Caspersz and Sharfuddin, JJ.
1. This is an appeal from a conviction under Section 4(b) of the Explosive Substances Act (VI of 1908), which provides, that--'Any person who unlawfully and maliciously makes or has in his possession or under his control an explosive substance with intent by means thereof to endanger life, or cause serious injury to property in British India, or to enable any other person by means thereof to endanger life or cause serious injury to property in British India, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished....'
2. The Sessions Judge of Dacca, differing from both the Assessors, has convicted the appellant, Lalit Chandra Chanda Chowdhury, and sentenced him to transportation for ten years. The two co-accused, Jyotindra Chandra Chanda Chowdhury and Harkumar Dhar, were acquitted, under Section 289(2) of the Criminal Procedure Code, there being no evidence against them.
3. We may observe, in passing, that the Assessors did not state their opinions orally, nor did the Sessions Judge record their opinions in the manner provided by Section 309 of the Code. The Assessors were allowed to put in written (pencilled) opinions, one of which is almost a judgment within the meaning of Section 367 of the Criminal Procedure Code. The intention of Section 309 has been defeated by the procedure adopted. Nevertheless, we must and shall consider the reasons which prevailed with the Assessors. The case for the prosecution is that at 7-30 P.M. on the evening of the 5th September 1910, a search was conducted of, the premises of the appellant, with the result that eleven bombs in a tin box, many postcards and letters, a paper of bomb formulae, a cypher code, three plans of houses, a list of 13 persons (with their dispositions in the event of a dacoity), four new torches and four swords were discovered. The two co-accused were in the basha or hut, where the principal articles, the bombs and correspondence, were found when the search commenced. The appellant was brought in under arrest during the search. The bombs were submitted to Government experts and classed as coming in the category of 'fulminates.' In this respect, the Assessors are in agreement with the Sessions Judge that the eleven bombs are explosives within the meaning of the Act, and we accept that conclusion. The same night, or, rather early on the morning of the 6th September 1910, a First Information was drawn up, the offence specified being that of making preparation to commit dacoity (Section 399 of the Indian Penal Code). That case came, as a complaint, on the file of the local Subdivisional Magistrate of Munshigunge, and still remains on his file. But on the 9th November 1910, the Superintendent of Police put in another complaint before the Additional District Magistrate of Dacca, together with the Government sanction, or consent, required by Section 7 of the Explosive Substances Act (VI of 1908). On this complaint and sanction the proceedings, resulting in the present appeal, were initiated, continued and concluded.
4. The learned vakil for the appellant has urged (i) that the entire proceedings, including the trial in the Court of Session, were bad in law, because the case was taken cognizance of by an officer (the Additional District Magistrate) who had no jurisdiction in that behalf; (ii) that the original case was commenced in the court of the Sub-divisional Magistrate of Munshigunge who alone had, and, even now has, jurisdiction in the matter; (iii) that the original case, in connection with the intention specified in Section (b) of the Explosive Substances Act, must be deemed to be one under Section 399 of the Penal Code, and as such triable by jury; (iv) that the search of the appellant's premises was illegal, not being warranted by any section of any law; (v) that the First Information was not a true and lawful First Information; (vi) that the conviction of the appellant is wrong on the merits.
5. The questions of law argued on the hearing of this appeal are substantially two in, number, having reference, respectively, to the initiation of the case before the Additional District Magistrate of Dacca and the legality of the search and the First Information at Munshigunge.
6. The first contention of the learned vakil for the appellant is that the Additional District Magistrate could not take any cognizance of a case already on the file of the Subdivisional Magistrate of Munshigunge, and, in support of this position, reliance is placed on the cases of Jhumuck Jha v. Pathuk Mandal (1900) I.L.R. 27 Calc. 798 Golapdy Sheikh v. Queen-Empress (1900) I.L.R. 27 Calc. 979 followed in Radhabuhav Roy v. Benode Behari Chatterjee (1902) I.L.R. 30 Calc. 449, Emperor v. Sourindra Mohan Chuckerbutty (1910) I.L.R. 37 Calc. 412, 416 Moul Singh v. Mahabir Singh (1899) 4 C.W.N. 242, Charu Chandra Das v. Narendra Krishna Chakravarti (1900) 4 C.W.N. 367, Bishen Doyal Rai v. Chedi Khan (1900) 4 C.W.N. 560 and Jharu Jola v. Shukh Deo Singh (1900) 3 C.L.J. 87, 89. We do not question the correctness of these authorities. The facts of the present case are altogether different. Cognizance was taken by the Sub-divisional Magistrate on a complaint of the offence under Section 399 of the Indian Penal Code. That complaint was made by the Sub-Inspector. Admittedly, cognizance was not taken on the First Information. No cognizance was taken, or could be taken, of the offence under Section 4(b) of the Explosive Substances Act till Government sanction, or consent had been obtained and the Superintendent of Police had preferred his complaint. The Sub-divisional Magistrate waited for the sanction, as will appear from his order-sheet, but it never reached him because his superior officer, the Additional District Magistrate, received it and took cognizance.
