Lawrence H. Jenkins, C.J.
1. The appellant, Ashok Chandra Nandy, having died since the institution of these appeals, there are at present before the Court 18 appellants, all of whom have been convicted under Chapter VI of the Indian Penal Code of offences against the State. Two of the appellants, Barindra Kumar Ghose and Ullaskar Dutt, were convicted under Sections 121, 121A and 122 of the Indian Penal Code and sentenced to death; eight of them, i.e., Indra Nath Nandi, Upendra Nath Banerjee, Bibhuti Bhusan Sircar, Hrishikesh Kanjilal, Sudhir Kumar Sircar, Sailendra Nath Bose, Hem Chandra Das and Barendra Chandra Sen, were convicted under Sections 121, 121A., 122 of the Indian Penal Code, and sentenced to transportation for life; Abinash Chandra Bhattacharjee was convicted under Sections 121 and 121A of the Indian Penal Code, and sentenced to transportation for life: Indu Bhushan Roy was convicted under Sections 121A and 122 and sentenced to transportation for life; Pares Chandra Maulik, Sisir Kumar Ghose and Nirapada Roy were convicted under Sections 121A and 122 of the Indian Penal Code and sentenced to transportation for ten years; Sushil Kumar Sen and Bal Krishna Hari Kane were convicted under Section 121A of the Indian Penal Code and sentenced to seven years' transportation, and Krishna Jiban Sanyal was convicted under Section 121A of the Indian Penal Code and sentenced to one year's rigorous imprisonment. On all, except the last three, the additional penalty has been imposed of forfeiture of their property. The appellants were so convicted and sentenced by the Additional Sessions Judge of Alipore, who heard the case with Assessors. Both the Assessors considered the appellants, Barindra Kumar Ghose, Ullaskar Dutt, Upendra Nath Banerjee, Bibhuti Bhusan Sircar, Hrishikesh Kanjilal, Hem Chandra Das and Indu Bhushan Roy guilty of an offence under Section 122 of the Indian Penal Code, and to one of them it appeared that another of the appellants, Pares Chandra Maulik, was guilty under the same section. But in no other case did either Assessor deem the guilt of the accused to be established on any of the charges preferred against them, though one of them considered Abinash guilty under Section 124A.
2. The Prosecution story may be briefly stated. According to it, the appellant, Barindra Kumar Ghose, has throughout been the master mind; he conceived the scheme, he designed the means, and he inspired the work. As far back as 1903 or 1904 he began what he believed to be his mission of preaching throughout Bengal the independence of India. Then he returned for a while to Baroda, where his brother, Arabinda Ghose, was a Professor in the Gaekwar's College. In 1905 came the partition of Bengal, which, according to the case for the Crown, was 'unquestionably a landmark in this attempted revolution,' and was used in its promotion. This is how it has been described by the learned Counsel for the Crown in its bearing on the present case. 'Those who used this engine regarded it from this point of view--that it was a line of demarcation between a population who were the same in kindred, faith, colour, caste, creed and sympathies. They said an unnecessary line of demarcation had been drawn, and that the effect of it had been to sever people who had a common point of view.' Then, after a reference to the 'Jugantar' newspaper which has played a large part, it is said, in preparing the minds of the youth of Bengal to receive the insidious doctrines of rebellion, he proceeded: 'The partition would, therefore, lend an additional tone to their invectives in this paper, and from that point of view they could understand why it was that the 16th October had always been regarded as a day of humiliation and prayer. Those who used it had recognised the full value of the partition as a fresh lever to work on the minds of the people.' And so, according to the theory of the Crown, the partition induced a state of mind in the young men of Bengal ready to receive the doctrines of independence which the Jugantar incessantly preached. Then, it is said, Barin, who had thus dexterously utilized the opportunities that came in his way, began a scheme of recruitment, whereby he sought to attract to himself and his purposes a band of youths inspired with deep religious fervour, and indoctrinated with the principles of absolute discipline, self-negation and intense love of the mother country, which would lead them willingly to lay down their lives at what they were taught to regard as a paramount call of duty. Ultimately, the prosecution case is, a society was created on these lines, having for its aim the overthrow of the present form of Government, and ready to effect its purpose even by waging war against the King. This society, it is said, had its head-quarters at No. 32, Muraripukur Road in the suburbs of Calcutta, to which I will hereafter refer as the Garden, and it also had, what have been termed, 'places of conspiracy' in various parts of Calcutta, and at a remote country house in the neighbourhood of Baidyanath called Seal's Lodge.
3. We are asked to hold that the appellants were all members of this society, and joined in this unlawful enterprise; that they collected arms and ammunition with the intention of waging war against the King; that they with others, known and unknown, conspired to wage war against the King or to deprive him of the sovereignty of British India; and, finally, that they actually waged war against the King.
4. The period covered by the charge is described therein as 'on or about twelvemonths preceding the 15th of May 1908,' and the scene of the offences charged is laid at 'various places in Bengal including 32, Muraripukur Road.'
5. It is said that the police came to hear of the society and its workings first in October 1907, and then in January 1908. In the month of March 1908 the work of watching the members of the society began, and thereafter a close observation was kept on their movements between various places, and in particular the Garden, 15, Gopi Mohun Dutt's Lane, 134, Harrison Road, 4, Harrison Road, 23, Scott's Lane, 38-4, Raja Nava Krishna Street, and 48, Grey Street, all of which, except the Garden, are in the town of Calcutta. The action of the police was precipitated by the murder, on the 30th of April 1908, at Mozufferpore, of two ladies, Mrs. and Miss Kennedy, by the throwing of a bomb, the culprits being Khudiram Bose and Profulla Chaki, of whom the first has paid the extreme penalty of the law while the other escaped punishment by committing suicide as he was on the point of arrest. This shocking outrage rendered delay no longer possible, and after a conference of leading officers, the police, in the early morning of the 2nd of May, armed with search warrants, entered the Garden and the several places of conspiracy in Calcutta, arrested the inmates, and took possession of the documents and articles they found.
6. Of the appellants, Barindra Kumar Ghose, Indu Bhushan Roy, Ullaskar Dutt, Upendra Nath Banerjee, Sisir Kumar Ghose, Pares Chandra Maulik and Bibhuti Bhusan Sircar were arrested at the Garden; Hem Chandra Das at 38-4, Raja Nava Kissen Street; Nirapado Roy at 15, Gopi Mohan Dutt's Lane; and Abinash Chandra Bhattacharjee and Shailendra Nath Bose at 48, Grey Street.
7. The remaining seven appellants were subsequently arrested, Sudhir Kumar Sircar on the 10th of May at Khulna, Hrishikesh Kanjilal on the 10th of May at Chatra, Barendra Chandra Sen and Sushil Kumar Sen on the 15th of May at Baniachang in Sylhet, Krishna Jiban Sanyal on the 16th of May at Kansat, Indra Nath Nandi on the 23rd of June at 37, College Street, Calcutta, and Bal Krishna Hari Kane on the 20th of July at Nagpur. On the 4th of May Barin, Indu Bhushan Roy, Ullaskar Dutt, Upendra Nath Banerjee and Bibhuti Bhusan Sircar made confessions to Mr. Birley, the District Magistrate of the 24-Parganas; on the 11th of May Sudhir Kumar Sircar, and on the 16th of May Krishna Jiban Sanyal, made statements to him. Mr. Birley purported to record all these under Section 164 of the Criminal Procedure Code.
8. In support of the appeals before us the appellants have urged that the convictions are bad in law, and further that they are not justified by the evidence on the record. In a case so voluminous innumerable arguments would naturally arise on one side and the other, and though many from their transient character must pass unnoticed in this judgment, all have been carefully considered and weighed. First, then, I will deal with the several legal objections that have been advanced against the convictions now under appeal.
9. I need not discuss at length the contention that the right to trial by jury could not be taken away by the Criminal Procedure Code. The argument rests on the proviso to Section 22 of the Indian Councils Act, 1861, whereby it is declared that the Governor-General in Council shall not have the power of making any law which may affect any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom.
10. But the point has been determined adversely to Mr. Das' contention in a recent decision of this Court by which we are bound; therefore, we must overrule this objection.
11. The next objection taken is that Barin being a European British subject the Magistrate was bound to commit him to the High Court in accordance with the provisions of Section 447 of the Criminal Procedure Code, and that the rest of the accused should have been similarly committed in compliance with Section 452.
12. Criminal proceedings against European British subjects are regulated by Chapter XXXIII of the Criminal Procedure Code, and provision is made in that Chapter for the tribunal before which a person answering that description can be tried and as to the sentence that may be passed. It is conceded by the Crown that it became apparent on the face of the proceedings in the course of the inquiry before the Committing Magistrate that Barindra Kumar Ghose was a European British subject, but it has been held that he waived his right to be treated as such. This, it is contended by Mr. Das, is erroneous.
13. Section 447 provides that: '(i) When an European British subject is accused of an offence before a Magistrate, and such offence cannot, in the opinion of such Magistrate, be adequately punished by him, and is not punishable with death or with transportation for life, such Magistrate shall, if he thinks that the accused ought to be committed, commit him to the Court of Session, or, in the case of a Presidency Magistrate, to the High Court.'
14. (ii) 'When the offence which appears to have been committed is punishable with death or with transportation for life, the commitment shall be to the High Court.'
15. Section 449(i) is in these terms: 'Notwithstanding anything contained in Section 31, no Court of Session shall pass on any European British subject any sentence other than a sentence of imprisonment for a term which may extend to one year, or fine, or both.'
