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Kalijiban Bhattacharjee and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1936Cal316,163Ind.Cas.41
AppellantKalijiban Bhattacharjee and ors.
Cases ReferredDeputy Legal Remembrancer v. Karuna Baistobi
- it was an order of such a kind that under section 25, bengal terrorists act, it deprived the accused persons of the right of trial before a judge and a jury, this want of proper proof was more than a mere technical omission. as i understood the argument which was placed before us, it was this: that the letter in question was not the original order from government but was merely a copy and as it was a copy only, it was necessary that the provisions of section 78, evidence act, should be closely followed. on the other hand, it was argued by the crown that this was not a copy of an order at all, that it was an original order and that under section 57, evidence act, the court in such circumstances would take judicial notice of such a letter without proof; and if judicial notice could.....

Cunliffe, J.

1. In the month of December 1934, 15 persons consisting of young men and boys were put upon their trial for the crime of being engaged in a conspiracy to commit various offences under the Arms Act. The Government had ordered that these 15 persons should be tried by a Magistrate with special powers. The Magistrate convicted 13 of the accused and acquitted the other two. Of the 13 convicted men, two were given light sentences and did not appeal. The remainder are before us now in this group appeal.

2. Two points of law were taken both before the learned Magistrate and before this Court which I think it is convenient I should deal with at once. The first point was a plea of the jurisdiction of the Court. It was argued that Ex. 1 in the case, Government's order for the prosecution, had not been properly proved; and as it was an order of such a kind that under Section 25, Bengal Terrorists Act, it deprived the accused persons of the right of trial before a Judge and a jury, this want of proper proof was more than a mere technical omission. As I understood the argument which was placed before us, it was this: that the letter in question was not the original order from Government but was merely a copy and as it was a copy only, it was necessary that the provisions of Section 78, Evidence Act, should be closely followed. On the other hand, it was argued by the Crown that this was not a copy of an order at all, that it was an original order and that under Section 57, Evidence Act, the Court in such circumstances would take judicial notice of such a letter without proof; and if judicial notice could be taken, and was taken, of the letter, then the presumption in law set out in Section 79 of the Act, would at once arise and there was no evidence that presumption in law had ever been rebutted or had been attempted to be rebutted. The document in question is headed ' Government of Bengal, Political Department, Political Branch, No. 12783 p. Order dated Calcutta 16th November 1934.' It then sets out the names of 18 persons who in the opinion of the Governor in Council have committed offences under various sections of the Indian Arms Act and under each and all of these sections read with the criminal conspiracy section of the Indian Penal Code. The letter goes on to say:

Now, therefore, in exercise of the power conferred by Section 25, Bengal Suppression of Terrorist Outrages Act, 1932, the Governor in Council is pleased to direct that the said persons shall be tried by the Sadar Subdivisional Magistrate of Rangpore, Babu Purna Chandra Acharji, who has been invested with the powers of a Special Magistrate.

3. The letter ends with:

By order of the Governor in Council.

J. George.

Under Secretary to the Government of Bengal.

16th November 1934.

4. On the left hand bottom corner of the letter is affixed the official seal of the Government of Bengal. It is my opinion that this letter is not a copy at all. It is an original document within the meaning and intention of Section 49, Government of India Act, 1919, the material portion of which runs thus:

All orders and other proceedings of the Government of a Governor's province shall be expressed to be made by the Government of the province and shall be authenticated as the Governor may by rule direct, so, however, that provision shall be made by rule for distinguishing orders and other proceedings relating to transferred subjects from other orders and proceedings.

Orders and proceedings authenticated as aforesaid shall not be called into question in any legal proceeding on the ground that they were not duly made by the Government of the province.

5. As I have said, I consider that this letter, which is in the form of an official order, fulfils the requirements of that Section of the Government of India Act, and if it does so, it cannot be called into question. The necessity, therefore, of the usual mode of proof of Government documents which do not prove themselves, and which is alluded to in Section 78, Evidence Act, the Section which embodies the well known English principle of the law of evidence, has no application.