7. The Munshigunge Magistrate had taken cognizance upon a complaint by a Sub-Inspector. The facts stated in the complaint disclosed that the accused was in possession of bombs which was a preparation to commit dacoity. This fact of possession was mentioned by the Sub-Inspector in his complaint, and it was a necessary element for the purposes of Section 399 of the Indian Penal Code. If, as it is said, the Munshigunge Magistrate took cognizance of the offence under the Explosive Substances Act, could he issue process against the accused under that Act? He could not, as the Government had not given its consent. After a Magistrate takes cognizance of an offence, he is empowered either to issue process against the accused, or order an enquiry under Section 202 of the Criminal Procedure Code. Could this Magistrate have issued any process against the accused under the Explosive Substances Act, or ordered an enquiry? We think not, as he had no authority to do so. It seems that the Sub-divisional Magistrate was informed that an application to Government had been made, and, as the facts constituted an offence under the Explosive Substances Act also, he waited for the sanction, but this cannot be regarded as taking cognizance under that special law.
8. It is urged by the learned vakil that the same facts and evidence are involved in both the cases, but the answer to this argument is that the one fact of vital importance, namely, that the bombs were of the kind mentioned in Section 4(6) of the Explosive Substances Act, was not known till after the Chemical Examiner's Report (dated the 16th September 1910) had been received. The Subdivisional Magistrate could not address his mind to this fact, which was not known on the 6th September 1910 when he took cognizance on the complaint of the Sub-Inspector. Again, the distinction between a case of making preparation to commit dacoity (Section 399 of the Indian Penal Code) and a case of having in possession or under control any explosive substance [Section 4 (b), Act VI of 1908] is that, in the former case, the possession of bombs may be one of several means to the end; in the latter case, it is the offence itself, provided the necessary intent is proved. Such an act of possession of bombs may be said to constitute an offence falling within two separate definitions of the law, but, though the Subdivisional Magistrate might have enquired into two such offences, he was unable to do so, and the Additional District Magistrate had jurisdiction by reason of the complaint made to him and the Government consent to that jurisdiction being exercised.
9. A distinction is also sought to be made between the taking cognizance of an offence and proceeding to try it, the latter expression being used in Section 7 of the Explosive Substances Act. The distinction, if it can exist, disappeared when the Additional District Magistrate took cognizance and proceeded to enquire into the case. The first contention, therefore, is over-ruled. We hold that the present case was properly initiated and the trial of the appellant was a good trial.
10. The second contention is equally devoid of foundation. The search was conducted, not under the Code of Criminal Procedure, but under Rule 32 of the Government Rules under the Indian Explosives Act, 1884 (see pp. 396, 397, Vol. IV, General Statutory Rules and Orders, Ed. 1910). At the search, on the 5th September 1910, police officers of superior rank were present, including the Superintendent of Police him-self. The proceedings, therefore, were legally conducted. Similarly, although the First Information did not form the basis of the case now pending before the Subdivisional Magistrate, it was really the earliest information in the case, because no offence had been disclosed until the search resulted in the finding of the bombs and other articles. We have not treated the First Information as evidence against the appellant for the reason that the present case was otherwise initiated, on the 9th September 1910, four days later. It may be added, with reference to Section 529(e), Section 530(k), and Section 531 of the Code, that, unless it appears that the proceedings wrongly held have, in fact, occasioned a failure of justice,-they cannot be set aside. This case would have been committed for trial even if enquired into by the Munshigunge Magistrate, and the same Sessions Court would have tried it. In Sonatun Dass v. Gooroo Churn Dewan (1874) 21 W.R. Cr. 88 where objection to the jurisdiction of a court was not seriously taken, and the petitioner failed to show that he had been in any way prejudiced, the High Court declined to interfere. In the case before us the objection was, for the first time, taken in this Court....
