time of the robbery and that Harendra was carrying what looked like a ration bag and that it was Harendra who picked up the money. Harendra was an ex-employee of the Factory and there can be no reason for disbelieving Chandra Nath's evidence about his recognition of Harendra, I believe also, for the reasons already given, the evidence of Harabilash, Kiran, Sudhansu and Hiralal that Harendra was one of the three men who got down from the boat at Sasan Ghat and was shortly afterwards caught while running. On this evidence, I find it proved that Harendra along with Jagabandhu committed robbery; even if he himself did not throw any bomb, he is liable under Section 394, I. P. C., as Jagabandhu who was jointly concerned with him in the robbery caused hurt. He has therefore been rightly convicted under Section 394, I. P. C.
36. As I have already stated, Chandra Nath's evidence is that Harendra had a bag in his hand. The evidence of the persons who arrested him is that at the time of arrest Harendra was found carrying a bag which contained crackers. On this evidence I hold that Harendra committed an offence under Section 5, Explosive Substances Act,
37. As regards Kanai, Chandra Nath's evidence is that he saw Kanai seated in the boat in which Harendra and Jagabandhu started crossing the river. If that was all, there would have beenscope for an argument that Chandra Nath had not much opportunity to see the man. His evidence is however strongly corroborated by the evidence of the persons already mentioned, viz., Harabilash, Kanai, Sudhansu and Hiralal that Kanai was one of the three men who got down from the boat which came to Sasan Ghat and was arrested after a pursuit. I hold that under the provisions of Section 34, I. P. C., he must be held to be fully liable for the robbery that was committed. I find therefore that he has been rightly convicted under Section 394, I. P. C.
38. The sentences are by no means too severe.
39. The appeals are accordingly dismissed.
Debabrata Mookerjee, J.
40. I agree.