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TMI Blog1912 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... sovereignty of British India, that the appellants were the members of the association and that they had agreed amongst themselves to promote the revolutionary object with which the association was formed: that having associated themselves for this purpose, they have committed an offence under Section 121A of the Indian Penal Code. 3. Of the appellants some admit and some deny their connection with the Dacca Anusilan Samity. Those who admit their connection contend that the object with which the Dacca Anusilan Samity was formed was not merely an innocent object but that it was a laudable one, viz., that of improving the physical and mental condition of the Bengali race. They contend that the other societies, which the prosecution says were affiliated to the Dacca Anusilan Samity, were in fact independent societies and had no revolutionary or unlawful object in view. 4. The assessors, who have delivered their opinions at some length, disagree with the Judge in thinking that the object of the Samity was revolutionary: one assessor has considered the question as to which of the appellants are connected with the Society. When the appeal was called on, the learned Counsel for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the charges under Sections 122 and 123 were not pressed and no judgment was asked for or given in respect of them. 6. The first point, namely, that there was no complaint on which the Magistrate was entitled to issue process, was very strongly pressed upon us. The word "complaint" as defined in Section 4 of the Criminal Procedure Code is an allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some persons, whether known or unknown, have committed an offence; and under Section 190, a Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitutes such an offence. Then comes Section 195 which provides) that in certain cases, inter alia, charges under Sections 121A, 122 and 123 of the Indian Penal Code, unless the complaint is made by order of, or under authority from, the Governor-General in Council, or the Local Government, or some officer empowered by the Governor-General in Council in that behalf, the Magistrate shall not take cognizance of it. Next comes Chapter XVI, prescribing what the Magistrate is to do on taking cognizance and what he is to do before he is entitled to dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emn affirmation in which he proved these two sanctions and complaints. The last two petitions of complaint recited the first sanction and complaint and stated that the complainant had received sanction to prosecute other persons complained against for the same offences. It has been urged that on those materials the Magistrate had no jurisdiction to do anything and ought to have refused to issue any process at all. Amongst the cases cited by the appellants was that of Emperor v. Lalit Mohan 15 C.W.N. 98 : 8 Ind. Cas. 1059 : 12 Cr.L.J. 2. 7. But that was a case in which the name of the prisoner had been omitted possibly by accident from the complaint made before the Magistrate. It was there held, and quite rightly held, that there was no complaint before the Magistrate in respect of the person whose name had been omitted, and it was held that the fact that his name appeared in the sanction was not sufficient to give the Magistrate jurisdiction when there was no allegation before him that the person whose name was in the sanction had done anything at all. That case is quite distinguishable from the present one, because in that case the materials which the Magistrate had before him di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. All acts, therefore, done by the Local Government, inter alia, the granting of sanction, are bad. The argument of the learned Counsel cannot be limited to the power of the Local Government to grant sanction under Section 196 of the Criminal Procedure Code. If the Local Government cannot grant a sanction because the Governor-General in Council has no power to create a Local Government capable of granting sanction, then it follows that the Local Government cannot exercise any of the other functions of the Government, it cannot appoint Judges or Magistrates and the Magistrates who were duly appointed by the Local Government had no power to commit, and the Judge, deriving his authority from the same source, had no power to try the case. It is to be observed that this point was not taken on any motion before this Court, and it only comes to this Court after the trial is over and the judgment given. On the face of them, the proceedings are perfectly regular. The point is not one which under the ancient practice in English Courts would have been raised by a writ of error. It, in no way, touches the fairness of the trial or the merits of the case. No authority has been cited to support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational School for the benefit of some boys who had been expelled from the Collegiate School for, some misbehaviour with regard to partition. The National School was eventually established next door to the house at 50 Wari where Pulin resided, and there it is said, that Pulin came to instruct the youths in martial exercises with lathies, swords and daggers with the object of forming the association which afterwards became known as the, Dacca Anusilan Samity. Shortly after it was started, in other places in the Provinca and during the years 1906-07, the movements spread. There was an affray between some Hindus and Mahomedans at 50 Wari in, November 1907, in respect of which Pulin and some members of the association were convicted. In 1908 the owner of 50 Wari gave Pulin notice to vacate the premises. The Samity then moved to 452, South Maisundi, which is also known as "Bhuter Bari" Pulin occupied the house immediately behind it. On the 10th August 1908, the Samity premises were searched with respect to some suspected offence under the Arms Act. On the 5th November, another search was made which is stated to have been confined to certain documents which a boy said to have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been discussed by the learned Judge in the Court below, I cannot help thinking that it is really very much beside the point. Whether the Samity was started solely in' consequence of the efforts of the revolutionary party to utilise the discontent created by the Partition for the furtherance of their object or whether the fact that disturbances took place in Eastern Bengal and Assam, was the occasion of the formation of the Samity, does not really seem to me to touch the point. The real question at issue is what was the object of the Samity at the time when the premises were searched. Was it, as Pulin says in his statement, an association of which the chief object was to establish the nationality of the Bengalis and to secure their physical and mental improvement, or behind all this, was there the ulterior object of overthrowing by force the Government of India, a purpose to which this establishment of the nationality of Bengalis and their mental and physical improvement could be advantageously utilised? To my mind, the object of the Society is to be ascertained not only by ah examination of the evidence of those persons who have been members of it but by careful examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Samity and indicates what, in the writer's views, is necessary for this purpose. It begins by pointing out that "the attention of the people of the locality must be gradually drawn towards our object." It points out the necessity of unity and obedience to one leader, of vows and of hard and fast rules without which at no time a powerful body or military organisation can be formed, that it should be ascertained whether any new Samity has been formed without the writer's knowledge, and arrangements-, should be made for its supervision, that it should be ascertained whether members who are playing in a Samity have taken prescribed vows, that if any member of the Samity included in the writer's has been teaching plays to any one who has not taken vows, an attempt must be made to remedy this, that steps must be taken against faction which comes into existence against the Samity, that if any one by deception learns play without taking vows, arrangement should be made for complete destruction of his knowledge. Inquiry is to be made in villages as to whether the work is being carried out; important information is to be sent to the Secretary of the Samity, not by pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f there be any conspiracy against the Samity. And he will not teach the subjects in which he receives instructions in the Samity, after he is bound by an oath, to any one except those persons who are also bound by an oath. By the first of the two bishes or special vows, a member in the most solemn way vows that he will not Hive the circle till the object is fulfilled, and he will discard all ties of family affection, he will avoid all sexual indulgence, whether natural or unnatural, and he imprecates on himself a solemn curse if he does not keep this vow. Under the second special vow, a member swears that he will stake his life to do the work of the circle and for the development