6. The second point of law which was raised in the case on behalf of one of the accused was this (and it may be said at once that if this contention was good in law, it would have a most material effect on the appeals before us) that whereas, evidence was given before the learned Special Magistrate that on information contained in the confession of an accused a visit was made by that accused himself, together with certain witnesses and Police Officers, to a spot where arms were concealed, and during the time that the arms were dug up on the information of the accused person in custody various conversations took place between the accused and the police which amounted to conversation to the detriment of the accused person and actually adding to the confession he had already made then, on the authority of a decision of the Bombay High Court in Emperor v Hira Gober 1919 Born 162, the whole of this evidence must be excluded because, presumably, the whole incident is tainted by the verbal communications which the accused made to the police at the time of the search. In fact, what we are asked to do is to apply the provisions of Section 27, Evidence Act, the section which deals with statements made to Police Officers, a highly artificial reservation of the law of evidence peculiar to the Indian Empire, which controls and circumscribes the provisions of Section 8, Evidence Act, which deals with the proof of conduct. This section (Section 8) embodies in a statutory form the rule of evidence that the testimony of res geste is always allowable when it goes to the root of the matter concerning the commission of the crime.

7. The first criticism to be made of this argument is this: that if we examine the Bombay case, we find that the facts on which the Bench of the Bombay High Court acted are by no means cognate to the facts here There was very little conduct called into question in that case. It was all talking. What, however, is a much stronger criticism of the contention is that such an argument runs straight in the teeth of what a Special Bench of this High Court decided not so long ago in Emperor v. Rafigueuddin Abmed 1935 Cal 184, where Mukerji, J., in very cogent language shows how conduct in these circumstances should always be allowed to be proved. 1 respectfully agree with the view he takes which in my opinion is both good law and good sense, because, if proof of conduct in such circumstances was to be excluded, it seems to me that a certain type of peculiarly subtle crime would probably never be detected at all and it could be effectively withdrawn from detection by some clumsy handling of the case by the police. Here, in my opinion, the Police Officers acted in this regard with complete propriety. They summoned the search witnesses and they conducted the search in those witnesses' presence.

8. It now becomes necessary for me to refer generally to the facts of this case as shown by the record of the evidence proved before the learned Special Magistrate. It appears that there is in this province a revolutionary society which is known as the Jugantar party It is a society whose aims are the overthrow of the British Government and it recruits outsiders and prepares for that contemplated overthrow by the collection and provisions of arms to those persons whom it is possible to enlist in its ranks. At the town of Rangpore there were a number of young men undergoing their education and if one may say from the general impression made on one's mind at any rate by the evidence very ordinary simple typical schoolboy individuals they were. The methods of the senior revolutionaries, the persons who were already in the association, were effective and cunning. They would get hold, either by themselves or through likely younger members who had already been recruited, of these boys. They would first encourage them in the habit of reading the books in the Tarun Samiti Library. At the beginning these boys would be encouraged to read works of adventure and romance, books such as Victor Hugo's 'Les Miserables', 'Gulliver's Travels', Lamb's 'Tales from Shakespeare' and Rider Haggard's 'She' (all works perfectly inoccuous in themselves). After they had given these books out of the library to these lads to read and had discussed them with them, they then began to increase their education. The boys were given books about national heroes who had achieved the freedom of their country from foreigners. They were given, for example at this stage of the life of Terrence MacSwinney (who starved himself to death in prison), 'Ma' by Gorky, Sun-Yat-Sun, also the life of De Valera and a number of works referring to the revolutionary heroes of their own country. Mixed, with these, there were also books about Soviet Russia. We find for example among them the life of Lenin and Various other volumes devoted to communist aims and the communist system. By the time the boys had digested this literary collection in a number of cases they were quite ripe for another approach.

9. They were enrolled as minor conspirators and informed of the aims of the association. They were asked if they would join the underground arms traffic and were duly tested by being given from time to time revolvers, automatic pistols, ammunition for the same and daggers. One cannot help being struck by the fact that it was either part of the system or it was part of the test of these young men that they never seem to have had these arms in their possession and custody for any long time; they were constantly being taken away to somebody else. No doubt that system was very valuable to the revolutionaries for the purpose of putting the police off the scent. Other features of the association which attracted the young men were that it had its athleti side. There is evidence that the boys were extremely interested in a game called the Hadudu in which various teams took part and there was actually a knock-out tournament for this fashion, because we find from the evidence that on a certain day the final of the Hadudu tournament was played and one of the accused was the Secretary of the Hadudu League. For the purpose of interesting them and, no doubt, educating them also, in the evening they used to be taught dagger play and one of the accused also relates how they formed a dramatic society together under supervision and performed a play of a patriotic character in which the boys took the parts of various Hindu patriots headed by the well known historical figure Rana Pratap who was throughout his life in opposition to the Emperor Akbar. That is the outline in brief of what these boys were doing and were persuaded to do.