16. Section 452 enacts that: 'In any case in which an European British subject is accused jointly with a person not being an European British subject, and such European British subject is committed for trial before a High Court or Court of Session, such subject and person may be tried together, and the procedure on the trial shall be the same as it would have been had the European British subject been tried separately:
Provided that, if the European British subject requires under Section 450 to be tried by a mixed jury, or by a mixed set of assessors, and the person not being an European British subject requires that he shall be tried separately, the latter person shall be tried separately in accordance with the provision of Chapter XXIII.
17. But then it is provided by Section 453 that: (i) 'When any person claims to be dealt with as an European British subject, he shall state the grounds of such claim to the Magistrate before whom he is brought for the purpose of the inquiry or trial; and such Magistrate shall inquire into the truth of such statement, and allow the person making it a reasonable time within which to prove that it is true, and shall then decide whether he is or is not an European British subject, and shall deal with him accordingly. If any such person is convicted by such Magistrate and appeals from such conviction, the burden of proving that the Magistrate's said decision was wrong shall lie upon him.'
18. (ii) 'When any such person is committed by the Magistrate for trial before the Court of Session, and such person before such Court claims to be dealt with as an European British subject, such Court shall, after such further enquiry, if any, as it thinks fit, decide whether he is or is not an European British subject, and shall deal with him accordingly. If he is convicted by such Court and appeals from such conviction, the burden of proving that the Court's said decision was wrong shall lie upon him.'
19. (iii) 'When the Court, before which any person is tried, decides that he is not an European British subject, such decision shall form a ground of appeal from the sentence or order passed in such trial.'
20. While under Section 454(i), 'If an European British subject does not claim to be dealt with as such by the Magistrate before whom he is tried or by whom he is committed, or if, when such claim has been made before, and disallowed by, the committing Magistrate, it is not again made before the Court to which such subject is committed, he shall be held to have relinquished his right to be dealt with as such European British subject and shall not assert it in any subsequent stage of the same case.'
21. (ii) 'Unless the Magistrate has reason to believe that any person brought before him is not an European British subject, the Magistrate shall ask such person whether he is such a subject or not.'
22. On the strength of these sections, it is contended (i) that Barindra Kumar Ghose could only be committed to the High Court, (ii) that his co-accused too could only have been so committed, (iii) that there could be no waiver of a want of jurisdiction apparent on the face of the proceedings, (iv) that Sections 453 and 454 could have application where, as here, the status of European British subject is manifest and not open to doubt, (v) that there has been no waiver by Barindra, (vi) that if there was a waiver in fact, then it was not after he was made fully acquainted with all that he was giving up, and (vii) that in any case there was no waiver by his co-accused.
23. Though I recognise the force of Mr. Das' arguments, I hold that on the first four points we are concluded by the decision of a Bench of this Court in In the matter of Quiros (1880) I.L.R. 6 Calc. 83, and I do not think what was then said can be regarded as mere obiter dictum. What is obiter dictum is sometimes difficult to decide, but a valuable guide to the solution of this difficulty is furnished by Lord Halsbury L.C. in Watt v. Assets Co.  A.C. 317, 330 at page 330, where he said--'When a learned Judge is giving his views why this or that does not come within the meaning of the law which makes a thing inoperative, and when he distinguishes the case before him by pointing out there was no fraud, and, therefore, the fraud imputed did not exist, I very much doubt whether that is one of those things which can be described as a mere obiter dictum. It is part of the law which is guiding his judgment and part of the law he is bound to expound in the judgment he is pronouncing.' In the light of these remarks, I am of opinion that what was said in the course of the judgment in In the matter of Quiros (1880) I.L.R. 6 Calc. 83 is more than mere obiter dictum: it was an exposition of the law necessary for the judgment then pronounced. Moreover, what was then said has been repeatedly adopted as the basis of subsequent decisions; and we further find that since the judgment in In the matter of Quiros (1880) I.L.R. 6 Calc. 83 the language on which it was based has been repeated in the Criminal Procedure Codes of 1882 and 1898, and this is a legislative recognition which we cannot disregard. In the light of this decision, I am of opinion that Barin could relinquish his right to be dealt with as a European British subject, and on the facts I hold that he actually did relinquish this right. From this it follows that the plea is of no avail either to Barin or his co-accused, and that the Court of Session had complete jurisdiction to dispose of the case.
24. It is next argued that there was no jurisdiction to take cognizance of the several offences of which the accused have been found guilty, that is to say, of offences under Sections 121, 121A and 122 of the Indian Penal Code.
25. It is provided by Section 196 of the Code of Criminal Procedure that no Court shall take cognizance of any offence punishable under Chapter VI of the Indian Penal Code.... unless upon complaint made by order of, or under authority from, the Governor General in Council, the Local Government, or by some officer empowered by the Governor General in Council in this behalf. The authority in this case has proceeded from the Local Government. This objection has been taken on behalf of the appellants belonging to what has been called the first batch, against whom a complaint was preferred under the order or authority of the Local Government on the 17th of May 1908 (Exhibit 1). It is in these terms--'Whereas it has been made to appear to His Honour the Lieutenant-Governor of Bengal that there is reason to believe that during a period commencing from about the 16th October 1905 to date at Maniktollah (32, Muraripukur Road), Calcutta, and other places, the following persons have committed offences punishable under Sections 121A, 122, 123 and 124 of the Indian Penal Code, Babu Purna Chunder Biswas, Inspector of Police, Criminal Investigation Department, Bengal, is hereby ordered and authorised by His Honour the Lieutenant-Governor of Bengal, under the provisions of Section 196 of the Code of Criminal Procedure, to prefer complaint against and to prosecute these persons, namely '[then after setting out a list of names in which are included the names of the appellants in the first batch, the document proceeds]' for the said offences under Sections 121A, 122, 123,124 of the Indian Penal Code, or under any other section of the said Code, which may be found to be applicable to the case.
By order of
His Honour the Lieut.-Govr. of Bengal,
17th May 1908. Chief Secy. to the Govt. of Bengal.'
26. On the 19th of May a complaint was preferred in the form of an allegation made in writing to Mr. Birley, and after naming (amongst others) the appellants in the first batch, the complainant Purna Chunder Biswas submitted his complaint 'charging the members of the Secret Society under Sections 143, 145, 150, 157, 121, 121A, 122, 123 and 124, of the Indian Penal Code.' On the same day Inspector Purna Chunder Biswas was examined on solemn affirmation on his complaint, and stated that sanction had been given to him by the Government of Bengal to prosecute certain persons under Sections 121A, 122, 123, 124 of the Indian Penal Code. Then, after alleging that he complained against the 33 persons named in the Local Government's order and describing their several arrests, he proceeded in these terms: 'These persons are all accused of organising a gang for the purpose of waging war against the Government and overawing the Government by means of criminal force.'
27. On the strength of this authority or order and complaint the Magistrate, after he had completed his enquiry, committed these appellants for trial to the Court of Session for offences under Sections 121, 121A and 123 of the Indian Penal Code.
28. In the Court of Session objection was taken on behalf of the accused to the charge under Section 121 of the Indian Penal Code, and thereupon Counsel for the prosecution informed the Court that he would file a fresh sanction, as he called it, in respect of that section, though he did not admit that the original sanction was insufficient. He subsequently produced what was described as a sanction given by the Local Government under Section 196 of the Criminal Procedure Code, and in compliance with his application the Court framed charges under Sections 121 and 122 of the Indian Penal Code. The sanction here referred to was an order and authority in the terms of that of the 17th of May, which I have already cited, save that it mentioned Section 121 of the Indian Penal Code in addition to the other sections set forth in the earlier authority. It was filed on the 19th of October 1908.
29. Two points thus arise: first, was a complaint under Section 121 of the Indian Penal Code authorised by the Local Government; and, secondly, was a complaint in fact preferred under that section
30. Section 196 of the Criminal Procedure Code reserves to the Local Government the power of determining whether cognizance shall be taken by the Court of any offence punishable under Chapter VI of the Indian Penal Code except Section 127. Seeing that this Chapter deals with offences against the State, the policy of this safeguard is manifest; the maintenance of this control is of the highest importance; and it is beyond the competence of the Local Government to delegate to any other body or person this controlling power and the discretion it implies. The question whether action should be taken under Chapter VI is more than a matter of law; considerations of policy arise, and these can only be determined by the authorities specially designated in the section.
31. It further appears to me to be the true implication of Section 196 that the judgment of the Local Government should be specifically directed to the particular sections of Chapter VI in respect of which proceedings are to be taken, and that the order or authority should be preceded by, and be the result of, a deliberate determination that proceedings should be taken in respect of a particular section or particular sections of the Chapter and no other.
32. It would, I think, be opposed to the true intendment of Section 196 for the Local Government by its order to give its legal or other advisers a roving power to determine under what sections of the Chapter proceedings should be taken, and to abandon to them the discretion and responsibility that properly belong to itself; and I should hesitate to take a view of this section that might permit the Government to entrust to the zeal of an advocate, or of those by whom he may be instructed, the determination of the serious questions involved.
33. To turn from these general observations to the language of the order of the Local Government, can it be fairly said that it permits a complaint of an offence under Section 121 of the Indian Penal Code?
34. This order was passed on the 17th of May, and at that time some of the most prominent of the persons arrested had made their confessions; and though the Local Government had not before it all the evidence that was afterwards adduced, it must have been aware of the facts on which reliance is now placed as constituting an offence under Section 121. And yet the order does not specify that section. It recites that it had been made to appear to His Honour the Lieutenant-Governor of Bengal that there was reason to believe that the appellants (among others) had committed offences punishable under Sections 121A, 122, 123 and 124 of the Indian Penal Code. It had not been made to appear that there was reason to believe that they had committed offences under Section 121. Then, again, the order does not mention Section 121, but only those specified in the recital. Can it in these circumstances be reasonably contended that on a true reading of this order it was intended to cover Section 121 of the Indian Penal Code? I think not. It is not as though this section had been overlooked, for it is the leading section of the Chapter and is concerned with the most serious offence of all. I cannot read the recital to the order without coming to the conclusion that it had not been made to appear to His Honour the Lieutenant-Governor of Bengal that there was reason to believe an offence had been committed under that section, nor can I suppose that this view was not the result of careful deliberation.