of the Samity, and will do utmost injury in his power to every opponent of the Samity, that he would never discuss the secrets with any body, that he will not argue about them even with those who are included in the circle. That he will carry out commands in a steady manner preserving secrecy of mantras, that he will conceal nothing from the leader, that he will engage in the practice of religion and mete out punishment to those who are opposed to it, and he will imprecate a solemn curse on himself if he f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absentee must be brought back even by the use of force. Prayers are to be said. The members are to be always present and are only entitled to leave with the permission of the authorities. Every member is to learn the vows, the duties of a manager, the Paridarsak play books and the regulation. Money obtained is to be the common property of the members. No unnecessary letters are to be written to the friends and relations. All letters for or from the members must be shown to the leaders of the circle. Members who absent themselves without the permission are to be debarred from the privileges of the Samity. Then follow some rules directed to taking care of the property of the Samity. The rules then go on to say that no member should be allowed to make arrangement for the food and board in the Samity for any guest or relation without previous sanction of the Chief. The members are to report any misconduct on the part of other members as to quarrelling or talking; and matters concerning the Samity are not to be discussed even amongst the members themselves. The rule ends up with the provision that those, who wish to go out on their own business or to become worldly men on reasonable gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to them, enabled Pulin to get persons to learn lathi play. But that the object of the Samity was solely for the purpose of providing an effective body of Hindus to defeat the Mahomedans, seems to me quite inconsistent with the object as disclosed in Paridarsak. If the association was to be a purely anti-Mahomedan association, Pulin would never have discussed the question as to why the Mahomedans were not permitted to join, Such an idea would be impossible and absurd, if the association was directed against the Mahomedans. Then, at the end of the Paridarsak, after discussing this question, there occurs a passage to the effect that in no circumstance would it be proper to show hostile feeling against or to deal unjustly with the Mahomedans as a nation. This sentiment is quite inconsistent with the Samity being aimed against the Mahomedans. That it was aimed against some body is quite clear; and if it was not against the Mahomedans, against whom was it aimed? The prosecution says it was against the English. Their contention is supported by the speculation of the writer of the Paridarsak as to the possibility of the Mahomedans joining with the English. 21. Then, there is anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Samity ever did any work for the material well-being of any village. 27. All that can be said is, that it shows, the Samities were busy collecting information about the country. The object was, I think, to enable them to extend Samities throughout the country and to keep a check on those which had been already established. 28. Besides the official documents, there was on the premises of the Samity, a library. A great deal has been said in the course of the argument for the Crown as to the nature of the books found in that library. A very large proportion of them appear, from what has been said on the other side, to have been books of harmless character which throw no light whatever on the aims and objects of the Samity. There were, however, other books which are said to have been calculated to excite hatred against the English. As to these, we express no opinion, because we have not read them. But even if they had the effect which the Crown contends, even then it has very little to do with the case. Because the utmost that can be said is that the person, in whose library they were, approved of literature of that nature. And even that assumption would not in all cases be a j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s true because much of it relating to lathi play, to taking vows, to the individuals who belonged to the Samity, is expressly admitted in the cases of many of the appellants. It becomes necessary to consider whether that part which relates to the objects of the Samity is to be believed, and to test this the documentary evidence has to be considered. 32. The result of the vows and rules is to show that an association has been formed for the purposes of furthering an object which is not stated. 33. The members of the association are bound by the strictest vows to maintain inviolable secrecy: to submit absolutely to their leaders to undergo a training of a quasi military character. On the premises of the association are found books and writings advocating a revolution by force, and stirring up hatred against those who govern. 34. If the case stood thus, then the inference that the object of the society was, in the absence of any satisfactory explanation, a revolutionary one, would, in my opinion, be justified. 35. An explanation might be given and the inference might be displaced: but the facts I have stated would be quite enough to throw on the members the onus of explaining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the house, they left the place in boats which were followed by the villagers for some distance. But none of these dacoits were ever captured or identified. The only ground on which they were said to have been members of the Samity is that they were described as bhadralok. In our opinion, this is quite insufficient to connect the Samity with the dacoity. Though it is true that if the dacoity were committed by the members of the Samity it would have been committed by bhadralok, because all the members of it are of that class, yet the converse of that proposition is not equally true, namely, if a dacoity was committed by bhadralok, it was committed by the members of this Samity. It is quite true, as Mr. Garth argues, that if the members of the Samity followed the counsel given in the Mukti Kon Pathe with respect to the collection of money for the Samity, we should find dacoities committed by bhadralok. But we do not think that that circumstance would be sufficient to bring home the case to the Samity. 42. Similar observations apply to the Dariapur Dacoity, in which the only evidence to connect the Samity is that the robbery was committed by persons of the bhadralok class. 43. A c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion appears to have been given to Mr. Dawson as to where the robbery was to take place excepting that it was to be at some place outside the Dacca district, nor was he told how it was to be made known to those who were in the boat, to what place they had to proceed. The reason for saying in the course of the argument that Hemendra and Nagendra told Mr. Dawson that a boat from Dacca would join the stolen boat is that a statement to that effect is to be found in the deposition in the Magistrate's Court which was put in the course of the trial. But no question was asked with respect to this at the trial in the Sessions Court. And Mr. Dawson's evidence and his acts seemed to be inconsistent with any such statement having been made to him. If it were true that Mr. Dawson was informed that this boat contained members of a revolutionary association, who were to join other persons of the same association at Naraingunge and then to proceed to commit robbery, it seems incredible that he, did not take any step to capture the persons who were to come from Dacca. According to the case for the Crown, the stolen boat remained at Naraingunge from the evening of one day until the afternoon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken at Naraingunge for the purpose of intimating the inmates of the boat where they were to go. No satisfactory explanation has been given of the lapse of considerable time between Mr. Dawson's direction for the arrest of the persons in the boat and their being taken into custody. During the whole of that time, nothing seems to have occurred which would enable the inmates of the boat to know where they were to go to commit the robbery. 