10. The evidence before the Special Power Magistrate consisted of confessions; every one of these appellants made confessions except the appellant Dhirendra and, as is not unusual in these cases, every one of them retracted his confession. Then there is the evidence of police watchers, the local persons who were employed by the police to watch the activities of the society and that of course affords very valuable evidence of association necessary to prove where criminal conspiracies were concerned. Then again we have the evidence of various persons who were present when the arms and the ammunition were detected. We have also an arms expert who gives his testimony as to the condition of the revolvers and pistols when they were found and, perhaps outstanding of all, we have the evidence of 3 boys who were the accomplices of the accused persons, but who had turned King's evidence or to use the expression employed in India, had be come approvers. I have mentioned that the confessions on which the learned Magistrate placed great reliance were all retracted. It is hardly necessary for me to re-state the law of retracted confessions. As I understand it the old English rule which was laid down, or exemplified perhaps I should rather say, in Rex v. Thompson. (L893) 2 Q B 12 which has been followed in this Court in the wellknown decision of Deputy Legal Remembrancer v. Karuna Baistobi (1895) 22 Cal 164 is this, that when a confession is retracted it becomes very unsafe to use the contents of that confession against any co-accused who is undergoing a joint trial with the person who made the retracted confession as to his responsibility for the crime that he is accused of.

11. On the other hand a Judge sitting alone after due consideration and taking into consideration all extraneous fact such as the statements made by the Police Officers who were originally in charge of the persons confessing, the statement of the Magistrate who took down the confession and the general tone of the confession itself together with the probabilities to be attached to the explanatory statement retracting confession can accept the confession as being a true and proper account of the necessary happenings to support the prosecution case before the Court. That is what the learned Magistrate has done here and as I know Mr. Justice Henderson's great experience in these matters, I asked him to prepare for me an analysis of the various confessions which I had the benefit to have and that is incorporated in his concurring judgment. I may say I entirely agree with his conclusions about the actual intrinsic value of the confessions themselves. That leaves me with a less heavy task with regard to the remaining evidence. (His Lordship then discussed the evidence and proceeded.) Before I come to the question of the convictions and sentences I wish to say this. I have been a little disturbed by one or two circumstances in this case. I know very little about terrorism and terrorist cases.

12. This is the first time I have ever presided over an appellate tribunal dealing with revolutionary activity in Bengal. No doubt if I were hand in glove with high personages of Government, if I were to use the elegant expression employed in the Bengal Legislative Council, accustomed to hobnob' with eminent gentlemen in the Executive and the Police services, I should not have had to ask the questions that I had to ask during the trial. What disturbed me is this, that in every confession and each statement by an accomplice, there are a number of what I imagine to be senior revolutionaries identified, who have never been put on their trial at all. I had to ask what was the reason of this. An experienced police officer who gave evidence as to the antecedents of the appellants subsequently informed me that the reason was that the authorities had evidence against these men, but it was of such a secret character and if brought to light, so dangerous to the person who gave it, that Government was forced to put these men in detention without placing them on their trial. I have no reason whatever to doubt that this is true. All I can say is that as far as this case is concerned, I think before a Magistrate determined to do his duty (as this Magistrate appears to have been) it would not have been impossible even without collecting any extra evidence at all, to have placed a certain number of these older parsons in the dock beside these boys whom, on the evidence of the prosecution itself, the older men had corrupted. It leaves a somewhat nasty taste in the mouth that this should not have been done. (His Lordship then dealt with the conviction and sentence of each of the accused.)

Henderson, J.