35. In the face of these facts, I decline to impute to the Local Government the sense of irresponsibility which is involved in the argument advanced by counsel that an authority was intended to be given in respect of an offence under Section 121 which, in the view of that Government, there was no reason to believe had been committed. It is true that the order winds up with the words 'or under any other section of the said Code which may be found to be applicable to the case.' But found by whom? The order does not explain. It can hardly mean by the Court, as it relates to the complaint; and if it means found by anyone other than the Government, then it involves a delegation which cannot be sustained.
36. It is to be noticed for what it is worth that, in later documents, the Local Government expressly mentioned Section 121, and that in his sworn statement which followed on the Local Government's order, it is distinctly said by the complainant that sanction had been given to the complainant by the Government of Bengal 'to prosecute certain persons under Sections 121A, 122, 123, 124, Indian Penal Code,' and no suggestion is made of an authority to prosecute under Section 121. Moreover, Mr. Norton, after his argument came to the notice of the Local Government, informed us that he was instructed to state that the Local Government did not desire him to argue that it was its intention to include Section 121 of the Indian Penal Code in their order of the 17th of May. For the foregoing reasons I hold that the order of the 17th of May did not authorise a complaint under Section 121 of the Indian Penal Code.
37. But then it has been argued by Mr. Norton that any defect in the procedure of the Magistrate's Court has been cured by a sanction obtained from the Local Government while the case was before the Court of Session. But under Section 196 the only order or authority within the competence of the Local Government is one that permits a complaint; the order actually passed was that there should be a complaint; and in fact it appears that no complaint was made. It is clear, therefore, that the so-called sanction on which Mr. Norton relied before the Court of Session, and has again relied here, is absolutely valueless.
38. Finally, it is contended that any defect in the commitment was cured by Section 532 of the Criminal Procedure Code, and as authority for this, reference has been made to Queen-Empress v. Morton (1884) I.L.R. 9 Bom. 288, Queen-Empress v. Bal Gangadhar Tilak (1897) I.L.R. 22 Bom. 112. The decision of Queen-Empress v. Morton (1884) I.L.R. 9 Bom. 288 turned on a consideration of Sections 197 and 532, and to appreciate what was actually determined, regard must be had to the terms of the first of these sections, which differs materially from Section 196. Section 197 makes the power of cognizance dependent on sanction, and the defect in Queen-Empress v. Morton (1884) I.L.R. 9 Bom. 288 was that there was no sanction for the magisterial enquiry, so that, in committing the accused to the High Court, the Magistrate purported 'to exercise powers duly conferred which were not so conferred.' The High Court, however, had (apart from this defect) power to take cognizance of the offence, as before the trial the necessary sanction had been obtained.
39. Here, however, there has been a want of jurisdiction not only in the Magistrate, but also in the Court of Session, for at no stage have the conditions of Section 196 been satisfied. It is true that in Queen-Empress v. Bal Gangadhar Tilak (1897) I.L.R. 22 Bom. 112, a learned Judge holding the High Court Sessions in Bombay expressed an opinion that the decision in Queen-Empress v. Morton (1884) I.L.R. 9 Bom. 288 was binding on him, though he was then concerned with a case to which Section 196 was applicable. But it is to be noticed that this was the decision of a single Judge given in the course of argument and without adverting to the fundamental distinction between the two sections. To borrow the language of Sir Barnes Peacock in Queen-Empress v. Nobodeep Chunder Gossamee (1868) 16 W.R. Cr. 71n, 73n, the decision in Queen-Empress v. Bal Gangadhar Tilak (1897) I.L.R. 22 Bom. 288 was 'in the nature of a nisi prius decision, by which Courts sitting in Banco do not consider themselves bound.' Moreover, a different view has been taken of the position by a bench of the Punjab Chief Court in Sham Khan's case (1890) Punj. R., Cr. J. No. 16. The result then is that the Court of Session had no jurisdiction to convict the appellants in the first batch under Section 121. But I think it right to add that this conviction does not fail merely on the lack of jurisdiction, for on the merits too I should have held that no offence under that section has been proved.
40. In respect of the offences under Sections 121A and 122 of the Indian Penal Code, I hold there was a good and sufficient authority under Section 196 of the Criminal Procedure Code, and an earlier decision of a Bench of this Court furnishes an answer to the objection to the sufficiency of the signature of the Chief Secretary on the document containing the authority: Apurba Krishna Bose v. Emperor (1907) I.L.R. 35 Calc. 141.
41. Though it was at the outset objected that the charges were bad for multifariousness, in the end this was not pressed, and I think rightly; for, though the charges as ultimately framed are not happily expressed, I think on a fair reading of them they merely purport to place before the Court different aspects of the same transaction. And I further think we should be applying to the charges, as ultimately framed, too strict a reading and too limited a meaning, if we were to give effect to Mr. Das' argument that the fourth head is limited to a conspiracy to wage a war which, according to the first head, had been already waged, or if we were to limit the fifth head by reference to the language of the fourth.
42. As in the view I take, the charge under Section 121 cannot be sustained. Mr. Das' objection that he was not allowed to cross-examine the witnesses on the charges as re-framed falls to the ground, for on his own statement this objection would have no force in reference to the charge under Section 121A, and it is with that section alone we are now concerned. I also hold that the objection to the proceedings on the ground of misjoinder of parties is not well founded and must fail.
43. Having thus disposed of the several objections to the legality of the present proceedings, I will deal with the merits; but before discussing the details of the individual cases, it will be convenient to take up certain general questions that call for consideration and decision.
44. And, first, I will deal with the objection that the confessions are not admissible, for this involves a question of vital importance. As I have already said, Mr. Birley purported to record them under Section 164 of the Criminal Procedure Code. But it is urged that they do not come within the terms of this section, that there is no other section of the Criminal Procedure Code that can be called in aid by the prosecution, and that, apart from the Code, there is no provision of law under which their admission can be justified.
45. For the law relating to confessions, we must first turn to the Evidence Act passed with a view to consolidating, defining and amending the Law of Evidence, of which the law as to confessions forms a part. The relevance of confessions is defined in that catena of sections which come under the general heading 'Admissions.' Section 21 declares that admissions are relevant and may be proved as against the person who makes them, and a confession is an admission. Sections 24 to 29 qualify the generality of this provision, and of these Sections 25, 26, and 27 practically reproduce Sections 148, 149 and 150 of the Criminal Procedure Code of 1861. As these provisions were incorporated in the Evidence Act, which received the Governor-General's assent on the 15th of March 1872; they naturally did not find a place in the Criminal Procedure Code of 1872, which received the Governor-General's assent on the 25th of the same month.
46. The Criminal Procedure Code of 1872, however, was not wholly silent as to confessions, for by Section 122 it empowered a Magistrate to record confessions in the manner therein prescribed. This section roughly corresponds with Section 164 of the present Criminal Procedure Code, by reference to which the present objection must be determined.
47. The objection to their admissibility under Section 164 of the Criminal Procedure Code rests first on the contention that, when they were recorded, the enquiry had commenced, and next, on the fact that the Magistrate who recorded the confession was the Magistrate before whom the enquiry was conducted and by whom the order of commitment was made. In support of this view, reliance is principally placed on the Full Bench decision in Empress v. Anuntram Singh (1880) I.L.R. 5 Calc. 954, which, it is argued, supports the view that, at the time when Mr. Birley recorded the confessions, the enquiry had commenced, and that he could not in the circumstances record the confessions under Section 164. The decision in Empress v. Anuntram Singh (1880) I.L.R. 5 Calc. 954 was on Section 122 of the Code of 1872, and it will, therefore, be necessary to compare the provisions of that Code with those of the present Code in order to estimate the extent to which that decision can be regarded as a controlling authority for the purposes of this case. First, then, I will examine the provisions of the Code of 1898 and consider their application, apart from authority, to the circumstances of this case. Section 164 provides that:
(1) Every Magistrate not being a police officer may record any statement or confession made to him in the course of an investigation under this Chapter, or at any time afterwards, before the commencement of the inquiry or trial.
(2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in Section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be enquired into or tried.
(3) No Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect:
48. I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
49. Therefore, to come within the scope of this section, a confession must be made either (i) in the course of an investigation under Chapter XIV, or (ii) at any time afterwards before the commencement of the enquiry or trial.
50. An investigation includes all proceedings under the Code for the collection of evidence conducted by a police officer [Section 4(b)], and there can be no doubt on the facts that the confessions in this case were made in the course of an investigation under Chapter XIV. But, then, it is said that this is immaterial, as they were not made before the commencement of the enquiry. To this, however, the answer is that the condition requiring the confession to be prior to the commencement of the enquiry is only imposed when the investigation has ceased, and not when it is made in the course of the investigation.
