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Nil Ratan Ganguli Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1933Cal124
AppellantNil Ratan Ganguli
- .....has preferred the appeal from jail against the conviction and sentence passed upon him by a special magistrate in the district of hooghly acting under section 39(1), ordinance 2 of 1932. the case was one in which the charges were laid under section 19(f) and section 20, arms act. there were two accused originally and the case against them was that this accused nil ratan had handed over to upen bhumij alias upen singh a revolver and afterwards to upen's wife some cartridges in order that those might be concealed and kept on his behalf. both the accused persons made confessions, the confessions being recorded on 17th january 1932. one of the accused was made an approver and the case in the end was held to be amply proved by the magistrate. the magistrate found as regards the present.....

Rankin, C.J.

1. In this case, the accused Nil Ratan Ganguli has preferred the appeal from jail against the conviction and sentence passed upon him by a Special Magistrate in the District of Hooghly acting under Section 39(1), Ordinance 2 of 1932. The case was one in which the charges were laid under Section 19(f) and Section 20, Arms Act. There were two accused originally and the case against them was that this accused Nil Ratan had handed over to Upen Bhumij alias Upen Singh a revolver and afterwards to Upen's wife some cartridges in order that those might be concealed and kept on his behalf. Both the accused persons made confessions, the confessions being recorded on 17th January 1932. One of the accused was made an approver and the case in the end was held to be amply proved by the Magistrate. The Magistrate found as regards the present accused who gave his name and the occupation as that of a Congress worker, that he used to live in the Congress office and that his meals were supplied by different persons of the village Majdah; and the Magistrate thought that the accused acquired great influences over the villagers, so much so, that when the Sub-Inspector in charge of the case came to investigate into it he found great difficulty in getting witnesses to sign their names in the search list. At the trial, the present accused stated in his examination under Section 342, Criminal P.C, that his confession was true and he set up the case that he had found this revolver and the cartridges wrapped up in a piece of cloth near a railway station some four years ago, that he kept them buried and that at the time alleged he went to Upen's bari and made over to him the revolver and the cartridges wrapped in a piece of cloth. The accused disputed certain evidence to the effect that the cartridges as distinct from the revolver had been handed over to the wife of Upen; but that is the evidence. On being asked if he wanted to say anything else, he said:

I don't want to say anything else. I want heavy punishment for 'freedom first'.

2. In his memorandum of appeal to this Court, the appellant having been sentenced to seven years' rigorous imprisonment says:

I am guilty. The sentence passed upon me under Section 20, Arms Act, has been heavy. I therefore pray that your Lordships may be graciously pleased to reduce my sentence.

3. The sentence which has been inflicted by the Magistrate is the extreme sentence permissible under Section 20, Arms Act. The Magistrate gives us his reasons for this that there are no extenuating circumstances in the accused's favour and that when his statement was taken under Section 342, Criminal P.C, he showed a very defiant attitude and boldly challenged the Court to pass a heavy sentence and said 'freedom first.' In these circumstances, we find that the sentence having been passed on 5th February 1932 the appeal was not lodged from jail until the 28th March following whereas by Section 39, Ordinance 2 of 1932, which was a very recent Ordinance having come into force in the beginning of the present year a distinct provision is made that an appeal in such a case as this shall be brought within seven days. Accordingly, when this matter was examined first in the office, it was referred to me and the question of admission was sent to be dealt with by the Criminal Bench. The Criminal Bench however did not hear any argument or decide any question so far as I know, but the learned Judges recorded the order:

This appeal will be heard on the question of sentence only. Let the record be sent for and the usual notices issue.

4. That order was made on 20th April 1932. The matter of the appeal therefore comes before this Court as an admitted appeal and it will appear that all questions of law are open both to the prosecution and to the defence.

5. We have accordingly directed our attention, in the first place, to the question whether we are debarred from entertaining this appeal by any provision of law. In support of the contention that we are so debarred the argument is as follows: By Section 29, Lim. Act it is provided that

where any special law prescribes for any appeal a period of limitation different from the period prescribed therefor by Sch. 1, the provisions of Section 3 shall apply as if such period were prescribed therefor in that schedule.

