1. In these three appeals, seven accused persons are before us who were tried by a Special Magistrate under Ordinance 11 of 1931 in the District of Mymensingh. They were charged with various offences under Section 411, I.P.C., under Sections 19(f) and 20, Arms Act, and under Section 5, Explosive Substances Act, and there was also a charge of conspiracy against them all having reference to the offences indicated by these sections. The appellant Dharani Kanta Chakravarty has been sentenced to 7 years' rigorous imprisonment, appellant Sailaja Kanjan Bhattacharjya to 4 years, appellant Nikhil Bhusan Chaudhuri to 4 years, appellant Sudhir Chandra Bhattacharjya to 6 years, appellant Jagat Bandhu Basu to 6 years, appellant Profulla Kumar Majumdar to 7 years and the appellant Manindra Chandra Debnath to 5 years' rigorous imprisonment.
2. The case for the prosecution is that on the night of 22nd-23rd September 1931 the police, upon information received, carried out a search of the premises occupied by Dharani, that they went to his place with a considerable force, that they surrounded the house, different officers being posted at different places, and that all the accused persona together with Dharani's mother and a younger woman, a widowed relation of Dharani, were found in the main hut which appears to be a commodious hut with a verandah and so forth or a corrugated iron house. When they got to the house, they took up their position and waited for about half an hour before anything happened. In the meantime, efforts were made to obtain search witnesses locally; but before these witnesses were procured, Dharani came out of the hut suddenly with a revolver covered over by the end of his dhoti. He attempted to move to the west and finally threw the revolver into a tank after proceeding some little distance. He was seen doing this and was apprehended and the revolver was immediately recovered. It is also said that while this was going on certain of the persons inside the hut were seen to throw away various articles towards the north-east where there is a varandah at least partially closed up with wooden planks. When the search witnesses arrived and the hut was entered into, all the accused persons together with the two women are said to have been found in that hut. In the presence of the search witnesses, the hut was searched and the place where the articles were thrown away was searched and in the result there were recovered in addition to the revolver already mentioned a postcard with a circular portion cut out in the middle, a white paper containing some chemical formulae for the preparation of bombs and two metallic bombshells formed out of ordinary brass pots with the necks cut clean off. It appears that the revolver was one which was stolen from medical officer in December of the previous year 1930.
3. The witnesses who speak to the search are the following police men: first of all, the Sub-Inspector Abu Mahammad who is now the police officer in charge of the thana in question at Nandail, the Sub-Inspector Basanta Kumar Mukherji P.W. 7, Dafadar Debendra Chandra De, Assistant Sub-Inspector, Chintaharan Mukhoti and two constables of the names of Ashraf Ali and Raghunandan Singh. In these circumstances the Special Magistrate convicted at the accused on all the charges. He held that the revolver was in the possession of them all; he held that all of them knew that the revolver had been stolen; he held that they were all engaged in possessing and preparing dangerous explosive substances contrary to the provisions of Section 5, Explosive Substances Act, and they all entered into a conspiracy to offend against Section 411, I.P. C, Arms Act, and the Explosive Substances Act. At the hearing of these appeals, Mr. Talukdar, who appears for accused 1, 2 and 7, that is, the appellants in Appeal No. 252 supported by his learned friend who appears for accused 3, that is the appellant in Appeal No. 253, has taken certain objections: first of all, he says that the Special Magistrate had no jurisdiction because by virtue of Section 34 of the Ordinance these accused were not liable to be tried by a Special Magistrate. Section 34 of Ordinance No. 11 of 1931 is to the effect that no direction shall be made for the trial of any person by a Special Magistrate for an offence for which he was being tried at the promulgation of this Ordinance before any Court. We have examined the order sheet of the Sub-Divisional Magistrate to see whether or not the accused on 30th November or on 1st December 1931 were being tried within the meaning of that section.
4. It appears to me to be reasonably clear what the position was. The accused had been arrested and they were being detained in hajat and it appears that orders had been made allowing them bail, if they could find bail. They had not, in fact, it appears, been released on bail. On 11th November, the Assistant Magistrate not the Subdivisional Officer complained that no materials had yet been placed before him to enable him to see whether cognizance could be taken and he directed the case to be put up on the 14th; nothing had been done and the Subdivisional Officer ordered the police to make a report. On the 24th, for the first time, a charge sheet was received against all the seven accused. It appears that it charged them under the Arms Act. The charge sheet being received the order simply was 'put up tomorrow.' On the 25th there was an order about bail 'the accused may all be released on bail of Rs. 1,000 each to appear on 9th December 1931, police to send witnesses in batches.' As a matter of fact, on 9th December, the prosecution was not ready and various adjournments were taken until on 2nd February 1932 it was directed that the case would be taken up by the Additional District Magistrate as Special Magistrate. The date of the Local Government's direction to that effect is actually 6th January 1932. We have to see therefore whether on 1st December 1931 these people were, in the words of Section 34 of the Ordinance, being tried before any Court. In my opinion it is reasonably clear that they were not. The charge sheet had been sent in and the Magistrate had directed the trial to begin on 9th December 1931. No amount of metaphysical disputation about cognizance will, in my judgment, avail for this argument. At the time the Magistrate on 25th November 1931 made his order, it does not appear that he had any complaint before him or any complaint ready to be examined and he had not a single prosecution witness before him. He took no steps such as are parts of the trial. He merely arranged that the trial should begin on 9th December. The purpose of Section 34 is quite intelligible for all practical purposes and I think that, in the present case, it is clear enough that the order for trial before the Special Magistrate did not offend against that section. This objection therefore to jurisdiction must be overruled.