13. Before dealing with the evidence in detail I should like to give the reasons which have led me to the conclusion that the preliminary objection with regard to the jurisdiction of the Special Magistrate ought to be overruled. In order that a Special Magistrate may have jurisdiction to try any accused person it is necessary that the Local Government should make an order in writing within the terms of Section 25, Bengal Act 12 of 1932. What purports to be such an order was put in by the prosecution and marked Ex. 1. I may note that at the trial it was admitted without objection and it was only at the time of the argument that this question was raised. The point which has been argued is that that order has not been properly proved. On behalf of the Crown, it has been contended by the learned Deputy Legal Remembrancer that in view of Section 49, Government of India Act, such an order proves itself and it is unnecessary to give any evidence. The effect of an order of this character is frequently to deprive an accused person of his ordinary right to be tried by a Judge and a Jury or at any rate to render him liable to a sentence which could only otherwise be passed upon him at such a trial. The question is therefore of great importance and we have thought it necessary to examine it with the greatest possible care.

14. It seems reasonably plain that Section 49, Government of India Act was enacted in order to provide a means for putting the orders of the Government into proper shape. Sub-section 1 lays down the form which such orders are to take and then provides for their authentication, that is to say, it provides a method by which it may become known that they really are orders of Government. The method of authentication is to be determined by rules made by the Governor and there can be no question that Ex. 1 purports to be an order drawn up in the proper form and properly authenticated in accordance with the rules of business made by the Governor. Finally, it is provided that an order so authenticated cannot be called in question in any legal proceeding on the ground that it was not duly made by the Government. It seems to me that in a matter of this kind there are two quite distinct questions which arise for the consideration of the Court; (1) Whether in fact any order has been made at all. (2) if so, whether it is one which under the provisions of Section 49, Government of India Act, cannot be called in question in any legal proceeding. Approaching the first question, I cannot find anything in the terms of S.49 to suggest that proof of the existence of the order is dispensed with. The section does not in plain terms empower the Court to take judicial notice of the existence of such an order. I would therefore overrule the first contention made on behalf of the Crown, and I have accordingly reached the conclusion that Ex. 1 requires to be proved.

15. It was next contended by the learned Deputy Legal Remembrancer that in fact that order has been properly proved. While on this point, I only desire to say that in my opinion it is open to the prosecution to adopt any legal mode of proof they please. Although Section 78, Evidence Act, provides a convenient mode it is by its very terms not exhaustive. In the present case, the prosecution chose to produce the original order itself sealed with the seal of the Government of Bengal and signed by Mr. J. George, the Under Secretary to that Government in the Political Department. Section 56, Evidence Act, lays down that no fact of which the Court will take judicial notice need be proved, and under Section 57, Sub-section 7 of that Act the Court shall take judicial notice of the signature of any officer if the fact of his appointment is notified in the Gazette. The most, therefore, that can be said is this that strictly the prosecution should have produced the Gazette in which the appointment of Mr. George as Under Secretary to the Political Department was notified. This objection relates to the mode of proof only and should have been raised when the prosecution sought to put the document into evidence and I am not prepared to say that it deserved serious consideration when it was raised at a later stage. But in any view of the case it has never even been suggested that Mr. George was not the Under Secretary to the Government of Bengal and the proceedings in the lower Court were extremely protracted. In these circumstances, when the evidence has been minutely examined both here and in the Court below, rather than order a retrial I would allow the prosecution to produce the notification in this Court had I thought it necessary to insist upon the point.

16. The prosecution seeks to bring the charge home to the various appellants mainly by their own confessions and by proof of the recovery of various arms and ammunition. In addition to this, there is the evidence of three accomplices. My learned brother has fully dealt with that evidence and it is not necessary for me to say anything more with regard to it. All the learned advocates who have appeared on behalf of the various appellants have asked us to hold, first, that the confessions were not admissible in evidence at all and, secondly, they were not true. With regard to their admissibility, the learned Deputy Legal Remembrancer has pointed out that the term 'voluntary' is wider in meaning than the terms of Section 24, Evidence Act. He has then argued that the true position is this. If it appears to the Court that Section 24 applies, the confession must be excluded and there is an end of it. On the other hand, when once it is admitted into evidence, the defence must definitely prove that it was not voluntary in the wider sense of the term before the Court I can be asked to refuse to believe it. In my opinion, the second proposition is too broadly stated. If a confession is not I voluntary in the wider sense of the term, ex hypothesi the person who made it did not do so from any desire to tell the truth. This fact in itself introduces an element of suspicion. In such circumstances if facts are proved which suggest that an inducement of some kind, although outside the terms of Section 24, was in fact given, the Court may well refuse to accept the confession as true.

