1909 (11) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the trial and conviction process.
2. Jurisdiction of the Court of Session.
3. Admissibility of confessions.
4. Validity of search and seizure operations.
5. Proof of conspiracy under Section 121A of the Indian Penal Code (IPC).
6. Proof of waging war under Section 121 of the IPC.
7. Sentencing of the convicted individuals.

Detailed Analysis:

1. Legality of the Trial and Conviction Process:
The appellants argued that the trial by jury could not be taken away by the Criminal Procedure Code, citing the proviso to Section 22 of the Indian Councils Act, 1861. However, this objection was overruled based on a recent binding decision of the Court. Additionally, the appellants contended that Barin, being a European British subject, should have been committed to the High Court as per Section 447 of the Criminal Procedure Code. The Court found that Barin relinquished his right to be treated as a European British subject, thus validating the jurisdiction of the Court of Session.

2. Jurisdiction of the Court of Session:
The appellants challenged the jurisdiction of the Court of Session to take cognizance of offences under Sections 121, 121A, and 122 of the IPC, arguing that the Local Government's authority did not cover Section 121. The Court held that the Local Government's order did not authorize a complaint under Section 121, rendering the Court of Session's jurisdiction invalid for this charge. However, the Court found sufficient authority for the charges under Sections 121A and 122.

3. Admissibility of Confessions:
The Court examined whether the confessions recorded by Mr. Birley under Section 164 of the Criminal Procedure Code were admissible. It was argued that the confessions were recorded after the enquiry had commenced and were elicited by questions. The Court held that the confessions were recorded during the investigation phase and were voluntary, thus admissible. The Court also noted that the confessions were corroborated by other evidence and were not influenced by any undue pressure.

4. Validity of Search and Seizure Operations:
The appellants attacked the searches, alleging non-compliance with the Criminal Procedure Code. The Court held that the irregularities in the search process did not render the discovered evidence inadmissible. However, the Court emphasized the need for careful scrutiny of the evidence due to procedural lapses, particularly concerning the search lists and the presence of witnesses.

5. Proof of Conspiracy under Section 121A of the IPC:
The Court analyzed the evidence to determine if a conspiracy to wage war against the King or to deprive him of sovereignty was established. The Court found that the evidence, including confessions and documents, supported the existence of a conspiracy. The Court emphasized that the conspiracy need not have an immediate purpose and could be inferred from circumstantial evidence.

6. Proof of Waging War under Section 121 of the IPC:
The Court found that the evidence did not support the charge of waging war under Section 121. The Local Government's initial view that the case did not fall under Section 121 was deemed correct. Consequently, the convictions under Section 121 were set aside due to both lack of jurisdiction and insufficient evidence.

7. Sentencing of the Convicted Individuals:
The Court considered the gravity of the offences and the educational background of the accused while determining the sentences. The sentences were revised as follows:
- Barindra Kumar Ghose, Ullaskar Dutt, Upendra Nath Banerjee, and Hem Chandra Das were sentenced to transportation for life.
- Bibhuti Bhusan Sircar, Hrishikesh Kanjilal, and Indu Bhushan Roy were sentenced to transportation for ten years.
- Sudhir Kumar Sircar, Pares Chandra Maulik, and Abinash Chandra Bhattacharjee were sentenced to transportation for seven years.
- Sisir Kumar Ghose and Nirapada Roy were sentenced to five years' rigorous imprisonment.

The cases of Krishna Jiban Sanyal, Sushil Kumar Sen, Birendra Chandra Sen, Sailendra Nath Bose, and Indra Nath Nandi were referred to another Judge due to a difference of opinion between the judges. Mr. Justice Harington later acquitted Krishna Jiban Sanyal, Sushil Kumar Sen, and Indra Nath Nandi, while convicting Birendra Chandra Sen and Sailendra Nath Bose under Section 121A.

Conclusion:
The judgment addressed multiple legal and factual issues, ultimately setting aside the convictions under Section 121 while upholding the convictions under Section 121A. The sentences were revised considering the roles and backgrounds of the accused, with some cases referred for further judicial review.