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TMI Blog1909 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urported 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& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Briti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tt v. Assets Co. [1905] 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 5,000 to ₹ 6,000, and the overt acts disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute. 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 evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently 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 righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 handw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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