51. This appears to me to be the true and natural meaning of this provision, which is a repetition of the provision to this effect contained in the Code of 1882, and I think this is none the less so because the punctuation in the Code of 1882 has not been retained. But even if it be assumed, for the sake of argument, that the commencement of the enquiry terminates the applicability of Section 164, can it be said that on the 4th of May Mr. Birley had commenced the enquiry? To determine this we must have regard to the words of the Code. Chapter XV deals with the jurisdiction of the Criminal Courts in Inquiries and Trials: the first group of sections, that is, Sections 177 to 189, deals with 'Place of inquiry or trial: 'the second group is headed' Conditions requisite for Initiation of Proceedings.' Now Section 190, which is the leading section of this group, indicates the conditions on which a Magistrate may take cognizance of an offence, that is to say, it may be (a) upon receiving a complaint, (b) upon a police report, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence had been committed. On the 4th of May there had been no complaint or police report, and the only information was received from Mr. Clarke, a police officer, who had taken part in the arrest, and possibly from Mr. Plowden, another police officer. But this information, being from a police officer, would not have justified Mr. Birley in taking cognizance, and it does not appear that he had any knowledge or suspicion apart from this information. It follows, therefore, that on the 4th of May none of those conditions had been satisfied on which alone cognizance could have been taken by Mr. Birley, and therefore the enquiry cannot then have commenced.
52. The necessary result of this train of reasoning is that the confessions in this case fall within the scope of Section 164, if regard be had only to the words of the Code. But is there anything in the decided cases which precludes us from accepting this reading of the Act? Certainly not the case of Empress v. Anuntram Singh (1880) I.L.R. 5 Calc. 954, for that was a decision on the Code of 1872, from which the words and provisions on which I have relied are absent. The same remark obviously applies to the decision in Empress v. Yakub Khan (1883) I.L.R. 5 All. 253, which merely purports to follow the authority of Empress v. Anuntram Singh (1880) I.L.R. 5 Calc. 954.
53. Moreover, it is to be noticed that in both those cases confessions were upheld on the ground that they did not come within Section 122 of the Code of 1872, but within Section 193, which, to some extent, resembles the present Section 342. But words have been introduced into the present section which would make the decisions in those two cases impossible in these days. The decision in Sat Narain Tewari v. Emperor (1905) I.L.R. 32 Calc. 1085 has no bearing on the point I am now discussing, for there, in the opinion of the learned Judges, the Magistrate was carrying on an enquiry under Section 202. Nor does In the matter of Behari Hajdi (1879) 5 C.L.R. 238 throw any light on the present question. My conclusion, therefore, that the enquiry had not commenced is not disturbed by anything in the decided cases.
54. But, then, it is contended that as Mr. Birley was the Magistrate who conducted the enquiry and ultimately committed the appellants, he had no jurisdiction to record the confession, This argument rests on the decisions in Reg. v. Bai Ratan (1873) 10 Bom. H.C. 166, and Empress v. Anuntram Singh (1880) I.L.R. 5 Calc. 954 cited above. But both these decisions were on the language of the Code of. 1872, which materially differs from that of the present Code. It is now provided that 'every' Magistrate may record a confession, the word 'every' being substituted for 'any,' and there has also been added the Explanation--'It is not necessary that the Magistrate receiving and recording a confession or statement, should be a Magistrate having jurisdiction in the case.'
55. These alterations make it clear that it can no longer be contended, on the strength of the decisions in Reg. v. Bai Ratan (1873) 10 Bom. H.C. 166 and Empress v. Anuntram Singh (1880) I.L.R. 5 Calc. 954, that a confession recorded by a Magistrate who afterwards conducts the enquiry is outside the provisions of Section 164.
56. In the view I take, it is unnecessary to consider whether, if the enquiry had actually commenced on the 4th of May, the confessions would have been inadmissible. The authority of Queen-Empress v. Narayen (1893) Ratanlal's Unrep. Cr. Ca. 679 is opposed to this view, and the present inclination of my opinion is that the argument seeks to derive from the provisions of the Code a limitation on the law of confessions as defined by the Evidence Act for which there is no sufficient warrant.
57. Then, are the confessions vitiated by the fact that in some instances, and to some extent, the statements made were in response to questions? As far back as 1868 it was held by Sir Barnes Peacock in Queen v. Nobodeep Chunder Gossamee (1868) 15 W.R. Cr. 71n that a statement made by a prisoner in answer to questions were admissible against him, and now we have statutory recognition of this view in Section 29 of the Evidence Act. Therefore, the mere fact that a statement was elicited by a question does not make it irrelevant as a confession. It is to be observed that Ullaskar in effect invited Mr. Birley to question him, and that he should in the circumstances have complied with the request cannot call for any adverse comment.
58. I do not, however, intend to indicate that the fact of statements being elicited by questions may not be very material to an enquiry as to whether the confession is voluntary or not. On the contrary, there are circumstances in which it may be a most material fact, for, unhappily, not merely involuntary, but actually false confessions come before the Courts. Indeed, it may be a question whether such a confession has not come to light in the course of these proceedings, as it has been stated before us by Mr. Norton that, for one of the attempted outrages on the late Lieutenant-Governor, disclosed by the confessions in this case, certain coolies have been tried and convicted and are still in prison, part of the evidence against them being their own confessions. If the confessions in this case are true, then, as Mr. Norton has remarked, there may be reason to apprehend that those coolies have been improperly convicted. Mr. Norton, who appeared for the Crown in that case as well as this, has submitted that the Government should be moved by us to release those coolies. It is outside our province to investigate this matter, but no doubt it will be made the subject of careful enquiry by the Government, if this has not already been done, and the representation of counsel for the Crown will be brought to the notice of the Government.
59. I will defer for the present considering how far the individual confessions in this case are or are not voluntary, for this enquiry will be more conveniently pursued as each confession comes to be separately considered. But, apart from this, the result is that in my opinion Mr. Birley has complied with all the provisions prescribed by Section 164 of the Criminal Procedure Code, so that the presumption indicated in Section 80 of the Evidence Act applies. In addition to that, he has given evidence at the trial affirming his belief that the confessions were voluntary, and, in the circumstances, I hold that the confessions have properly been admitted in evidence by the Sessions Judge. The Sessions Judge has relied largely on these confessions, and in this I think he was justified; for, while fully realising the caution and reserve with which confessions must ordinarily be accepted, those with which we are concerned in this case are so exceptional as not to create in my mind the slightest apprehension of sinister influence or pressure.
60. [His Lordship then dealt with the evidence of the watch or shadowing witnesses, and continued:]
61. Next, Mr. Das has attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On this assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For, without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded. As Jimutavahana with his shrewd common sense observes--'a fact cannot be altered by 100 texts,' and as his commentator quaintly remarks: 'If a Brahmana be slain, the precept 'slay not a Brahmana' does not annul the murder.' But the absence of the precautions designed by the legislature lends support to the argument that the alleged discovery should be carefully scrutinized. In this case there do seem to have been some irregularities, In the case of some searches there were not the two witnesses directed by the Code, while in the case of others it is at least problematical whether the witnesses called in comply with the statutory test of being 'respectable inhabitants of the locality.'
62. But it is the searches at the garden that have been most vigorously attacked. The first of these was on the 2nd May, and was conducted by several police officers. The search witnesses were three--Sheikh Wazir, Sheikh Monglu and Sheikh Mengree,--but they were not called as witnesses at the trial. The Code requires that a list of all things seized in the course of the search and of the places in which they are respectively found shall be prepared by the officer or other person making the search and signed by the witnesses, and a copy of the list prepared signed by the witnesses is to be delivered to the occupant at his request (section 103). Lists were prepared in consequence of this search, but one of the questions is whether, as the prosecution allege, they were prepared at the time in the garden, or, as the defence contend, subsequently at the police station. Notwithstanding the sworn testimony, I am doubtful whether the search lists were completed at the garden. The alteration on the 5th sheet of the hours of search hardly agrees with the theory that it was a contemporaneous record: the presence of fourteen names at the head of the search list instead of 18 is to some extent remarkable, and the appearance on documents found at 15 Gopi Mohan Dutt's Lane of the signature of garden witnesses is calculated to rouse doubt and certainly points to some degree of confusion at the Park Street police station. On the whole, I am not convinced that the search list was completed at the garden. But this is more a matter of form than of substance, except so far as it necessitates careful enquiry as to whether the articles and documents shown in the garden list were in fact found in the garden. And in the view I take, this is only of importance in reference to item 84, for in view of Arabinda Ghose's acquittal the alleged discovery of Ex. 1128 at the garden loses its significance.
63. [His Lordship then referred to the documents discovered at the various searches, which were made exhibits in the case, and continued:]
64. In dealing with documentary evidence, it is necessary to keep carefully in view the use to which it can legitimately be put, having regard to the proof by which it is brought on to the record. A document may, for example, be used in evidence for the purpose of affecting some one with knowledge of its contents, regardless of whether those contents are true or false, or for the purpose of proving the truth of that which it contains; but from the fact that a document may be relevant for the first purpose, it by no means follows that it is relevant also for the second.
65. This distinction is so obvious that I should not have deemed it necessary to refer to it, but for the course this case has taken before us. Excluding for the moment exceptional cases, there can be no doubt as to the general rule that the fact that a statement is made in a private document is not by itself proof of its truth or any more admissible to prove the truth of the matter stated than an oral statement by the same person would be. Writing does not by itself give any greater sanction to the statement, or take the place of the sanction imposed by law. But at the same time a statement, whether oral or written, can be used against a person to prove the truth of the matter stated, if, as against him, it can be regarded as an admission. But the facts must be proved by virtue of which it can be treated as admission.
66. If the admission was actually written by him, and it is on this ground that it is sought to be used, then the fact that it was so written must be proved by those methods which the law allows.
67. The ordinary methods of proving handwritings are (i) by calling as a witness a person who wrote the document or saw it written, or who is qualified to express an opinion as to the handwriting by virtue of Section 47 of the Evidence Act; (ii) by a comparison of handwriting as provided in Section 73 of the Evidence Act; and (iii) by the admission of the person against whom the document is tendered. A document does not prove itself, nor is an unproved signature proof of its having been written by the person whose signature it purports to bear.