50. The points which 'had great weight with the learned Judge were the production of the letters, the fact that Hemendra and Nagendra were able to tell Mr. Dawson that a boat was going to be stolen, the false story told by Jadu and Benode and the false petition put in by Nilmoni and the circumstance that the story now told by the appellants was not told on the trial for stealing the boat. 51. The letters are, as I have pointed out, open to the observation that they were not produced in the boat theft case. 52. The other facts seem to me not the least inconsistent with the story that the boat was taken for the purpose of going to Naraingunge to see a display. If the plan was mooted sometime before it was carried out, Hemendra and Nagendr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for 21 hours. This find cannot be regarded as having much weight, in view of the difficulties in the evidence to which I have referred. I do not think it is satisfactorily made out that the boat was stolen for the purpose of a dacoity, nor indeed can I find any corroboration of Hemendra's and Nagendra's evidence that Pulin and his Samity were engaged in it. 57. I now come to the case of the murder of Sukumar, whose dead body was discovered not far from Dacca horribly mutilated on the 13th November 1908. The case for the Crown is that this murder was the work of some members of the Dacca Anusilan Samity. The appellants contend that the Police were the persons who murdered Sukumar. It appears that a complaint had been made about the 4th November that Pulin had kidnapped a lad named Ananta. This case was being investigated by the Police and in the course of the investigation, Inspector Ashutosh Banerjee visited the house in which Sukumar was living. He took his statement and placed him under arrest. Now, when he took the statement there were present his elder brother Surja Kumar, one Abinash Ganguly, Sashi Dey and Sukumar's sister. Abinash is alleged to be related to one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he had left his house for the purpose of going to Dacca leads one to believe that he intended to carry out the condition on which he was released on bail, i.e., to make a statement before the Magistrate. The persons therefore, who would have most gained by his remaining alive and making a statement to the Magistrate were the Police who were engaged in the case. It is suggested that they tortured him, but there is absolutely no foundation for the suggestion: and as far as evidence goes it indicates that nothing would be gained by maltreating a person who was voluntarily going to a Magistrate for the purpose of making a statement. There is absolutely no foundation whatever oven for a suspicion that he was tortured by the Police. All the circumstances disclosed in the case show that they would be the last persons in the world to having any motive for injuring him. But while there is no cause for suspicion against the Police, in my view, there is nothing more than suspicion against the Samity also. No doubt, if their objects were unlawful ones, they would have an interest in the murder of Sukumar. But there is no evidence that he ever saw or spoke to any member of the Samity after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Gobesh and the only persons who, as far as is known, had any interest in the murder of Gobesh were those who were likely to be implicated in the statement he was about to make. Like the murder of Sukumar, the case is one of suspicion and circumstantial evidence is not such as would justify us in putting the case on a higher footing. 59. The Rajendrapur Train dacoity was a very serious crime which was committed on October 11th, 1909, in which one man was murdered, and a large quantity of money stolen. Three persons were in the train with the money in their charge: they were attacked by a party of young bhadralok, one man was murdered: the other two seriously wounded and the money thrown cut of the carriage after which the robbers jumped off the train. One of the party, Suresh, was identified and subsequently convicted. 60. The learned Judge finds that this man was a member of the Jnan Bikashini Shava at Madyapara and as he considers that a branch of the Dacca Anusilan Samity, he holds that the overt act has been made out. There does not appear to be any evidence connecting Suresh with the Dacca Anusilan Samity beyond his connection with the Jnan Bikashini Shava. 61. For reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a raid made at the instigation of the landlords of Naria for the purpose of bringing pressure to bear on the recalcitrant tenants. This argument was founded on the circumstance that no complaint was made to the Police Station by any person who had been robbed. Nor was there any information that any man of Naria complained of losing or having lost any property. 67. The first information was lodged by the Choukidar. This is by no means an unusual state of things. Nobody was named, because nobody had been recognised. If there had been a dispute between landlords and the tenants at Naria, there would have been no serious difficulty in eliciting that from the witnesses. There is no evidence that the landlords and the tenants were not on perfectly good terms. The circumstance that the first information was laid by the Choukidar and that no complaint was made by any person alleging to have been robbed certainly would not justify the inference that it was an attack by the landlords without any sort of evidence to show that the landlords and the tenants were on bad terms with each other. 68. The appellants endeavoured to dispose of the difficulty created by the presence of the village n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y question put to him to elicit whether he had left Dacca before or after the search of the Samity premises on November the 4th, or if he had heard anything of the Samity or anything of the search. If he left before the search, it was, of course, physically impossible for him to get the paper in the way the learned Counsel for the appellants suggests. And it is very significant that no question was asked for the purpose of showing what his movements were before he left Dacca. Then, again, there is another observation to be made that if any person had been wicked enough to have put these papers in the boat for the purpose of implicating the Samity, one would expect him to fill up the blank space with the name of the Naria village and with such particulars as to indicate that the document had been filled up to facilitate a dacoity at that place. But the village notes that appear are only the printed forms used by the Samity. It does not appear that the blanks were ever filled up. That circumstance alone would give the strongest reason in supposing that the presence of the papers was not the result of a foul play. Farther, it must be remembered that this took place in November 1908. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October the 28th. The argument is that the parcel could not have arrived before the letter, therefore, the story of this being stolen on October the 30th is a fabrication. But the stamp shows that the letter was posted on the 28th October at 9-20 P.M. and the way-bill shows that the parcel was despatched at 5-10 P.M. It is quite possible, therefore, that while the parcel was in time to go by the evening mail of the 28th, the letter posted after 9 o'clock had to wait till the following day. Though the fragments found in the chandni boat are much tattered, they show the label of a book-seller whose address is in Cornwallis Street, Calcutta. There is not the slightest doubt that the label on the wrapper was on the pracel of books that had been despatched from Calcutta by Hari Kanta and which was stolen on the night of the 30th in the Steamer Office at Nana and its presence in the chandni boat shows without doubt that the boat was used by the dacoits. 71. It is argued for the Crown that the fact that a parcel of books was stolen indicates that the dacoits were educated men. I do not think that there is much in this argument. If the books were packed in the ordinary way all that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weapons belonged to the Samity or to some member of it would be justified. 82. The arms were found in a tin box buried; how long they had been there buried we do not know: by whom they were buried we do not know. 83. The men who were seen by Hossein Ali were 40 yards away and were not seen to do anything in relation to the spot where the arms were buried. 84. The men's conduct may have been suspicious and if the evidence is true, they may have been there for no good purpose, but there is nothing to connect them with the find of arms or fib justify us in saying that this is made out to be an overt act of the Samity. 85. The Munshigunge Bomb case was the consequence of a find of bombs in the house of one Lalit Chowdhury in September 1910, and this find is connected with Pulin's Samity because when the Samity was searched, a letter, dated December 1908, signed L. Chaudhuri, was found. 86. The letter is dated from Panthbhoy: and is said to be in the hand of the man in whose house the bombs were found. 87. There is no evidence that Pulin ever replied to it or that he ever held any communication with L. Chaudhuri. L. Chaudhuri was not said to be one of the conspirators: alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers of the Dacoa Anushilan Samity that they are acquainted with the real object which is so carefully concealed in the rules and vows. 96. It is true that Hemendra says that those, who took the Adya vow, were cognisant of the revolutionary objects of the Samity. I am, however, not satisfied that this is true. The Adya vow does not contain that vow of secrecy which is to be found in the Antyd and Bishesh vows and it is extremely unlikely that so serious a matter as the revolutionary object of the conspiracy would be confided to any persons who were not solemnly bound to secrecy. The rules show that persons who had only taken the Adya vow did not know as much as those who took the subsequent vows. This induces me to believe that while lathi play and physical exercise would be held out as the ostensible object to persons, who, when they joined, were not known to be persons of strong revolutionary" desires, the true object would only be disclosed when they had taken more serious vows or were known to be persons of pronounced revolutionary ideas. 