11. After discussing the merits of the case, their Lordships continued:
The next question is whether the lodging and its contents were in the conscious possession of the appellant. It has been already stated that he had been residing there for some time before, and up to the 5th September 1910. It is in evidence (page 112) that the co-accused Jyotindra actually gave Mr. Dundas a dao wherewith to force open the box (Ex. 1): this he would hardly have done if he had been aware of the dangerous contents of that box. From this fact, and from the fact that, in consequence of information received from the co-accused, the appellant, Lalit, was immediately pursued and brought, the inference seems a fair one to make that the appellant was then the responsible person in possession of the lodging. The correspondence found in the principal hut also shows that the appellant had his residence there, but, before we examine the papers, it will be necessary to consider the evidence of the three witnesses who speak to the handwriting of the appellant.
12. The three witnesses to the handwriting of the appellant are Nos. 7, 8 and 9. Of these, Doctor Ajodhya Ram Deb Roy saw the appellant writing because he used to read with Mariosha, the distant nephew of the witness, who, it may be noted, is the brother-in-law of Amulya Krishna De, to whom the label, on the canister of bombs, purported to have been addressed. The witness was not in a very favourable position to scrutinize the handwriting of the appellant, but he used to 'see' (this may mean 'examine,' but the point is not clear) the boy's answers to examination papers. We are not disposed to place implicit reliance on the evidence of Doctor Ajodhya, but of his truthfulness we entertain no doubt. The next witness, Pandit Mukundananda Siroratna, is an entirely satisfactory and, admittedly, a. truthful, 'witness. He is the Head Pandit of the school where the appellant studied, and the appellant's work came directly under his observation. He is a careful and cautious man, and we have no hesitation in accepting his opinion as to the Bengali handwriting of the appellant. He has identified the principal documents, found at the house search, as having been written by the appellant. The third witness, Manomohan Dey, describes himself as a talukdar and servant. He says he saw the appellant write at the house of Hari Churn Ghose who is the mother's first cousin's son of the witness, and at the house of the witness himself whose nephew's private tutor used to instruct the appellant. The evidence of Manomohan Dey is no better than that of Doctor Ajodhya.
13. We have compared, for ourselves, the various exhibits in this case; among other resemblances, the shape of the 'M' is very characteristic, but we do not base our judgment on any such resemblances unless they receive support from the evidence of the witnesses, particularly that of the Pandit. The identity of the handwriting in this case elucidates two matters, (a) the conscious possession, and (b) the criminal intent, of the appellant, and, in this connection, we may refer to two reported cases.
14. In Barindra Kumar Ghose v. Emperor (1909) I.L.R. 37 Calc. 467, 504 the learned Chief Justice observed: 'But to be an admission it is not necessary that a document should have been written by a 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 recognized 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 discounted.'
15. In other words, as explained in Wright v. Tatham (1838) 5 Cl. & Fin. 670, 702 the question is whether the person (here, the appellant) has in any manner identified himself with, or, in other words, has by any act, speech, or writing, manifested an acquaintance with and knowledge of the contents of all or any of these letters. The rule would apply more strongly where, as here, some of the papers and letters were received by, and others written by, the person against whom they are sought to be used.
16. The papers exhibited in this case may be considered in eight groups:
(i) There is the label (Ex. Ill) oil the canister containing the eleven bombs. The Pandit (witness No. 8) deposed that this paper is in the handwriting of the appellant. We accept his opinion, though we should hesitate to arrive at any independent conclusion in the matter on the comparison of handwritings we have made for ourselves. The writer of Ex. Ill intended to mislead anyone into whose hands the canister might fall. It was known to the appellant that his former schoolfellow, Amulya, whose name appears as the addressee on the label, was dead; yet he prefixed sree to his name. Similarly, the mention of Dacca, as the place from which the person 'Kamini' was sending the canister, was calculated to conceal the residence of the appellant at Munshigunge, in the event of the article being discovered on its way to some other destination.
(ii) The next group consists of the signatures of the appellant on his two books. These are admitted, and have been used for the purpose of comparison with his other alleged signatures in English.
(iii) We come now to the 29 post-cards and two letters on the wire-tile and marked Ex. VIII-1 to VIII-81. All these are, admittedly, genuine, and, being for the most part communications to the appellant, they indicate that he was living in the basha where they were found. Exhibit VIII-5, however, is an application by the appellant for a post in the Tramway Company. Exhibit VIII-6 is a letter to one Monmohun Sutradhar which is couched in very guarded language and bears the construction that the appellant and his friends were engaged in some secret enterprise; thus, the writer says,--'I will shortly join the work of which I told you. See that you do not waver. Moreover, procure, if you can, a few articles for yourselves which you will carry in your own hands. The procession will be out on the 13th-14th.' No attempt has been made to assign any innocent meaning to this mysterious missive, and its presence among the private correspondence of the appellant is significant of the life he was leading.