68. In applying the provisions of Section 73 of the Evidence Act it is important not to lose sight of its exact terms. It does not sanction the comparison of any two documents, but requires (hat the writing with which the comparison is to be made or the standard writing as it may be called, shall be admitted or proved to have been written by the person to whom it is attributed, and next the writing to be compared with the standard or, in other words, the disputed writing, must purport to have been written by the same person, that is to say the writing itself must state or indicate that it was written by that person.
69. The section does not specifically state by whom the comparison may be made, though the second paragraph of the section dealing with a related subject expressly provides by way of contrast that in that particular connection the Court may make the comparison.
70. In this case we are told that a comparison was made by the learned Sessions Judge out of Court after the conclusion of the arguments, but whether with the assistance of the assessors or not does not appear. If there was no submission of this question to the assessors, it may be a question how far this was not an irregularity. The result has been that on a comparison so conducted the learned Sessions Judge, without in all cases observing the precise terms of the section, has held certain writings to be those of one or other of the accused without having invited or heard arguments from their counsel on this point. I cannot think this was a proper course to pursue: a comparison of handwriting is at all times as a mode of proof hazardous and inconclusive, and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the arguments of counsel and the evidence of experts. In Phoodee Bibee v. Gobind Chunder Roy (1874) 22 W.R. 272, it was said by the Court that 'a comparison of signature is a mode of ascertaining the truth which ought to be used with very great care and caution.'
71. In this case no expert has been called to assist the Court, and not because no expert was available: there is, it is well known, a Government expert as to handwriting, and certain of the documents in this case bear a stamp which shows that they have been submitted to them. It is true that the opinions of experts on handwriting meet with their full share of disparagement at times, but at any rate there is this use in their employment, that the appearances on which they rely are disclosed, and can thus be supported or criticised, whereas an opinion formed by a Judge in the privacy of his own room is subject to no such check. And that the aid of an expert may be of value was clearly the opinion of so distinguished a Judge as Mr. Justice Blackburn, who in Reg. v. Harvey (1869) Cox. 110. 0rder 546 refused to allow a comparison to be made without the help of experts. But whether there has been irregularity or not is of no great moment in the view I take, for after making such comparison as the section permits, I am unable to hold that in any case handwriting has been proved by this method.
72. But to be an admission, it is not necessary that a document should have been written by the 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.
73. 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 recognised 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 materially discounted.
74. Considerable use has been made of the provisions of Section 10 of the Evidence Act in the present case, and it, therefore, is important to observe that its operation is strictly conditional upon there being reasonable ground to believe that two or more persons have conspired together to commit an offence. Regard must also be had to the limits within which this class of evidence can be used.
75. Section 30 of the Evidence Act may also here be noticed as of cognate bearing, for by its terms the Court 'may take into consideration' the confession of one of several persons jointly tried for the same offence against his co-accused as well as against himself. The confession is not evidence against the co-accused in the sense that a conviction on that alone could be supported; it can only be taken into consideration, that is to say, it can lend assurance to other evidence. The confessions in this case have been largely employed for this purpose.
76. [His Lordship then examined the contention of the prosecution that the 'Jugantar' newspaper was a limb of the conspiracy, and proceeded:]
77. I have already dealt with the legal objections to the charges, and it will now be convenient that I should discuss generally, and not in relation to any individual case, the legal aspect of these charges. They are all based on Sections 121, 121A, and 122 of the Indian Penal Code.
78. Section 121 is in these terms: 'Whoever wages war against the Queen, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or transportation for life, and shall forfeit all his property.'
79. It is argued on behalf of the Grown that it was intended by the framers of the Indian Penal Code to reproduce the English law of treason in its entirety, that is to say, not only the Statute Law, but also the interpretation placed on it by the cases. But any one who has studied the history of Section 121, which was a part of the law of the land before its incorporation in the Indian Penal Code, and the literature on the subject, must know that this was not the intention of those who framed the provision.
80. As in my opinion the first batch of appellants could not legally be convicted of an offence under Section 121, and, as in the view I take of the facts established against the rest, no offence under the section has been established, I think it right to refrain from discussing in detail the meaning of Section 121, for in the circumstances the question does not arise. Still I consider the view originally taken by the Government that the case did not fall within Section 121 was manifestly right, and the change from this view, induced as has been indicated, was mistaken.
81. So far as conspiracy is charged, the case rests on Section 121A., which provides that, 'Whoever within or without British India conspires to commit any of the offences punishable by Section 121, or to deprive the Queen of the sovereignty of British India, or of any part thereof, or conspires to overawe, by means of criminal force or the show of criminal force, the Government of India or any Local Government, shall be punished with transportation for life or any shorter term, or with imprisonment of either description which may extend to ten years.'
Explanation. To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof.'
A conspiracy, 'it has been said,' consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means....The number and the compact give weight and cause danger Mulcahy v. Queen (1868) L.R. 3 H.L. 306, 317.
82. One of the assessors in coming to the conclusion that there was no conspiracy seems to have been influenced by the view that there was not 'an immediate purpose,' but that the objective was 'a far-off revolution.' But the question to be determined is whether there was an agreement between two or more of the accused to do all or any of the unlawful acts charged. The fact that the purpose was not immediate, if it be a fact, would only be material in so far as it might bring the matter within the saving operation of Section 95 of the Indian Penal Code, but I can find no trace of any suggestion to that effect before the Court of Session, and certainly no reference has been made in this Court to that section.
83. Baren in his confession no doubt speaks of a far-off revolution, but then he goes on to say that they wished to be ready for it, and so were collecting weapons in small quantities. Major Black, the Chemical Examiner, says that, taking all the articles he had seen front all the places, he should take the costs to be from Rs. 5,000 to Rs. 6,000, and the overt acts disclosed by the evidence, though not in themselves a waging of war, make it plain that there was no reluctance to use explosives to the peril of human life and for the purposes of assassination. It is, therefore, impossible to treat the conspiracy charged as childish or negligible: to those who were members of it the movement meant something that was real and earnest, and it does not detract from the quality of the offence that the object in view was not likely to be realized, though this may be relevant to the question of punishment where the offence is established.
84. Though to establish the charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination, nor need the parties be brought into each others presence; the agreement may be inferred from circumstances raising a presumption of a common concerted plan to carry out the unlawful design.
85. So again it is not necessary that all should have joined in the scheme from the first: those who come in at a later stage are equally guilty, provided the agreement be proved. And this leads me to notice an argument advanced on behalf of the defence that all charged as conspirators must be convicted or all acquitted. The Queen v. Manning (1883) 12 Q.B.D. 241 was cited as an authority for this proposition, but that case turns on the fact that only two persons were charged, so that both had to be convicted. And this for a very good reason. An agreement implies the concert of at least two persons, so that ex vi termini there cannot be a conspiracy of one. Though this is somewhat obscured by the line of reasoning in the judgments, the fact is placed beyond doubt by the judgment of Wright. J. in King v. Plummer  2 K.B. 339. The objection, therefore, fails.
86. Though the appellants have, with a few exceptions, all been convicted under Section 122 as well as under Sections 121 and 121A, it is conceded by Mr. Norton that what is established under Section 122 really is a part of, and goes to make up the offence under, Section 121A, so that a separate conviction and punishment under Section 122 is not sought by the Crown.
87. Another matter to which I desire to allude is the general character of the evidence. from the nature of the case it is to a large extent circumstantial, and in dealing with it the rules specially applicable must be borne in mind. There is always the danger in a case like the present that conjecture or suspicion may take the place of legal proof, and therefore it is right to recall the warning addressed by Mr. Baron Alderson to the Jury in Reg. v. Hodge (1838) 2 Lew. 227, where he said 'the mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.'
88. The mass of material that has found its way on to the records in this case, sometimes without a clear perception of the extent to which it was admissible, has made our task peculiarly difficult, and has made it especially incumbent on this Court to realise and keep in mind that the rules of evidence cannot be departed from because there may be a strong moral conviction of guilt Queen v. Baijoo Chowdhry (1876) 25 W.R. Cr. 43; for a Judge 'cannot set himself above the law which he has to administer, or make it or mould it to suit the exigencies of a particular occasion.' One matter noticeable in the record of the proceedings before the Court of Sessions is the extent to which answers seem to have been elicited from prosecution witnesses by leading questions put to them by counsel for the Crown, and this appears to have been done notwithstanding the objection raised by counsel for the defence. As I have noticed a similar procedure in other cases, I think it right to draw attention to the law governing this matter. Section 142 of the Evidence Act provides that leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the Court.
89. It is the Court, and not counsel for the Crown, who can determine whether leading questions should be permitted, and the responsibility for that permission rests on the Court. Now, not only were objections made by the counsel at the time, but a petition of objection was filed, and, from the order on its back, it appears that no permission was given by the Court, though the witness 'had to be pressed in regard to many points.' This, in the opinion of the learned Judge, did not amount to cross-examination. But the point for decision was whether leading questions were asked, and what is a leading question is defined in Section 141 of the Evidence Act, which provides that 'any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.' How Mr. Norton can have applied the pressure without the use of leading questions is by no means evident.
90. [His Lordship, after dealing with the case of each of the accused on the merits, concluded as follows.]
91. The result then is that the convictions and sentences against all the accused under Sections 121 and 122 must be set aside, but, as against Barindra Kumar Ghosh, Ullaskar Dutt, Upendra Nath Banerjee, Indu Bhushan Roy, Bibhuti Bhusan Sircar, Hrishikesh Kanjilal, Sudhir Kumar Sircar, Hem Chandra Das, Pares Chandra Maulik, Sisir Kumar Ghose, Nirapada Roy and Abinash Chandra Bhattacharjee, the convictions under Section 121A of the Indian Penal Code should, in my opinion, be confirmed.