97. It is unnecessary to discuss the evidence with respect to Pulin or Ashutosh Das Gupta. The former is the founder of the Dacca Anus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oni was at the Samity premises and his name was found on a book which was in the Samity. 106. The explanation given with reference to the library issue book is, that outsiders were allowed to take books, but they had to be taken in the name of a member, that Absni wrote his name carelessly and then crossed it out as he was not a member and Ajit's name was written. This explanation does not strike me as satisfactory. In the first place, Aboni says nothing about it in his statement; he denies the writing: secondly, I do not believe that persons unconnected with the Samity would have been allowed to write in the issue book. 107. The rules as to the library are in the notification found at the Samity: that provides that only books of daily use will be allowed to be kept by members reading them after they have entered their names in the issue book. There is nothing to show that notwithstanding books might be issued to outsiders. That such could be done, rests only on Pulin's statement which I disbelieve because it is inconsistent with the rules. 108. There is another document, Village notes, with the name Ajit Kumar Gangopadhya at the foot of it. Mr. Hardless says this is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Samity both at Wari and Bhuterbari; indeed, one witness describes him as a leader at Chandraghat, but, on the other h-and, his name does not appear in any Samity papers or in any lists, and had he been the person of importance that the learned Judge thinks he was one would have expected to find his name on some of the papers in the Samity. No revolutionary writings of any sort are connected with him, The evidence of the Sub Inspector Anunta Kanta Chakravarty hardly justifies the inference which the learned Judge draws from it. If the appellant had really come down to Lakipur for the purpose of starting a Samity, one would have expected some evidence that something was done there. On the contrary, the Police Inspector himself, to whom the statement is said to have been made, expressly says he was in lathi play. 120. On the whole, we do not think it is established that he was anything more than a skilful athlete, and we do not think he conviction, as having joined the conspiracy, would be safe. 121. We, therefore, allow the appeal and set aside the conviction. 122. Aswini Kumar Ghose is a man who is admittedly a member of the Brati Samity. 123. For the Grown, it was contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hilan Samity. 131. The fact that these notes give the substance of the vows, and are not in as many words the vows themselves, lends some colour to Aswini's statement that he was unwilling to take the vows, and the letter implying that he is regarded as being the person who was opposing the attendance of members at the Anushilan Samity looks as if he was not a member; if he had been, he will have fallen within the category of those liable to punishment under the rules of the Samity. 132. There is oral evidence of Sailendra that Pulin started a Samity in Naraingunge in the end of 1906 and that Aswini was a member of it. It has been argued that this is an Anushilan Samity distinct from the Brati Samity of which Aswini was a member. This gets some colour from the letter I have referred to which is addressed to him as Secretary of the Brati Samity, Amlapara, while the Samity to which Sailendra refers was carried on at Ukilpara. 133. The conclusion to which we have come is that it has not been established without doubt that he was a member of the Dacca Anushilan Samity and that his conviction, therefore, should be set aside and his appeal allowed. 134. Bankim Chandra Roy.--Banki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cca Anushilan Samity as to leave papers relating to that body in the hands of Bankim. 140. I have not the least doubt that Bankim took the vows of the Dacca Anushilan Samity. But how far was he imbued with a knowledge that the object was revolutionary? He is a man who appears to have been regarded as having influence with Pulin, as in the letter signed Raeya Dada, the writer relies on his influence to get him sent to Serajgunge instead of Noakhali. 141. In his favour, there are no revolutionary. writings in his hand, but, on the other hand, there are very revolutionary writings in a book partly in Dinesh's hand and partly in Bankitn's hand found in Bankim's house, and it is impossible to believe that Bankim did not know and assent to these views. 142. The evidence establishes, then, he was a man of revolutionary opinions, that he had taken the vows of the Dacca Anushilan Samity and was in close and intimate association with some of the conspirators. 143. The only inference from the facts is that he knew and assented to the objects of the Samity. His appeal must accordingly be dismissed. 144. Bhupati Mohan Sen.--Bhupati was admittedly a member of the Jnan Bikashini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable doubt that Bhupati Mohan Sen is a member of the Dacca Anushilan Samity just as much as he was of the Jnan Bikashini Sava. 148. And it is impossible to believe that a member of such very seditious view was not cognisant of or had not assented to the real object of the Samity. His appeal must accordingly be dismissed. 149. Dinesh Chandra Guha is not the witness who has been referred to as being with Profalla at Bankim's house. He was in association with two members of the Dacca Anushilan Samity, in what is known as the Agartolla incident. 150. There is evidence that he was at the Samity: Upendra gives him as one of those who directly preached the driving out of the English: but as to this, Upendra is not corroborated. He was certainly a competitor in the competition of August 1908, and was one of the persons seen playing lathi at the Samity. 151. Although described as a captain of lathi play at Rajadeori, his name does not appear as such in any of the reports. 152. In short, the evidence against him goes no further than that he was a lathi player at the Samity and was in association with some of the members of the Samity, but there is nothing to show whether he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he was known within the Samity under the names of Hari Mohan Chakrabarti and Rangudada. The learned judge discusses carefully the evidence which points to the conclusion that he did bear those names. There can, be no doubt that the Judge's conclusion is right, because had the evidence which deals with it been open to criticism, all difficulties would have been set at rest by the list of names found at the Samity in the hand-writing of Pulin himself in which these two false names appear under the name of Gopiballav Chakrabarti. In short, the appellant has felt himself unable to question the conclusion to which the learned Judge has come on this point. 158. There is no oral evidence that he resided at No. 50 Wari and Bhuterbari, while these places were occupied by the members of the Samity. That only goes to show his admission as to his connection with the Samity is true. 159. His position in the Samity is shown by a letter in his hand, signed Rangudada, which shows that he was sent by the Samity authorities to Noakhali and that he was very anxious to be transferred to Serajgunge. 160. A letter signed Rangudada shows that he was very anxious to be at Serajgunge. This make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s arrested at the Samity on November 4th and was one of the five minor boys who were to be released if their guardian gave bail for them. 166. In his written statement in this case, the appellant describes himself as the son of Rajkishore Das of Sonamoyee and refers to Narsing Das whom he describes as his younger brother. 167. Although the appellant is not identified, there can be no doubt that the two documents were written by the appellant: to assume otherwise would be to suppose that there were two Gurudayal Dases of Sonamoyee, both sons of Rajkishore Das, both having young brothers named Narsing Das and both writing in identically the same hand. 168. I have no doubt that the letter is proved and that Gurudayal was a member, of the Dacca Anushilan Samity and a member of importance. He is an older man than the, other appellants. There can be no doubt that, filling the position he did, he knew all about the secret objects of the Samity. His appeal must, therefore, be dismissed. 