(iv) Then there are the six documents which were found under the mat of the taktaposh. Of these, Ex. XVII--XIX were written by the appellant, but not despatched. Ex. XIX betrays much anxiety and restlessness on the part of the writer: it is impossible that such a letter could have been manufactured for the purpose of implicating the appellant in the serious offence for which he has been tried: it is a private letter on personal and domestic matters. The others, Ex. XVII and XVIII, are on the same lines as the six post-cards which witness No. 6 (the sub-postmaster of Kathadia Simulia) suspected and of which he kept a copy. This part of the case will be considered later on; but, here, it may be observed that if Ex. XVII and XVIII were forged, the six post-cards, also, which are missing, or, at any rate, one of them, might equally well have been prepared to bolster up the story of the sub-postmaster. There remain Ex. XX and XXI, which are mere schoolboy exercises: it would have been absurd and impracticable to manufacture such writings: also, Ex. XXII, a letter addressed to the appellant at Munshigunge: it refers to marriage as being full of responsibilities and reproaches him for his wandering habits. This paper also could not have been made up for the purposes of a criminal charge.
(v) Eight important papers were discovered in a fold of the hogla mat under which the six documents, already noticed, were found. They were in a packet, but not tied up. On Ex. IX were written some bomb formulae, with a diagram. The eleven bombs were not of the description indicated in this paper, and the inference is that the appellant obtained the bombs from some one else working on a different system. The Pandit (witness No. 8) identifies the writing on Ex. IX as that of the appellant. Exhibit X is a simple cypher code, but it is not complete in the matter of vowels, and there is no evidence that it was ever used or could be effectively used. Exhibits XI--XIII are plans of houses which the Pandit cannot attribute to the appellant, but which are highly suspicious and have not been accounted for. It is a fair inference that the houses delineated were to be made the object of some attack. The next, Ex. XIV, is identified by the Pandit as in the writing of the appellant: it contains a list of 13 names with the disposition of these persons when engaged in a dacoity. On the same paper is a seditious poem as to which the Pandit is certain that it was written by the appellant. This, also, could not have been made up for the purposes of a criminal case. The same remark applies, with greater force, to Ex. XV and XVI, which are post-cards addressed to the appellant. Their presence among the other papers is most significant: they are, no doubt, mysterious, and upbraid the appellant for being absent on an important occasion, but it would have been idle, if not impossible, to forge such writings to be introduced among the other papers.
(vi) Three post-cards from the appellant, Ex. XLII--XLIV, were found in the house of Jiban Krishna Bhadra, one of the names in Ex. XIV, the surname, Bhadra, being prefixed in the address on Ex. XLII. This peculiarity, also, appeared on the six post-cards spoken to by the sub-postmaster (No. 6) whose evidence we shall presently examine. Exhibit XLII contains instructions how to find the Munshigunge lodging of the appellant, which was evidently a kind of meeting place.
(vii) Two letters, Exhibits XLVI and XLVII, were found in the house of Ramani Mohan Ghose, another of the names in Exhibit XIV. In Exhibit XLVII the surname Ghose is prefixed as in Exhibit XLII. These letters were, admittedly, written by the appellant: in Exhibit XLVII the writer speaks of a great danger approaching.
(viii) The last group consists of two letters, Exhibits 7 and 8 (Exhibit VIII-17 being a reply;, written by the appellant to the pleader Sailendra Chandra Banerjee, one of the search witnesses (No. 20) who produced them.
17. In our opinion the papers we have just examined satisfy the requirements explained in the reported cases to which we have alluded. The appellant has t been shown to have identified himself with all the papers found at the house search of his premises. The argument based on the collocation of the various papers admits of no satisfactory answer in favour of the appellant. The contention on his behalf, that the incriminating papers were manufactured for the purposes of this prosecution, is untenable, and we have no hesitation in rejecting it as opposed to the evidence.