5. Another technical point upon which it was contended that the trial itself was bad is this: It is said that P.W. 18 after arguments had commenced was recalled on 10th March and some questions were put to him about a plan and Mr. Talukdar contends that being so all the accused should have been questioned again under Section 342, Criminal P.C. All these people were being defended and this took place at; a time when arguments were going on by their pleaders. It is clear enough that, if they wanted to call further evidence, the pleaders for the defence would have had a right to have it if they had asked for it. It is equally clear that no such suggestion was made at the time. In these circumstances, I am not going to hold that the fact that the formalities were not gone through asking these accused persons some questions under Section 342, Criminal P.C, vitiates the trial.
6. Upon the questions on the merits it is necessary, first of all, to consider whether the police evidence of the search and the articles found in the search is to be believed. (After discussing this evidence and holding that the police evidence is to be relied on, the judgment proceeded.) It being taken therefore that the police evidence is to be relied on, we have then to sea whether there is any answer to the prosecution case that these people collected at this spot and all in this hut in the middle of the night or very early in the morning for some purpose connected with the possession and manufacture of arma and explosive substances. In my judgment, there is no resisting the conclusion that the presence of these people in that hut is connected with the articles to which I have referred. In my judgment, prima facie all these persons are confronted with a strong prima facie ease and have been taken red-handed as conspirators offending against the Explosive Substances Act. It is necessary however to examine the evidence against each of these accused separately and to see whether upon the whole of the evidence affecting him his conviction can be maintained. I may say at once that in my judgment it is not possible to agree with the Special Magistrate in convicting any of these persons under Section 411, Penal Code. The theft of this revolver was not at all recent and it does not seem to me that the mere fact of possession even if the possession of the revolver was brought home to them all would be enough to show that they knew that the revolver had been stolen. After all, people who are engaged in collecting arms and explosive substances are not very much concerned whether the revolver bad been smuggled or stolen. I do not think myself that the conviction under Section 411, Penal Code, is good on this evidence against anybody. If the question were only as to the revolver and there was no other question, there too, while the case of Dharani would be clear not only under Section 19(f), but also under Section 20, Arms Act, there might be a good deal to say as against the other accused. Assuming that Dharani had collected a number of people to manufacture bombs, he might still have a revolver in his own house with which the other people had nothing to do. I am not therefore satisfied that as regards the appellants other than Dharani possession of the revolver or conspiracy to possess it has properly and sufficiently been brought home to them. In the case of Dharani however the offence is clear and plain that he was possessing it and that he was concealing it from the police is also clear.
7. We have therefore to consider the evidence from the point of view of each accused to see whether there is a sufficient case of conspiracy in connexion with the preparation of bombs and, if there is, there is to my mind, no reasonable difficulty or question about the sentences that have been passed by the learned Magistrate. Collection of people for manufacturing bombs deserves the sentence which the Special Magistrate has awarded. The same is true with regard to the other conspirators for they were actively participating in the conspiracy and caught red-handed. In the case of Dharani, I do not think that there is any defence whatsoever. Ho is the person whose hut it was; he is the person who was responsible for these people using his premises for the purpose; he was found with a revolver in his hand and trying to conceal it at the same, time when the other persons were trying to get rid of the other articles. So far as his case is concerned, the Magistrate has given him seven years under. Section 20, Arms Act, and that conviction and sentence must stand. The conviction under Section 411, Penal Code, on him must be set aside. I do not understand how a person can be convicted both under Sections 20 and 19(f), Arms Act, in respect of the same revolver. So, separate convictions under Section 19(f) may be eliminated. He has been given five years under Section 5, Explosive Substances Act, and he has been given seven years on the conspiracy charge. Save as already mentioned these convictions and sentences must stand and his appeal must be dismissed. The next person is Sailaja Ranjana. Bhattacharjya, one of the appellants in Appeal No. 251. He has been found guilty and given two years' rigorous imprisonment under Section 411, Penal Code. That must be set aside. He has also been given two years under Section 19(f), Arms Act. That may also be set aside. He has further been given four years under Section 5, Explosive Substances Act, and 4i years on the conspiracy charge. In this case, we have to examine whether the evidence is good and sufficient against him to show that he committed an offence under the Explosive Substances Act, and took any part in the conspiracy. (After discussing the evidence on this and holding it as not being proved beyond doubt, the judgment proceeded). I think that his conviction ought to be set aside and that he should be acquitted. (After considering the case of the other accused, the judgment concluded.) In the result therefore the appeals of Sailaja and Manindra are allowed and the appeals of the other appellants are dismissed as indicated above.
8. I agree.