169. The next persons whose cases have to be considered are Poresh, Hem Chandra, Saroda and Sukendra. These four persons were members of the Jnan Bikashini Sava, which is shortly referred to as the Jnan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the two societies. In the first place, the Dacca Anushilan Samity had a local habitation. There were stringent rules considerably fettering the liberty of the members who lived within the walls of the Samity, there were vows, there were oaths and secrecy and the members were not even permitted to discuss the affairs of the Samity among themselves. The Jnan Bikashini Sava appears to have had no local habitation. The papers belonging to it were found at the house of a man named Gobardhan, There is evidence as to the binding of the members of the Jnan Bikashini Sava by vows. The members were not under strict discipline which obtained in the Dacca Anushilan Samity. Nor would it have been possible to place them under that discipline without establishing the Jnan Bikashini Sava in the same house. Secrecy and silence do not appear to have distinguished the Jnan Bikashini Sava. Its proceedings show that there were meetings at which seditious literature were read and the members seem to have been free to speak and read as they like. The only evidence with regard to the vows is that a couple of Aiya and Antya vows were found in a note-book belonging to Poresh, a member of the Jnan Bikas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resented as following the precepts of Mukti kon Pathe. And it is difficult to believe that the writer has not derived his idea from that work. 175. The very great mass of documents coupled with his admission leaves no doubt that he was a member of the Dacca Anushilan Samity and that the seditious literature shows that he was a person of strongly revolutionary feelings. 176. As in the other cases where a person has displayed in his writings violent revolutionary, ideas, and is a member of a society, the ultimate object of which is revolution, the only conclusion that can be come to is that he was a party to revolutionary object of the Samity. 177. His appeal must, therefore, be dismissed and conviction affirmed. 178. Nishi Bhusan Mitra is a man who, on his own showing, spent three or four months in the Samity where he says he was a teacher only, and that he did correct exercises, is shown from the books found on the search. There is no doubt that the Judge has come to a correct conclusion with regard to him. 179. In the first place, it is in the highest degree improbable that a man would have been permitted to stay in the Samity in the important position of a teacher unless he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of what Nitai, who was then in custody, said at the Police Station that his name was discovered as Radhica. A man of the name of Kali Charan, who is a contractor at Noakhali says that a man named Radhica came to Noakhali and gave him instruction to erect two huts for lathi play. The criticism, to which Kali Charan's evidence is open, is that in the Magistrate's Court, he appears to have identified a wrong man as Radhica. He says that he did not, but he admits that he only saw Radhica twice. It is, therefore, necessary to see how far other evidence corroborates this witness with regard to Radhica's going to Noakhali. There is no reason to suppose that the witness is not speaking truth in the story he tells us of the visit to Noakhali by one Radhica. It is clear, therefore, that some man named Radhica did go to Noakhali for the purpose of establishing a lathi play. His name appears in the report made by Bankim after his visit to the Bhuterbari premises on the 2nd December 1908. But I do not think the statement made to the constable on that occasion in Radhica's absence is admissible. Rejecting that, there is the fact that after Radhica had been arrested by Bankim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce that Nishi is the appellant. 190. It has been argued that this Habiganj Central Samity has been organised as Pulin recommends, but there is no direct evidence to support this contention. There is evidence that a man came from Dacca to teach. There is evidence that vows were administered to the members of the Habiganj Samity and the members of that Samity indulged in lathi play, but I don't think that this is sufficient to justify the conclusion that the Habiganj Samity was a branch of the Dacca Anushilan Samity. We do not know what the vows administered in the Habiganj Samity were, and even if it were accepted as clear that this Nishi was the man who played lathi at War and Bhuterbari, yet even then there would bi nothing to show what his position was in the Samity at Dacca. He had an authority to inspect but this authority was not issued be Pulin nor does it appear to have emanatey from the Dacca Anushilan Samity--on thd contrary, it issued from the Habiganj Samity and the Habiganj Samity is not shown to have, been connected with the Dacca, Anushilan Samity. 191. We do not think that his conviction can safely be affirmed: we accordingly allow the appeal. 192. Nitai Chand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his length of time to the Police custody. Whatever the reason may be, it could not have affected the statement which ha made on the 31st July, for that was made a day after his arrest and before he had been remanded to Police custody. But, then, on the other hand, there is this observation to be made with regard to the statement, he was strongly interested in trying to put the blame on somebody else. Mohim made a statement on the same day, whether before or after Nitai, it does not appear. And Mohim endeavoured to put the blame with regard to the possession of these articles on Nitai's shoulders while Nitai tried to put it on Sachindra and Ashu Dass. On the one hand, if Nitai had nothing to do with the things, one would expect him to deny altogether any knowledge of them as soon as he was brought before the Magistrate. On the other hand, if he knew Mohim's statement, he might have thought that Mohim had been successful in putting the blame on him and that his safest course was to try to put his balme on some one else, I do not feel very great confidence in that statement. 193. Now, the only evidence to connect the weapons in question with the Samity is that statement made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the oral evidence as to his presence at the Samity and his association with Nagendra is much weakened by the circumstance that no sanction for his prosecution was applied for till after the Arms Act case. In his favour, it is to be observed that his name does not appear in any document belonging to the Samity. Upon that, it is argued that his position was not really an important one. 196. The result of the evidence comes to this, that Nitai was a member of the Samity, that he was in possession of certain warlike books and weapons at a period long after the time when the Samity had ceased openly to exist. The articles are not shown to be connected with the Samity. The books are not shown to belong to the Samity Library and they are traced no nearer than Nitai himself. These facts are consistent with the articles having belonged to Nitai in his private capacity. As against him there is oral testimony: but that is not sufficient to show that he started a Samity at Sunamgunj, or came armed from Pulin with the authority of an Inspector, but, on the other hand, it is in his favour that he is not connected with any of the revolutionary writings. The evidence, therefore, in our view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant with the object for which the Samity was established. I agree, therefore, in the conclusion at which the learned Judge has arrived with respect to Promode.? 199. His appeal must be dismissed and his conviction affirmed. 200. Prafulla.--Prafulla admits that he was a member of the Dacca Anushilan Samity but denies that he had anything to do with the Jnan Bikashini Sava. As I have come to the conclusion that the Jnan Bikashini Sava cannot properly be described as a branch of the Dacca Anushilan Samity, it becomes unnecessary to discuss the evidence of Prafulla's relation to the Jnan Bikashini Sava or to determine whether he was or he was not a member of that body. The difficulty of determining whether he was a member of the Jnan Bikashini Sava or not, lies in the fact that there was a number of persons bearing the same name as he himself, belonging to the Jnan Bikashini Sava. 201. But with regard to the Dacca Anushilan Samity, even apart from his admission, there can be no doubt as to his being a member. His name appears in a very large number of documents found at the Samity. And a letter produced shows that he was is close association with Dinesh and Bankim. He was identi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the members of the Samity. He is also identified by Sarat Chandra Ghose. There are documents found at the Samity which are said to be in his hand-writing, particularly one, an arithmetic book, which bears his name, in his hand. There is another magazine on which Sarendra's name appears. Although the 'Ghose' resembles 'Ghose' written by Sarendra, Sarendra appears to hare been differently written. In the account of the Samity, the name appears, but it is conceded that there is nothing to show that that Surendra refers to this man. An important piece of evidence is that given by Satish Chandra Ray, who has known Surendra Mohun Ghose since 1907. The witness lives at Olpur and says that Snrendra Mohun Ghose came there, that he said that he had come to Olpur from Dacca as an Inspector of the Anuahilan Samity. There was an Anushilan Samity at Olpur. Drill and mock fight were openly carried on at that place. It is not stated that this Samity was started by Surendra nor has it been shown to have been connected with the Dacca Anushilan Samity. The only evidence that he was there as a person of authority from the Dacca Anushilan Samity is the admission said to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e difficulty as to this is that what Ashutosh said is not evidence against Surendra, and Abdul Gani, although he gives the name of the man who taught lathi at Comilla, is unable to identify him. 215. In favour of Surendra, it is to be observed that no seditious writings are traced to him; on the other hand, if Pulin's statement which can be looked at under the Evidence Act be true, then he had taken both the Adya and Antya vows and the number of lathi play books in his hand would justify a. suspicion that his position in the Samity was something more than that of a mere teacher. 