6. Accordingly, while the provisions of the Ordinance is that the appeal shall be brought within a certain time, prima facie that attracts the operation of Section 3, Lim. Act, which contains a provision against the Court entertaining the appeal. It is necessary however in this case to pursue the provisions of Section 29 of the Act somewhat further. That section goes on to provide that for the purpose of determining the period of limitation certain provisions of the Limitation Act shall apply only in so far as and to the extent to which they are not expressly excluded by the special law; and further that the remaining provisions of this Act shall not apply.' Now, Section 5, Lim. Act, is not one of the provisions which are to apply in the absence of something to the contrary. It is one of the sections to which the concluding clause is applicable, namely 'the remaining provisions of this Act shall not apply.' It is clear enough I think and it is conceded by the learned Deputy Legal Remembrancer that the provision means shall not apply by virtue of the Limitation Act' and is not a provision prohibiting any special law making the sections applicable or any special law according to the intention of which such a section as Section 5 can be deemed to be applicable. It means that so far as the Limitation Act is concerned the section is not to be deemed to be one which is to be applied to the special law. There is authority both in the Patna High Court and in this High Court for that proposition; but, as it is not contested, I shall not further deal with it.

7. On behalf of the appellant Mr. Basu, who at the Court's request has been so good as to support the appeal and has done so with great care and ability, puts forward two contentions. He says first of all that the Ordinance is not a special law, and he says in the second place that there is enough in Section 52 of the Ordinance, to entitle this Court to say that the special law intends that Section 5 should be applied to an appeal such as the present. I cannot doubt that, for the purposes of Section 29, Lim. Act, Ordinance 2 of 1932 is a special law. It contains provision for setting up certain special criminal Courts. It is true that these Courts have jurisdiction not only over offences created by the Ordinance, but it would seem over offences of any kind provided they are committed in certain circumstances; but I cannot doubt that nonetheless it is a special law and it seems to me clear that when the Ordinance contents itself by saying that the appeal shall be presented within seven days it does so because of the provisions already made by the Limitation Act in Section 29 which attracts the operations of Section 3 and makes that period of time effective as the period of limitation.

8. The next question is whether we can say that in the special law itself there can be discerned any intention that the Court should have the power given by Section 5, Lim. Act. This question involves a careful examination of the Ordinance and certain sections of the Ordinance have been brought to our notice as having a possible bearing upon this question. It is to be noticed, for example, that in Section 45 where provision is made for an appeal from a Court set up as a summary Court to a tribunal called a Special Judge there is a provision that the appeal shall be presented within seven days from the date of the sentence followed by a provision that the Special Judge shall follow the same procedure and have the same powers as an appellate Court follows and has under the Code, that is the Code of Criminal Procedure. It is also to be observed that in dealing with the question of an appeal from a Special Judge Section 34 of the Ordinance makes a provision to the effect that the provisions of the Limitation Act are to apply as if it were an appeal under the Code from a sentence passed by a Court of Session. So it would appear, that in the case of an appeal from a Special Judge the ordinary law of limitation is to be applied, but, to decide which of the provisions of the ordinary law is applicable to the new tribunal, it is prescribed that the new tribunal is to be deemed as a Court of Session.

9. The matter before us however depends upon the provisions of Section 39 of the Ordinance. This is another class of appeal provided by the Ordinance, namely, an appeal from a Special Magistrate. An appeal is provided in such a case as the present to the High Court and it is followed by a provision that it is to be presented within seven days. Nothing however is said as regards the powers of the High Court in that section. Section 52, however is a very general section applicable to all Special Criminal Courts, that is to say, all the Courts which are set up by Ch. 4 of the Ordinance from the highest to the lowest. It says that:

the provisions of the Code and of any other law for the time being in force, in so far as they may be applicable and in go far as they are not inconsistent with the provisions of this Ordinance, shall apply to all matters connected with, arising from or consequent upon a trial by special criminal Courts constituted under this Ordinance.

10. The question is whether by virtue of that general provision we are entitled to say in the face of the concluding words of Section 29, Lim. Act, that the Ordinance itself contemplates and provides that the High Court in this case shall exercise the power of dispensation for sufficient cause which is contained in Section 5, Lim. Act. In my opinion it is impossible to attribute this meaning or this result to the very general provision of Section 52 of the Ordinance. In the first place it is very difficult to see that the phrase

the provisions of any other law for the time being in force in so far as they may be applicable

could have any such effect in view of Section 29, Lim. Act, as to introduce Section 5. But, apart from this question, the provision as to limitation contained in Sub-section 2, Section 39 of the Ordinance is a specific provision the consequences of which are provided for as a matter of limitation by Section 29, Lim. Act. These have been prescribed or provided for in advance. A wholly general provision could not be read as interfering with this specific provision with regard to limitation. Generalia specialibus non derogant is a maxim which is clearly applicable to Section 52 if it is argued that Section 39(2) of the Ordinance is to be controlled by Section 5, Lim. Act. In these circumstances, I arrive upon this question at the same result as was arrived at by the Madras High Court in the case of Mittoor Moideen Hajee and others reported in A.I.R. 1923 Mad 95. It is certainly somewhat alarming that limitation for so short a period as seven days should not be one over which the High Court in a proper case should have any power of control or dispensation; but it is necessary to base our construction of the Ordinance and of the Limitation Act upon principle, and it is not possible for us on the ground of hardship to give another meaning to the Ordinance. In these circumstances it would serve no purpose as regards this appeal to direct any inquiry whether this particular accused had any sufficient cause for not preferring his appeal in time. In view of what he said at the conclusion of his trial, it may or may not be probable that the delay was due to a sufficient cause; but that is a matter which it is not now necessary for us to decide.