17. Applying these considerations to the confessions which are now before us, the learned Deputy Legal Remembrancer first contended that even if we accept the allegations made by the various appellants in their examination by the Magistrate as true, the confessions would not be excluded under the strict terms of Section 24. This argument clearly would not apply to the case of every appellant. Hari Narain says that he was promised that he would be released. Shibendra says that he was told that he would be made an approver. Satyendra refers to some inducements the precise nature of which has not been specified. Romesh refers to a statement which could be interpreted as a promise that he would be let off. Lal Chand and Nagendra do not state the exact reasons which led them to make their confessions. Purnendu says that in addition to other threats he was told that if he did not confess he would be sentenced to undergo solitary confinement. In fact the only two appellants who did not make any very clear statement were Biroo and Shubal who said that after having been beaten in order to extract statements from them they were threatened with another beating in the event of their refusal to confess before another Magistrate. In the result they made their statements out of fear. In my opinion, it is chiefly a matter of academic interest to discuss whether in such circumstances these confessions would be inadmissible in evidence or admissible but practically worthless. Unless we are satisfied that they are voluntary in the ordinary sense of the term we should not be prepared to attach any weight to them.

18. The appellants make allegations and suggestions to the effect: (1) that they were subjected to ill-treatment and that improper inducements or threats were hold out, and (2) that the confessions were in fact false; the police wrote them all out on paper and compelled the appellants to learn them by heart and repeat as much of them as they could remember to the Magistrate; and (3) that the revolvers and the ammunition were all planted in the places where they were found by the police themselves. It is quite obvious that their confessions, though involuntary, may yet be true: but in the present case the contention of the defence is that they were not only involuntary but also false. We have no hesitation whatever in rejecting the story of tutoring. It is entirely opposed to the real facts. What it implies is this: that the police themselves manufactured an entirely imaginary case, that they had everything cut and dried, but statements were written out in order that persons might be induced to learn them by heart and that ammunition and arms were concealed and scattered in various parts of the town. It seems hardly necessary to say that this is a most fantastic suggestion. The plain fact of the matter is that the Police were working in the dark and were not in a position to engineer a case on this scale. They knew of the existence of the Jugantar Party. They were also aware that there had been a good many thefts of arms during the past few months in the town of Rangpore. But apart from that, their knowledge was so scanty that when they made the first arrest, that of Purnendu, they were not in a position to send him up for trial on any charge at all, but were compelled to arrest him under the provisions of the Bengal Criminal Law Amendment Act.

19. It was only as a result of the statements made by him and other persons arrested that the Police were able to collect materials such as would justify them in making a specific charge. No facts whatever have been proved which suggest that the arms and the ammunition were planted. The confessions themselves are full and coherent statements and we have not been able to find in them anything which reflects the mind of some person other than the maker. They do not suggest that they were mere repetitions of false stories which had been committed to memory. Some statements cannot possibly have been due to tutoring by the Police. In particular I may refer to a statement made by Subal:

After Biroo's arrest I told Lal Chand, 'People say that 7 revolvers have been imported to Rangpur and the Saheb recovered all of them after sound beating.' Whereupon he said'we have connections with Calcutta-If we send intimation there revolvers are despatched.'

20. It appears to me incredible that any Police Officer would have tutored anybody to make a statement of this kind. We have therefore no hesitation in rejecting, the suggestion that these confessions were not spontaneous but were mere repetitions of statements dictated by the Police. When the accused persons are capable of making one false suggestion, they are equally capable of making: another, and it would be impossible to accept their allegations of beating without proof. There is no evidence of any such thing. None of them had any marks of beating on their persons. Before they made their confessions proper warnings were given to them and they had ample time for reflection. They never made any allegation that they had been beaten. The Were produced before the Magistrate on seyeral occasions merely in order that the Police might get a further remand. On none of these occasions did they make any complaint or reitreat tiher confessions. It was only when the Police Officers were cross-examiend trial itself that it became apparcent that these allegations would be made In such circumstances, we cannot accept the bare statements of the appellants themselves and it is therefore necessary to examine the evidence in detail to see whether any facts have been proved which would support an inference that particular confessions were not voluntary. (His Lordship then discussed the evidence concerning each accused and came to the conclusion that the confession made by each was voluntary and was corroborated by recovery of arms and ammunition.)

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