216. The case is one which falls very near the line. On the whole, we do not think that the evidence of his being a teacher at Comilla is satisfactory: he is not connected with seditious writings. We think, therefore, that his appeal should be allowed and conviction set aside. 217. Suresh Chundra Sen.--Suresh Chandra Sen, was a shop keeper in Dacca. He was arrested at the time of the Wari Affray case and was subsequently discharged. The oral evidence against him is that of Upendra, who says he was a member of the Samity and of Sarat Ghose, though the latter's evidence was not relied on by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me does not appear in any report. The result is, with regard to this appellant, the evidence is purely oral, and even if it is conceded that he belonged to the Samity, there is nothing to show what position he held or how he was implicated in it. He is not connected with any seditious writings: we do not think it will be safe to uphold his conviction. It is, therefore, set aside, and he is acquitted. 222. Santipada.--Santipada admits that he was a member of the Dacca Anushilan Samity since 1908. 223. He was one of those who took part in the Agartola incident when with two others he was found loitering at a place to which the Lieutenant-Governor was expected to come. It was reported that he and his companions were there with the intention of doing some mischief. But as, when they were searched, nothing compromising was found on them, the suspicion cannot be justified notwithstanding the fact that they gave false names. 224. But in this case of Santipada, there were not only his admission and oral evidence to support it but there were a great number of lathi play books found at the search of his house, one of them containing the Adya and Antya vows. There was also a book of rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. A number of witnesses speak to his presence at the Samity both at Wari and at Bhuterbari amongst those playing lathi: but he cannot have been seen by any Police officer between September 1907 and June 1908 as he was in hiding (hen, as there was a warrant out against him for being concerned in a stabbing case, and if seen, he would have been arrested. 230. His house was searched and nothing found. Assuming that he did, play lathi, there is nothing to show how far he Was in the secrets of the Samity. 231. here is evidence that he was the leader of the lathi play in the Jindabahar branch of the Samity, but if that were the case, one would have expected to find some mention of him in the Police reports. 232. In the long and elaborate report of Hossein, his name does not appear though Jindabahar men are to be found there and in the list of captains his name is absent. 233. The absence of his name from, these papers makes it doubtful whether he was as prominent a man as would appear from the oral testimony. 234. He is unconnected with any revolutionary writings. On the whole, we think that it is not clear that he held a position of importance in the Samity, or was acquainted with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta.--Nripendra Mohan Gupta is a man who was admittedly a member of the Jnan Bikashini Sava, and he denies that he belonged to the Dacca Anushilan Samity. That he was a person of revolutionary desires is clear from his essay on Freedom. It was found in the search which brought to light the other papers appertaining to the Jnan Bikashini Sava. He was clearly at the head-quarters of the Dacca Anushilan Samity at the time of the Wari Affray case. And his connection with the Samity depends really on a letter which was found at No. 50 Wari. This letter was dated the 12th January 1908 and would appear to be a reply to a letter which was written on the 4th January 1908 by one Upendra Mohun Gupta, This letter asks about your cases and asks 'who of our village are involved in it'. Then the letter which shows the connection of Nripendra with the Samity is dated from 50 Wari and says Charu, a fellow of our village, and myself were implicated in this case and oar case came up for hearing on Monday and it goes on to say who were residing on the premises and they had nothing but lathi play. He says that any one who was living here had to dedicate his life to the interest, of the Samity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jee, J. 250. This is an appeal on behalf of 35 persons who have been convicted under Section 121A of the Indian Penal Code. Originally, 45 persons were prosecuted, of whom one was discharged by the committing Magistrate, and 8 others have been acquitted by the Sessions Judge. Of the remaining 36 persons, one is said to have become insane and has not appealed to this Court. We are, therefore', concerned with the oases of the remaining accused persons only. On their behalf, the judgment of the Sessions Judge has been assailed not only as contrary to the weight of the evidence on the record, but also as bad on four grounds of law, each of which, it has been contended, is sufficient to vitiate the convictions. These grounds must obviously be considered in the first place, and they have been formulated by the learned Counsel for the appellants in the following form, namely, first, that the proceedings are bad because they were not upon complaint made by order of or under authority from the Local Government within the meaning of Section 196 of the Code of Criminal Procedure; secondly, that assuming that there was a sanction by the Local Government, the sanction was bad for vagueness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Proclamation 2832 of the 1st September 1905 for the constitution of the Province of Eastern Bengal and Assam was ultra vires and that the result achieved by means of the Proclamation could have been validly attained only by Parliamentary Legislation, in view of the provisions of 3 and 4 Will. IV, c. 85; 5 and 6 Will. IV, c. 52; 16 and 17 Vict. c. 95; 17 and 18 Vict. c. 77; 24 and 25 Vict. c. 67; and 28 and 29 Vict. c. 17. Section 38 of 3 and 4 Will. IV, c. 85, provides that the Presidency of Port William in Bengal, is to he divided into two Presidencies, namely, Bengal and Agra. Section 56 provides that; the Executive Government of the Presidencies is to be administered by the Governor in Council, of the Presidencies of Fort William in Bengal, Fort St. George in Madras, Bombay and Agra respectively. The Statute 5 and 6 Will. IV, c. 52 gives powers to the Court of Directors to suspend the execution of these provisions so far as they relate to the creation of the Government of Agra, and during such suspension gives powers to the Governor-General in Council to appoint a Lieutenant-Governor for the North-Western Provinces. Under Section 15 of 16 and 17 Vict., c. 95, the suspension is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion, there is some apparent force in the contention of the appellants that the language of the Statutes has been strained and their provisions applied in a manner not contemplated by the framers thereof. But it is not necessary to pronounce a final opinion upon the legality of the procedure adopted for the constitution of the Province of Eastern Bengal and Assam for the appointment of a Lieutenant-Governor of the Province so constituted, because in my view the question dues not arise in the present proceedings. The complaint in the case before us was made under authority from and by order of the de fucto Local Government and was sufficient for the validity of the proceedings. The learned Counsel for the appellants has contended, upon the authority of the decisions in Empress v. Burah 4 C. 172 : 3 C.L.T.197 : 5 I.A. 178 and Hari v. Secretary of State for India 27 B. 424 : 5 Bom. L.R. 431 that it is competent to the Court to examine the legality of the procedure adopted for the creation of the Province; this position may be conceded to be sound [cf. Dicey on the Law pf the Constitution, pp. 96-98]; but the true question which requires examination is, whether the sanction by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial and sentence. The validity of their title to the office, and hence of the composition of the Court, was questioned, in-appeal on the ground that they had been elected to their office unconstitutionally. It was held that they were Judges de facto and as against all parties but the Commonwealth they were Judges de jute, and having at least a colour of title to their offices, their title thereto could not be questioned in any other form than by quo