92. The question of punishment is one of considerable difficulty: those who have been convicted are not ordinary criminals they are for the most part men of education, of strong religious instincts, and in some cases of considerable force of character. At the same time they have been convicted of one of the most serious offences against the State, in that they have conspired to wage war against the King, and the punishment must be in proportion to the gravity of the offence. For the purpose of punishment, Barindra Kumar Ghosh, Ullaskar Dutt, Upendra Nath Banerjee and Hem Chandra Das may properly be grouped together, for they were the leaders of the society, and Ullaskar Dutt and Hem Chandra Das actually manufactured bombs that were used. We sentence each of them to transportation for life. The next class includes Bibhuti Bhusan Sircar, Hrishikesh Kanjilal and Indu Bhushan Roy, whose prominence in the society is shown by the part they took in one or other of the attempted outrages disclosed by the evidence in the case. We sentence each of them to transportation for a term of ten years. We sentence each of the following, i.e., Sudhir Kumar Sircar, Pares Chandra Maulik, Abinash Chandra Bhattacharjee to transportation for a term of seven years. We sentence Sisir Kumar Ghose and Nirapada Roy respectively to five years' rigorous imprisonment.
93. Mr. Justice Carnduff and I are divided in opinion as to the conviction of Krishna Jiban Sanyal, Sushil Kumar Sen, Birendra Chandra Sen, Sailendra Nath Bose, and Indra Nath Nandi, so the case with our opinions thereon must be laid before another Judge of the Court as provided in Section 429 of the Criminal Procedure Code.
94. I agree with most, but unfortunately not with all, of the conclusions arrived at by my lord the Chief Justice on this appeal. Our difference of opinion is, in effect, limited to the question whether the guilt of five of the appellants has been proved or not. But there are some remarks which I feel called upon to make, as briefly as may be, on my own account, both on the case as it presents itself to me as a whole, and on certain points connected with it, although we are in substantial agreement regarding them.
95. First, as to the facts generally, the case for the prosecution is that definite information of the existence of a secret society formed with the object of subverting the King-Emperor's government in India was obtained by the Criminal Investigation Department in October 1907, and that information was confirmed shortly afterwards by the futile attempt which was made to wreck the Lieutenant-Governor of Bengal's special train at Naraingarh in the following December. In consequence, steps were taken to unravel the plot and expose the plotters, and detective police, as well as spies, were as usual employed towards that end. According to Inspector Biswas, there were as many as twenty officers, from the Inspector-General downwards, connected with the investigation; but, as was only natural where the greatest secrecy and circumspection were essential, the immediate control of it seems to have remained in a few hands. Suspected persons were shadowed, their associates--for association must be the basis of all conspiracy--were noted, their haunts were marked, and suspicious movements, both of individuals and of materials, were watched. Vigilance was, we are told, redoubled when a bomb, which failed to explode, was thrown into the residence of the Maire at Chandernagore on the 11th March 1908, and when the warning was received, on the 20th April, that the life of the former Chief Presidency Magistrate of Calcutta was in danger. On the 30th April two ladies were killed at Mozufferpore by means of a bomb evidently intended for Mr. Kingsford, and on the 2nd May and following days, further delay being felt to be impossible, the police acted upon such information as they had collected so far, and with startling results. Various places were raided, the first being the so-called 'garden' in Maniktollah, belonging to the family of the appellant Barindra Kumar Ghose. Explosives and materials connected with the manufacture of explosives, as well as innumerable documents and other things, some more or less suspicious and some apparently innocuous, were seized; and a number of dramatic arrests, followed in some instances by equally dramatic statements of an incriminating character, were made, These broad facts are hardly disputed and may be regarded as indisputable; and thus the prosecution has undoubtedly had the advantage of starting from very firm ground.
96. But, when one is at the outset strongly impressed with the, truth of a case as a whole, it is obviously all the more necessary to be on one's guard against approaching with prejudice or unconscious bias the respective cases of the individuals concerned; and, as the learned Chief Justice has put it, one must be very careful not to allow conjecture or suspicion to take, the place of legal proof. With all that his Lordship has observed on this point and as regards the necessity for adhering to the rules of evidence throughout I fully concur. But 'legal proof' is, as it seems to me, neither more nor less than what is indicated by the definition of the word 'proved,' which is to be found in Section 3 of the Indian Evidence Act, 1872: that is to say, 'a fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.' When the section speaks of 'the matters before' the Court, it means, of course, the matters properly before it. Whence it follows that, if and when irrelevant matter has been admitted in evidence, one must be careful--I would here refer to the provisions of Section 167 of the Evidence Act--to exclude it from consideration and refuse to be in any degree influenced by it. But, given evidence on the record which is admissible, and excluding from consideration any that may have been wrongly admitted, I doubt whether it is possible to draw a distinction between 'legal proof' and 'moral conviction.'
97. I. will now address myself to the attacks that have been made generally on the evidence for the prosecution, which may be described as consisting in the main of:
(i) the depositions of the shadowing witnesses;
(ii) the findings at the various searches; and
(iii) the confessions and statements of certain of the appellants.
98. [After dealing with the first two points, his Lordship continued as follows:]
99. There remain, in connection with the evidence, the confessions which were recorded by the District Magistrate, Mr. Birley, shortly after the arrests, and which, I agree with the learned Chief Justice in holding, were undoubtedly admissible. The decision of the Full Bench of this Court in Empress v. Anuntram Singh (1880) I.L.R. 5 Calc. 954 is now obsolete, and there is nothing in the present Procedure Code to incapacitate from recording a confession under Section 164 the Magistrate who intends eventually to try the person confessing. I further concur in holding that the confessions were recorded under that section; for, as a matter of fact, the police investigation had not come to an end, and the magisterial enquiry had not, and could not have, commenced when Mr. Birley recorded them. I am also of opinion that, even if Section 164 were held to be inapplicable, the provisions of that section and of Sections 342 and 364 of the Procedure Code are not exhaustive and do not limit the generality of Section 21 of the Evidence Act as to the relevance of admissions. Finally, as to the voluntary character of the confessions in this case there can be no question. Mr. Birley is a Magistrate of experience and standing, and he appears from the record itself, as well as from the evidence given by him on the point, to have done all that in him lay, and even more than the law expressly requires, to satisfy himself that they were genuine before he received them. He warned each person that he was a Magistrate, and that any statement made to him might be used in evidence; and he put direct questions as to the presence or absence of pressure. It is true that the confessing accused had been in police custody for some time; but the chief of them, Barindra, had, immediately after the arrests in the garden, pointed out the most damning evidence on the spot, not only to the police, but to Major Black, I.M.S., the Chemical Examiner, also. Moreover, the education and intelligence of the accused, the tenor of their confessions, and especially the reasons for confessing vouchsafed by Barindra and repeated by some of the others, all point to the one conclusion that they were free agents. It has, however, been objected that their confessions were made in answer to enquiries, and that no question ought to have been put to any of them beyond some such initial query as 'What do you wish to say, if anything? 'Now, although Section 29 of the Evidence Act expressly provides that a confession does not become irrelevant merely because it was made in reply to questions, no matter what their form, which need not have been answered, yet there can be no doubt but that a process of examination may detract from the voluntary character of the transaction, and that, where there is ground for thinking that there has been any such result, the confession is vitiated thereby. But here there is no reason to suspect anything of the kind, and the voluntary character of all the statements recorded by Mr. Birley stands unimpaired. Moreover, their truth has not to this day been denied by any of the appellants except Sudhir Kumar Sirkar and Krishna Jiban Sanyal. These two retracted their confessions and alleged police pressure when they were examined on the 13th August 1908, prior to their commitment; but the others contented themselves with bare and belated withdrawals made when the trial began in October. And I cannot accept the proposition, urged by Mr. Das, that in no circumstances is a Magistrate justified in eliciting anything from a prisoner by independent enquiry. The examination provided for by Section 342 of the Procedure Code is, no doubt, expressly and advisedly now confined to the object of 'enabling the accused to explain any circumstances appearing in the evidence against him;' but there is no such limitation placed by Section 164, or by any other provision of law of which I am aware, and in the stage of investigation before any evidence has been recorded there is obviously no room for the limitation. At that stage, and, indeed, at any point other than that indicated in Section 342, the only thing that is abhorrent is pressure or inducement, and the sole criterion by which the fitness of an examination can, so far as I can see, be judged, is with reference to the question whether it was voluntary or not. Therefore, holding as I do that Ullaskar Dutt, for example, was a ready and willing informant, I consider that the questions put to him were all proper questions, and that when he was asked 'Have you anything else to say?' and replied 'If you question me I can say,' Mr. Birley not only was right in putting further questions to him in response to the invitation, but might reasonably have been found fault with had he refrained from doing so. Similarly, when Barindra told the Magistrate that he had supplied the Mozafferpore assassins with revolvers, the Magistrate was, I think, justified in enquiring whence the revolvers had been obtained, while the reply 'I do not wish to say' and its immediate acceptance as putting an end to the topic, show how scrupulously and admirably fair Mr. Birley's treatment of the prisoner was.
100. There is, however, one remark regarding confessions which I am anxious to add before leaving the subject. For very obvious reasons, there can be no surer foundation for conviction. But, for equally obvious reasons, confessions have always been, and always will be, regarded by Judges with suspicion, and I trust that nothing I have said in this judgment will be viewed as an incentive to the police to aim at securing evidence of this class. My remarks should, therefore, be read with reference to the particular confessions before us, most, if not all, of which may be said to be sui generis.
101. Various other points of law have been raised in the course of the argument at the Bar, and as to most of them, all I need say is that I concur with the learned Chief Justice. There are, however, three which I have special reasons for desiring to notice.