18. We proceed to consider the evidence of the sub-postmaster (witness No. 6) who has deposed that, on the morning of the 4th September, he received six post-cards addressed in the same hand, and in the same style, to certain persons, and inviting them to join the writer (signing himself as ' Choudhuri') in some expedition. The witness says he made a copy Exhibit XXXIV) of Ave of the post-cards and sent a copy of that copy to the Munshigunge thana through the village watchman. The paper said to have been so sent runs thus (Exhibit 6):
Five letters to the following effect addressed to the undermentioned persons have been distributed at Rautbhog. 1 Gropal Krishna Basu; 2 Manasha Charan Biswas; 3. Ramani Mohan Ghose; 4. Jiban Krishna Bhadra; 5. Bimala Charan Deb.
I have told everything at the interview. I have fixed Monday next for our auspicious work. You will therefore oblige me by coming to my place before evening on that day and joining in the auspicious work and giving encouragement. To write to you in detail is but to waste time.
19. It is manifest that Exhibits XVII and XVIII are to the same effect as the copy we have reproduced. The names of five out of the six addressees appear in Exhibit XIV (the disposition list for a dacoity). If the story told by the sub-postmaster be true, the appellant sent intimation to his associates to join him in the perpetration of some dacoity on the night of the 5th September 1910. Exhibits XVII and XVIII were never despatched. The former seems to be unduly detailed for a circular letter, but it would appear from its wording that the writer, the appellant, was not, by any means, certain that his friends would come when wanted. He beseeches Jiban Krishna Bhadra not to disappoint him and to bring others : he questions the strength of mind of his friends. The second letter, Exhibit XVIII, is much shorter, as follows:
My dear Ghose,--Do you remember what I said to you? The day fixed for that work is Monday next. Come just before dusk. Don't forget.
20. It may be argued that Ex. XVIII was a draft of which the police took advantage and concocted the story of the six post-cards; but, if so, why was not at least one post-card produced and supported by the testimony of the sub-postmaster who, on this hypothesis, was in league with the police. If wholesale forgeries where being committed, one more would not have made any difference. The absence of the appellant at the moment when the search was begun may be accounted for by his going to meet the friends he expected at Katakhali (see Ex. XVII). The slipshod procedure of the sub-postmaster in communicating the intelligence to the police may be explained by his being a postal official bound neither by rule nor inclination to assist the police. His attitude was one of benevolent neutrality. The six post-cards were not in themselves seditious: the sub-postmaster was obliged to deliver them to the addressees. We have read his evidence carefully: it bears the impress of truth.
21. Among the letters we have mentioned, two were written by the appellant to the search witness (No. 20) Sailendra Chandra Banerjee (Ex. 7 and 8), and one, Ex. VIII--17, was a reply to the appellant. Upon these and the evidence of Sailendra Babu is founded the argument which appears to have chiefly weighed with the Assessors. There is no doubt that Sailendra Babu was a good friend to the appellant who, after a disagreement with the Head Master of the Rautbhog school, wished to enter the first class of the school owned by Sailendra Babu and went so far as to promise to get other boys to join the latter establishment. Sailendra Babu answered diplomatically (Ex. VIII-17). The appellant, however, did not succeed in entering the school of his desire. Sailendra Babu had reason to suspect the loyalty of the appellant, and he warned him that his lodgings might be searched and advised him to leave Munsbigunge at once. But, in point of fact, the appellant did not go away, though he was traced to Dacca (page 408), on or about the 27th August, a week before the search took place. Nothing is more natural than to suppose that the appellant was acting under orders, and that he had brought the box, with the canister of the eleven bombs, from Dacca, a day or two before the 5th September. The box was temporarily in the lodging of the appellant. The bombs were of a different formula and not of the kind which would have been prepared in accordance with the directions in Ex. IX. The appellant, though watched, was not being 'shadowed.' From the information received, the police had reason to believe that bombs and suspicious papers would be discovered: hence the search. The contention that the appellant would not have dared, or found opportunity, to conduct his operations from a house close to the Munshigunge police station is not conclusive, for, in the case of Barindra Kumar Ghose v. Emperor (1909) I.L.R. 37 Calc. 467 the accused had their centres in the town and suburbs of Calcutta, and it should be borne in mind that the premises of the appellant were situated in the quarters inhabited by respectable persons and resorted to by bond fide students. The vernacular saying is proverbial that 'it is always darkest under the lamp.' After the most anxious consideration, we have come to the conclusion that the argument of improbability which influenced the Assessors is not sound. Their other reasons have been considered in the course of this judgment.
22. From all that we have said, it follows that this appeal must be dismissed. The conviction and sentence are affirmed.