warranto at the instance of the Commonwealth. The result was that the burners of the dwelling-houses went to the penitentiary for eight years, though at a subsequent term the associate Judges were ousted in an action in quo-warranto brought by the Attorney-General. Of like import is the decision in Coil v. Commonwealth (1883) 104 Pa. 117 and the murderer was executed. See also State v. Carroll (1871) 38 Conn. 449 : 9 Am. Rep. 409; State v. Gardener (1896) 53 Ohio St. Rep. 145 : 31 L.R.A. 660 and King v. Philadelphia Co. (1893) 154 Pa. 160 : 31 L.R.A. 141 : 35 Am. St. Rep. 817. A somewhat similar attempt was made in this country in Queen Empress v. Ganga Ram 16 A. 136 : A.W.N. (1894) 39 where the appointment of Mr. Justice Burkitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, as is clear from a long series of decisions dealing with its various features and expanding its principles to meet the requirements of diverse circumstances and different times. We may briefly state that these cases illustrate the following positions: first, that a parson presented by an usurping patron, who was wholly without authority to present, was a good parson de facto: Abbey of Fontaine (1431) Y.B. 9 H. 6 Fol. 32; secondly, that a clerk of a Lord of the Manor holding a manorial Court without any authority whatever and deriving colour only from his known relation to the Lord of the Manor as a simple clerk, was a good officer de facto: Knowles v. Luce (1580) Moore 103; thirdly, so of the servant of a steward holding a manorial Court without authority from the steward or the law: Lord Dame's case (1553) 1 Leonard 255; fourthly, so of the deputy of a deputy to whom authority could not be delegated : Leak v. Howel (1596) Cro. Eli. 533; fifthly so of the steward of a manor appointed not by the Lord who alone had the power to appoint, but by county officers who had no authority whatever to appoint: Harris v. Jays (1599) Cro. Eli. 698; sixthly are-affirmation of the doctrine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttled that all judicial acts done by Henry VI while he was King and also all pardons of felony and charters of designation granted by him are valid." The history of England affords another memorable instance of the application of the de facto doctrine. On the death of Charles I, Charles II immediately became King of England de jure, and the years of the reign of Charles II are to this day counted from, the death of Charles I; yet there was an interval of eleven years between the death of Charles I and the restoration of Charles II, during the greater part of which, under the Protector, a government maintaining order and able to enforce its authority existed. Sir Matthew Hale, though he never formally recognized the government of Cromwell, sat as a Judge of the Common Bench, as the Court of King's Bench was called in Cromwell's time, administering the plenary jurisdiction of the Court, in the adjudication of cases involving title to property as well as those affecting civil liberty. At the Restoration, he sat in the same Court as Lord Chief Justice of the King's Bench. His explanation is well known, and was to the effect that the public business must go on and justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aries through whom it exercised its various powers, on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined. See the observations in Scudding v. Lorant (1851) 3 H.L.C. 418 : 88 R.R. 144 affirming 13 Q.B. 706 and Norton v. Shelby County (1885) 118 U.S. 425 : 30 Law. Ed. 178. In the matter now before us, the. sanction under Section 196 of the Criminal Procedure Code was granted by the de facto Local Government and the cognizance of the case has been taken by the de facto Sessions Judge, In my opinion, it is not open to the appellants to question collaterally the legality of the conviction upon the allegation that the Local Government was irregularly constituted and the Sessions Judge irregularly appointed. The first ground upon which the legality of the trial is assailed must, consequently, be overruled. 258. In so far as the second ground is concerned, it has been contended that the sanction under Section 196 of the Criminal Procedure Code is vague, because it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint for reasons to be recorded or issue process against the accused. It has been argued that in order to enable the Magistrate to exercise his judgment in this matter, it is essential that the complaint should be a complaint of the facts which constitute the offence, and that in the case before us, this condition has not been fulfilled. The complaints do not set out the facts. I shall take as an illustration the first of the three complaints on the record dated the 29th July 1910. The petition of complaint is headed as a complaint of offences under Sections 121A, 122, 123 of the Indian Penal Code, and then proceeds as follows: "Your petitioner has reasons to believe that the persons named in the Government order dated the 26th July 1910, which is hereunto annexed, have amongst themselves and together with other persons known or unknown conspired to wage war against His Majesty the King and to deprive His Majesty of the sovereignty of British India, and they have collected arms and have otherwise prepared to wage war with the intention of either waging war or being prepared to wage war against the King, and have further concealed with intent to facilitate a design to wage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge descriptive of the general nature of the offence denounced, the complaint should embody a particular state-. ment of the facts and circumstances: Rex v. Peck (1889) 9 A. & E. 633 : 1 P. &. D 593 : 8 L.J.M.C. 22; Pettibone v. United States (1832) 148 U.S. 197 : 37 Law. Ed. 419; McClain on Criminal Law, Vol. II Section 984; Bishop on New Criminal Law, Vol. II, Section 202; Bishop on New Criminal Procedure, Vol. II, Section 217. If the contrary view were maintained, we might as well hold that because sanction has been accorded under Section 196 of the Criminal Procedure Code, the Magistrate need not exercise his judgment at all,--a position clearly not intended by the Legislature. In my opinion, therefore, the complaint in this case was not a complaint of facts as contemplated by Section 190 of the Criminal Procedure Code. The question thus arises, how far, if at all, the validity of the proceedings has been affected by this defective nature of the complaint. On behalf of the appellants, it has been contended that there was no complaint in the eye of the law and consequently the proceedings were without jurisdiction. In support of this proposition, reference has been made to the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case before us, however, the sufficiency or legality of the complaint has not been brought up to this Court for consideration before the completion of the trial in the subordinate Courts. On the basis of the complaint, the inquiry proceeded before the Magistrate, and after commitment by him, the Sessions Judge has elaborately tried the case with the aid of assessors. Under these circumstances, it is plainly no longer competent to the accused to invite this Court to set aside the convictions on the ground that the complaint was materially defective. A case of this description is, I think, completely covered by Clause (a) of Section 537 of the Criminal Procedure Code. There is no foundation for any possible suggestion that that essentially defective nature of the complaint has in fact occasioned a failure of justice. The essence of the argument for the appellants is that the complaint must embody a statement of facts, so as to enable the Magistrate to form an opinion whether he should take action under Section 203 or Section 204 of the Code. But that stage has been long since passed, and the Court is now called upon to decide, not whether the complaint should have been thrown out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in Barindra Kumar v. Emperor 37 C. 467 : 7 Ind. Cas. 359 : 14 C.W.N. 1114 : 11 Cr.L.J. 453 is opposed to the contention of the appellants. In the second place, it is manifest that the same person may be guilty of offences under Section 121 A. as well as Section 123 of the Indian Penal Code; for instance, a person may bring himself within the latter section by concealment of the existence of a design to wage war against the King, and may immediately afterwards join in the 'conspiracy to wage war against the King and thereby bring himself within the scope of Section 121A. It is reasonably plain, therefore, that even if Sections 231 to 233 of the Criminal Procedure Code are of no assistance to the prosecution, because, as explained in Budhai Sheik v. Emperor 33 C. 292 : 10 C.W.N. 32 : 3 Cr.L.J. 126 they are limited to the case of a single accused person while Section 239 applies to the joint trial of more than one person, yet the interpretation we put upon Section 121A and Section 123 of the Indian Penal Code shows that the trial is not open to objection on the ground of misjoinder of charges. See Janhi v. Emperor 11 C.L.J. 182 : 11 Cr.L.J. 244 : 5 Ind. Cas. 769 which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e language of Mr. Justice Fletcher in Peary Mohan Das v. Weston 16 C.W.N. 145 at p. 152 : 13 Cr.L.J. 65 : 13 Ind. Cas. 721 