102. First, Mr. Das has contended that the Criminal Procedure Code, in so far as it interferes with the indefeasible right of every British subject, be he European or Indian, to be tried by jury, is void as being ultra vires of the Indian Legislature; and my lord the Chief Justice has disposed of the contention by pointing out that a similar objection recently failed before a Special Bench of three Judges of this Court, constituted under Section 11 of the Indian Criminal Law Amendment Act of 1908, to try the case of the King-Emperor v. Kartik Chandra Dutt and Ors. As that case has not been reported, as I was a member of the Special Bench by which it was tried, as the decision in it was arrived at by us sitting on the Original Side, and as Mr. Das pressed his contention in all seriousness, with great skill and at considerable length, I cannot refrain from dealing further with the point.
103. Shortly put, Mr. Das' argument is based upon Section 22 of the Indian Councils Act, 1861 (24 & 25 Vict., c. 67), where it stands enacted by Parliament that 'the Governor-General in Council shall not have the power of making any laws and regulations which shall repeal or in any way affect....any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland, whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom.' And he argues that, as allegiance and protection are reciprocally due from the subject and the Sovereign and cannot be separated, any law which attempts to take away the Sovereign's protection by infringing such a right, conferred to secure the liberty of the subject, as the right of trial by jury, at the same time relaxes the duty of the subject to observe allegiance towards his Sovereign, and is, therefore, ultra vires. Precisely the same line of argument was followed in 1870, once on the Original Side of this Court and again on the Appellate, in the well known case of In the matter of Ameer Khan (1870) 6 B.L.R. 392 and 459 in connection with the question whether a writ of habeas corpus could be issued in respect of the detention in the mufassil of a Mahomedan subject of the Crown under the State Prisoners Regulation of 1818 and the State Prisoners' Act of 1858; and I cannot do better than quote from the judgments then given by Phear and Markby, JJ., when dismissing the appeal from the refusal of Norman, J., to issue the writ. The Statute under consideration on that occasion was Section 43 of the Government of India Act, 1833 (3 & 4 Will. 4, c. 85); but the language was, word for word, the same as that reproduced above from the Statute of 1861, which in this respect merely repealed and re-enacted the earlier provision. Mr. Justice Phear (see page 477 of the report) thought that the words in question 'did not refer to any assumed conditions precedent' to be performed by or on behalf of the Crown as necessary to found the allegiance of the subject, but to laws or principles which prescribed the nature of the allegiance; 'and he went on to say that' the learned Counsel appeared to him at this stage of his argument to be endeavouring to convert a political sentiment into a principle of law.' And Mr. Justice Markby (see pages 481, 482) followed with these trenchant observations:
It is said that the Act of 1858 was an excess of the power conferred upon the Indian Legislature... because it affects that part of the unwritten law or constitution whereon allegiance depends.... The restriction... is certainly couched in language to the last degree vague and obscure. Possibly a search into the discussions which preceded the Act might suggest a meaning; but I think that is a dangerous method of interpretation, and I would rather not resort to it. I think this objection is sufficiently answered by what appears to me to be a very clear principle; namely, that the allegiance of a British subject in no way whatever depends on the existence or non-existence of such a power as is conferred on the Governor-General by the regulation of 1818. I wholly repudiate the doctrine contended for, that the allegiance of a subject to his Sovereign can by any possibility to legally affected by the mere withdrawal from the subject of any right, privilege or immunity whatsoever. I think the notion of reciprocity expressed in the maxim protectio trahit subjectionem, et subjectio protectionem, upon which this argument depends, is one which is wholly inadmissible in any legal consideration.
104. These remarks I would adopt and apply, mutatis mutandis, to Mr. Das's contention in this case. Moreover, trial by jury as known to the common law of England, that is to say, trial by the unanimous voice of twelve of one's peers, is unknown in India; and it seemed to Mr. Justice Harington, Mr. Justice Mookerjee and myself last March, as it seems to me today, that it is too late now to question the validity of every law regulating criminal procedure that has been enacted in this country under the Statutes of 1833 and 1861, and the legality of every trial held, whether by jury or with the aid of assessors, in the mufassal, or by jury before the Supreme or the High Court, during the last seventy-six years at least.
105. Secondly, as regards the question of waiver, I agree in thinking it settled by authority--see the decision of this Court in 1880 of In the matter of the petition of Quiros (1880) I.L.R. 6, Calc. 83, followed in 1888 by the Bombay High Court in Queen-Empress v. Grant (1888) I.L.R. 12 Bom. 561, and in 1892 by the Madras High Court in Queen-Empress v. Bartlett (1892).I.L.R. 16 Mad. 308, that an European British subject can relinquish his right to be tried as such, and that the appellant, Barindra Kumar Ghose, did so. And I would add that he seems to have acted deliberately and after the fullest warning and explanation of the position.
106. And, thirdly, I agree in considering that the expression 'wages war,' which is used in Section 121 of the Penal Code, must be construed in its ordinary sense as a phrase in common use in the English language, and that it is impossible to hold that any of the overt acts alleged in this case amount to the offence provided for by that section. The charge thereunder, therefore, fails on the merits, and the death sentences passed on Barindra Kumar Ghose and Ullaskar Dutt cannot be confirmed. I also think that there was no valid authority for the prosecution of the first batch of the accused on that charge, and I would endorse all the principles laid down by the learned Chief Justice in this connection; but, as his Lordship has indicated, a decision on the point is not, in the view which we take of the offence concerned, essential.
107. It remains for me now only to refer to the cases of the appellants individually. As regards (1) Barindra Kumar Ghose, (2) Ullaskar Dutt, (3) Upendra Nath Banerjee, (4) Hem Chandra Das, (5) Bibhuti Bhusan Sircar, (6) Hrishikesh Kanjilal, (7) Indu Bhusan Roy, (8) Abinash Chandra Bhuttacharji, (9) Nirapada Rai, (10) Sishir Kumar Ghose, (11) Paresh Chandra Maulik, and (12) Sudhir Kumar Sircar, I agree throughout with the learned Chief Justice, both in respect of the offences charged and in respect of the reduction of some of the sentences proposed now that the conviction for waging war, for which the minimum penalty fixed by law is transportation for life, has been ruled out. And as to (13 Balkrishna Hari Kane, I also concur in thinking that there is room for considerable doubt, to the benefit of which he is, of course, entitled. But as regards the remaining five, namely, Susil Kumar Sen, Birendra Chandra Sen, Krishna Jiban Sanyal, Sailendra Nath Bose and Indranath Nandi, I regret that, for reasons which I have recorded separately, I cannot bring myself into agreement with my Lord.
108. [His Lordship then dealt with the case of Susil Kumar Sen, and proceeded to discuss the case of Birendra Chandra Sen.]
109. I now come to Biren's conduct and admissions. Mr. Deputy Superintendent Kemp (W. 7) swears that he (Kemp) took a packet out of the canvas bag and put it down on the ground; that Biren thereupon, in a state of confusion and trembling, hurriedly picked it up; that he (Kemp) snatched it back and enquired what it was; and that Biren, then and there, correctly named the ingredients of the powder which it was eventually found to contain. According to Inspector Abdul Nur (W. 16), Biren distinctly said that 'he had made it,' adding what the Chemical Examiner, Major Black (W. 23), shows was literally true, namely, that' it was not an explosive yet;' and, according to Sub-Inspector Latif-ud-din (W. 17), he explained that 'it was a kind of powder made by himself, and that he had been preparing it as an experiment to see whether it acted as an explosive or not.' As regards the two note-books, Mr. Kemp says that Biren made a statement, but what the statement was, it would seem from the Sessions Judge's remarks, this witness was not allowed to say. The deposition of Abdul Nur, however, contains the assertion that Biren admitted that both the note-books had been written by him, while Latif-ud-din declares that Biren answered Mr. Kemp when the Deputy Superintendent asked him what the hieroglyphics in them were. Much stress cannot be laid on mere indications of emotion, and the fact that Biren was confused and trembled, is not, of itself, of importance; but what he really said and did not say at the time is if relevant, of very considerable value. And this raises the important question whether his statements to the police are admissible, or whether they are 'confessions,' and, as such, ought not to have been received in evidence.
110. In Queen v. Hurribole Chunder Ghose (1876) I.L.R. 1 Calc. 207, Garth, C.J. and Pontifex J. held that what is described in the head-note as 'a statement in the nature of a confession' was inadmissible under Section 25 of the Evidence Act, it having been made to a police-officer. I have had the advantage of examining the actual statement as recorded by the police-officer concerned in that case; and I find that the prisoner, the charge against whom was abetment of the use as genuine of certain forged documents, admitted that he had, at the request of the principal accused, prepared a draft of a letter of advice (evidently one of the forgeries), that the principal had afterwards told him that 'he had got a great lot of money on the draft,' and that he had eventually received from the principal the sum of Rs. 8,300. Now this statement was treated, and referred to throughout, as a confession, and the Standing Counsel apparently never suggested that it was not, the only questions argued before the learned Judges being the questions whether Mr. Lambert, who had received and recorded the statement, and who was a Magistrate as well as Deputy Commissioner of Police, was a 'police-officer' within the meaning of Section 25, and whether that section was qualified by Section 26. The ruling, therefore, seems to be of no assistance to us here.