11. Mr. Basu in the interest of the accused has asked us to examine into this case under the general power of superintendence which was given in certain terms by Section 15 of the High Courts Act of 1861, and in rather different terms by the Government of India Act, Section 107. He has invited us to interfere on several grounds. He has thrown a doubt upon the right of the particular Special Magistrate to deal with the case in view of the fact that the first Magistrate who dealt with it said that as he had heard the confessions of the accused and certain other persons connected with it he would prefer that some other Magistrate with a more open mind should deal with the matter. It is therefore said that, by virtue of Section 51 of the Ordinance, this Magistrate had no jurisdiction to deal with the case. As regards that, I am of opinion that contention has no foundation. It is quite unnecessary to read Section 51 as meaning anything such as is suggested. It is not possible to argue that in such a case if a Magistrate for good reasons does not wish to try a case or is unable to try it the case may not be tried by some other Magistrate. The first Magistrate in this case apart from taking cognizance of the case did not take any part in the trial. The change was entirely in the interest of the accused and in the interest of maintaining an attitude not only of absolute lack of prejudice but manifest lack of prejudice to the accused.

12. Then it has been suggested that we should interfere because while the accused was found guilty under Section 19(f) Arms Act, he was not guilty under Section 20. I can only say that it seems to me to be a plain case under Section 20. Section 19(f) deals with the mere question of having in possession or under control a weapon. A person may commit a breach of the law so far as that is concerned without being guilty of anything much worse than negligence or inattention. But Section 20 provides a heavier penalty in cases of possession where there is an element of concealment. As regards that the accused himself does not complain that he is not guilty. He did not do so in the trial Court and he has not done so in his memorandum of appeal to us. I am bound to say that in this matter on the facts disclosed I agree with the lower Court that he is guilty under Section 20. Here is a man who, according to his own statement in open Court, and certainly according to the evidence was in possession of a revolver and cartridges. He gave the revolver to somebody for the purpose of keeping it concealed. It is evident that his possession of this revolver was at any rate in some way connected with his political opinions because he asked for a heavy punishment and said 'freedom first'; and it is a little difficult to see what this could have to do with the case unless he was a person who was committing a breach of the Arms Act in connexion with his political activities.

13. I cannot say that it is in any way evident to me that there is any necessity for minimizing the gravity of the offence. One can see easily enough what was quite likely to happen. If a person of such political opinions as are in some way connected with a revolver was keeping the revolver concealed in the custody of a friend, then there is a high probability that sooner or later this revolver would be found to have been used by somebody very probably by somebody of the age of 16 or 17. It is very necessary at the present time, when there is clear evidence of revolvers being kept in connexion with political movements, that the offence when it ia made plain should be visited with a severe punishment. The accused said nothing to the trial Magistrate to show that he was in any way repentant. He appears to be a person who did his very best by bravado to adopt a contumacious attitude as long as he could. In these circumstances, the Special Magistrate thought that the maximum sentence prescribed by the law for offences under Section 20 would be appropriate. I am bound to say that I saw no reason for this Court to disagree with him. It is a heavy sentence even for an offence under Section 20 and it is the maximum sentence; but it is very necessary that the powers of the Court should be employed in putting down these very dangerous crimes of possession and concealment of arms. I cannot think that there is anything in this case calling for interference by this Court and I should be of the same opinion whether this matter came before us in appeal or in revision.

14. On the merits therefore the appeal to Section 107, Government of India Act, does not in this case avail the accused at all. I desire to say nothing in the present judgment about the meaning of the word 'superintendence' as it occurs in Section 107, Government of India Act and Section 15 of the Act of 1861. When necessary, it may be a proper thing to examine the decisions so as to come to some conclusion as to the way in which the ultimate powers of the High Court under these sections should be regarded. It is not necessary at the present instance to do so and I prefer to wait till it becomes necessary before laying down any principle. The result is that the appeal is dismissed.

Pearson, J.

15. I agree.

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