111. The case of Queen-Empress v. Mathews (1884) I.L.R. 10 Calc. 1022 has also been relied upon by Mr. Das. In trying that case Mr. Justice Field, when excluding a statement made by the accused to a police officer, observed that the exact words used in such circumstances would not be evidence 'if they amounted to an incriminating statement,' and that the law was 'imperative in excluding what comes from an accused person in custody of the police, if it incriminates him.' But the learned Judge made these remarks in considering a hypothetical case put by the Standing Counsel for the Crown in support of the argument that he was entitled to clear up a matter left in doubt by the cross-examination; and the statement which the accused, then on his trial for murder, was said to have made when arrested, was that something had happened 'at the time he struck the deceased.' Now, as was remarked by Halsbury, L.C., in Quinn v. Leatham  A.C. 495, 'a case is only an authority for what it decides;' and it seems to me that all that Mr. Justice Field decided in Mathews case was that the statement quoted above amounted to a confession, a decision the justice of which, if I may say so without presumption, no one will dispute.
112. Then there is the case of Queen-Empress v. Meher Ali Mullick (1888) I.L.R. 15 Cal. 589, on which special reliance has been placed by the defence. In that instance three persons, Meher, Bhutto and Torab, were accused of having murdered one Hurree, the theory for the prosecution being that the deceased had been strangled as the outcome of a dispute over a bill presented by him to Meher. The statements to the police, which were objected to as inadmissible, were statements made by Torab. 'Hurree,' Torab was said to have told the police, 'came here yesterday at 1 P.M. Hurree and I and Bhutto and Meher Ali were seated in this room looking over his (Hurree's) account, when Hurree took sick with cholera he went out three times to case himself and came back and sat down, when angry words passed between him and Meher Ali.' He appears also to have gone on to describe how Meher Ali 'pushed Hurree in the throat' and made him insensible, and how the corpse was afterwards removed in a box. Mr. Justice Wilson, having--so the report runs--taken time till the following morning to consider the question, stated that he had come to the conclusion that evidence of these statements could not be given, but his Lordship gave no reasons, nor did he attempt to lay down any rule or enunciate any principle. Again, I venture to make the remark with which I concluded my notice of Mathews' case (1884) I.L.R. 10 Calc. 1022.
113. In Imperatrix v. Pandharinath (1881) 1. L.R. 6 Bom. 34 the charge was one of altering a forged cheque, and a policeman deposed that he bad put the cheque into the accused's hands and asked him whence he had obtained it, the accused's reply being that he had got it from a certain Kisan. Melvill and Kemball, JJ., refused to admit the statement, pointing out that, although it was probably made in self-exculpation,' it was nevertheless an admission of a criminating circumstance, on which the prosecution mainly relied, and (which) formed, indeed, the most important part of the evidence against the accused.' They thought that 'such an admission came properly within the rule of exclusion,' and they consequently excluded it.
114. In Queen-Empress v. Javecharam (1894) I.L.R. 19 Bom. 363 the following were the facts. Javecharam, a ticket-collector on the railway, was accused of having sold the Railway Company's tickets and misappropriated the proceeds, and one Ahmed was tried with him for having dishonestly received the 'stolen property,' namely, some of the tickets, which he also had been detected in the act of selling. Ahmed told the police that he had received these tickets from Javecharam, and Jardine and Ranade, JJ., ruled the statement out as inadmissible. They held, following Imperatrix v. Pandharinath (1881) I.L.R. 6 Bom. 34, that it was 'an admission of a criminating circumstance on which the prosecution evidently relied, and which had weighed with the Magistrate in his judgment on the facts, 'and that its admission was, therefore, 'contrary to Sections 25 and 26 of the Indian Evidence Act.'
115. Per contra, Phear, J., in Queen v. Macdonald (1872) 10 B.L.R. App. 2, pointed out that the Evidence Act had made a distinction between admissions and confessions, and allowed in evidence the statement made to a police-officer by a person arrested for theft and dishonest possession in respect of a watch, chain and cash, that his sister had given him the watch and the cash, and that he had bought the chain. Mr. Justice Prinsep acted apparently on the same distinction in Empress v. Dabee Pershad (1881) I.L.R. 6 Cal. 530, but that case is not helpful, because the tenor of the accused's statement does not appear from the report. And in construing the provisions of Section 148 of the Criminal Procedure Code of 1861, which corresponded with, and were replaced by, those of Section 25 of the Evidence Act, but referred to 'confessions or admissions of guilt' and were, therefore, expressed in rather more, than less, comprehensive terms, Couch, C.J., had, in Queen v. Amir Khan (1871) 9 B.L.R. 36, 72, indicated, as it seems to me, the view that what an accused person has said to the police may not, though damaging, amount to a confession or an admission of guilt such as was then contemplated by the law.
116. Finally, in the most recent case of the Emperor v. Mahomed Ebrahim (1903) 5 Bom. L.R. 312 the accused was tried for the theft of a box, and a policeman gave evidence to the effect that he had seen him carrying the box at night, and that, when challenged, he had stated that the box was his own. The statement was found to be false, but it was nevertheless held by Crowe and Chandavarkar, JJ., to have been rightly admitted. 'In order to determine,' said the learned Judges, 'whether the statement is a confession of guilt or an admission of a criminating circumstance, we must look to the statement itself. Here the statement of the accused was merely that the box belonged to him; it was no admission whatever of any criminating circumstance. It was, therefore, admissible. The statement held to be inadmissible in Imperatrix v. Pandharinath (1881) I.L.R. 6 Bom. 34 was of a different character. There the accused's statement admitted possession of a cheque alleged to be forged. It was an admission of one of the criminating circumstances which went to make up the offence charged against the accused. In the present case the statement does not amount, directly or indirectly, to an admission of any criminating circumstance, and is, therefore, outside the principle of the ruling cited.'
117. In the result, it seems to me that each case must be decided as it arises with reference to the question whether the particular statement concerned, whether it be positive or negative, verbal or expressed by conduct, is or is not a 'confession.' Here I am of opinion that not one of the statements attributed to Biren is an admission of guilt, and I consider that, although they undoubtedly tell against him, they were rightly received and recorded by the Court below. I am also satisfied that they were actually made....
118. [His Lordship then discussed the evidence against Krishna Jiban Sanyal, Sailendra Nath Bose and proceeded to the consideration of the case of Indranath Nandi. After dealing with the main facts proved against Indranath, his Lordship dealt with the question of his connection with Taranath Chowdhry, and made the following observations as to the mode of proof of handwriting:]
119. There then arises the question whether Indranath's association with Taranath at any time has been established, and this depends to a large extent upon the answer to the further question whether certain of the letters found at the search of 4 Raja's Lane can be attributed to Indranath. Now, it is clear that the handwriting of these letters has not been proved in any of what may be styled the stereotyped methods of proving handwriting; for only one of those methods, and that the least reliable of all, namely, unaided comparison by the Court, seems to have been available. And even that method was resorted to under almost impossible conditions, because the sole standard of comparison was Indranath's signature, description and address, all in English, whereas the letters, apart from the superscriptions, are practically all in Bengali. The supposed author did not himself break silence either to admit or to deny the writing of any of them. His co-director Raghunath, declared that he was unacquainted with his Bengali signature and 'not much familiar with his writing,' while Mr. Norton seems to have either omitted to put, or refrained from putting, to Pabitra anything but Indranath's writing in English on the articles of association. Expert opinion on the point was not offered; and, even if it had been given in favour of identity, it could hardly, in the circumstances described above, have been of any real value or cogency. The stereotyped methods of proof thus went by the wall. But I am unable to concede, and I can find no authority for the proposition, that a particular individual's authorship of a document cannot be established by the force of circumstantial evidence. Best, in discussing the subject of proof of handwriting under English law, begins--see Best on Evidence, ed. 10, p. 213--by expressly excluding cases in which the fact that a certain document was written is inferred from circumstances; and, under the law as codified for us in India, circumstantial evidence seems to me to be admissible in this, as in almost every other, connection. The stereotyped methods of proof are the usual methods, and that is probably why there is little assistance to be derived from the Law Reports on the point, which has consequently been argued before us as if it were one of first impression. There are, however, three cases reported in India which I have been able to trace, and these appear to me to support the view which I favour. In Neel Kanto Pandit v. Juggobundhoo Ghose (1874) 12 B.L.R. App. 18 Mr. Justice Markby pointed out that Section 67 of the Evidence Act had laid down no rule whatever as to the kind of proof of handwriting that must be given, but had left it as before, entirely to the discretion of the presiding Judge of fact to determine what satisfied him that a particular document was a genuine one. The remarks of Couch, C.J., in Abdool Ali v. Abdoor Rahman (1874) 21 W.R. 429 also tend to negative the idea that Section 67 is in any way restrictive. And Farran, J., in Abdulla Paru v. Gannibai (1887) I.L.R. 11 Bom. 690, observed that proof of handwriting 'might of course be by any of the recognised modes of proof, and, amongst others, by statements admissible under Section 32.' And one can readily imagine cases in which circumstantial evidence might be immeasurably superior to most, if not all, of the stereotyped media of proof. For example, A, whose credit is unimpeachable, is able to swear that B was the sole occupant of a room, and that, as soon as B left it, he (A) entered and found a letter, with the ink still wet, lying on the table. There could be no more convincing and conclusive evidence that B wrote that letter, however feigned the handwriting might be, however unlike B's ordinary penmanship, however strong B's denial. I cannot believe that the law would reject such evidence; I can find nothing in the Evidence Act to exclude it; but, on the contrary, it seems to me that it would be admissible under Section 6, or Section 7, or Section 9, or Section 11, and I consider that those provisions may be appealed to here.
120. [The case of the five prisoners, Krishna Jiban Sanyal, Susil Kumar Sen, Indranath Nandi, Birendra Chunder Sen and Sailendra Nath Bose, as to the guilt of whom their Lordships differed in opinion, was referred to Mr. Justice Harington, who, after rehearing the case of these prisoners, acquitted the three first, and convicted the remaining two under Section 121 A of the Penal Code]