speeches were delivered against the Partition, the swadeshi movement came into being, akhras or gymnasiums and Samities or societies were formed or extended, attempts were made to enforce the swadeshi movement by criminal intimidation, force and violence, volunteers originally enrolled for the purpose of keeping order at political meetings were subsequently employed for picketing the markets in order to enforce boycott, and finally literature including periodicals and books, which preached revolutionary doctrines and destruction of Europeans-, came into existence. On behalf of the Crown; it is asserted in substance that the Dacca Anushilan Samity was formed for purposes of revolution, though its ostensible object was to encourage physical exercise. The case for the defence, on the other hand, is that the ostensible was the real object of the Samity and that its founder and promoters entertained no secret or sinister purpose. In fact, it is asserted on behalf of the defence that the effect of the agitation which followed the Partition of Bengal was not merely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o consider whether the organization was started on the 6th March 1907 as the defence assert or more than a year earlier as the prosecution alleges. It is plain beyond controversy that at or about the time to which we are referring, considerable ill-feeling existed between Hindus and Mahomedans, and the evidence further points to the conclusion that in Jamalpur, and possibly in other places also, infuriated Mahomedan mobs had, to some extent, got beyond the effective control of the authorities entrusted with the duty of keeping the peace. There was thus a widespread panic among Hindus that they might be insulted or outraged by Mahomedans with impunity, and also a belief that the authorities were either unable or unwilling to afford them adequate protection. It is not necessary for the purposes of the present case to investigate whether and how far this panic was well founded; nor is it pertinent to the present inquiry to determine who were to blame for the highly strained feeling between the Hindus and the Mahomedans. I am concerned only with the fact, firmly established by the evidence, that there was widespread panic amongst the Hindus and that means of self-protection were deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es; (7) Unity leaflet and Independence leaflet. 264. As regards the vows, it is necessary to state at the outset that it was an essential pre-requisite for the admission of an adult member into the society that he should take a vow. The vows were four in number, and were of gradually increasing degree of solemnity. They were known as the Adya pratijna or initial vow; the Antya pratijna, or final vow; the Pratham bishes or the first special vow and the Dvitia bishes or the second special vow. An elaborate argument has been addressed to the Court by the learned Counsel for the appellants as to the order in which the vows were administered. But, in my opinion, the contention, ingeniously put forward, that, the first special vow was administered first, completely failed. The internal evidence is conclusive that the vows were administered in the order I have named them. The initial and the final vows were meant for all ordinary members, the initial to be taken at the time of admission into the Samity, and the final, after the novice had reached a certain stage of culture or attainment. The two special vows were intended only for the members of the inner circle, and amongst them also th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provement of the race, to be attained by stick play and dagger play, and that this object is fairly obvious from the vows themselves. I am not at all impressed with the suggested explanation. It may be conceded that the members of the Samity might well be anxious to keep secret from their Mahomedan opponents the details of the elaborate system of lathi play invented or perfected by their leader. But this does not carry us appreciably nearer to what is described as the internal secrets or the internal matters, which were not only not to be divulged but not even discussed. The other provisions, to preserve the secrecy of Mantras, to guard the society against conspirators, and finally to mete out just punishments to all antagonists, do seem remarkable in what, it is contended, was perfectly innocuous society with legitimate aims and aspirations. Stress need not be laid upon the provision which implies complete severance from home and family and unquestioning submission to a leader. But it is plain that vows of this special and remarkable character do not by any means seem needful for, even if they be assumed to be consistent with the purposes of a society of the harmless character sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely to improve physical culture and to afford self protection against the Mahomedans, it is difficult to appreciate why a central association with its branches spread over the whole province was essential. It was a fundamental part of the scheme that no associations were to be tolerated even for the purposes of promotion of physical development, unless they consented to be affiliated to the parent association and adopted its vows, rules and methods of work. In the second place, strict measures were to be adopted to prevent any entrance into the society by persons who had not taken the vows and yet by deception attempted to learn lathi play. Such a parson, when detected, was to be pressed to take the vows, and if he refused, arrangements were to be made fir the complete destruction of his knowledge. This provision has an undoubtedly sinister look, and I am not much impressed with the interpretation suggested by the learned Counsel for the appellants. In the third place, there is a lengthy discussion as to why Mussulmans should not be admitted as members of the society. As the avowed object of the society is assumed by the accused to have been self-protection of the Hindus against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so made for the punishment of delinquent members; but, in no circumstance, were they to be allowed to leave the Samity. Effective inquiries were to be made us to the existence of conspiracies against the Samity, and steps were to be taken for the remedy thereof. There was finally a noticeable rule that those, who were under 12 years of age and were incapable of understanding the spirit of the vows, were to be designated as the external limbs of the Samity; such boys were only to have the vows read out to them and were to be made to observe them. They were to be taught only certain defined exercises, while those who had taken the initial vow were to have no other lessons imparted to them than specified courses in play with big and small sticks and also daggers. These rules emphasise the importance of the vows and also indicate the complete subordination of branch associations to the leader of the Central Samity. The rules also indicate that although members were to be punished for their delinquencies, every effort was to be made to retain them within the folds of the society; expulsion of persons already initiated into the secrets of the society, was obviously inconsistent with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral idea is that there is no possibility of unity unless subordination to one leader is accepted. The object of Pulin Behary Das plainly was to be this leader, a leader into whose hands, as he puts it, individual freedom was to be totally surrendered in order that national and social freedom might be achieved. The full significance of this may be appreciated when taken in con-j unction with the passage in the Paridarsak where reference is mad a to the career of Napoleon. 271. These then are the official documents of the Samity, and their significance is by no means difficult to ascertain. The Samity had undoubtedly for one of its objects the improvement of physical culture of the Bengali race. But there was a secret object which was not only not to be disclosed but was not even to be discussed amongst the members themselves. Pulin Behary Das was to be the leader of the Samity, to whose orders unquestioning obedience was to be rendered by all the members. The members themselves were to be admitted to the fraternity only after they had taken the most solemn vows in the presence of an image of the Goddess Kali. Secrecy was to be maintained by every possible device; if any outsider, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sand volumes. Many of the books were such as are usually read by boys and young men in schools and colleges; but there were some books characterized by the prosecution as objection able books, indicative of the mental tendency and aspiration of the members of Samity. I feel bound to record my opinion that a great deal of misapplied ingenuity was vested on behalf of the Crown in a fruitless effort to condemn as objectionable, literary, historical and religious books to which no reasonable exception could be taken by any unbiassed person. An effort was also made to invite the Court to form an opinion as to the true tendency of books from translations of isolated passages. If a book, however, be tested in this fashion, it is obvious that an erroneous estimate may easily be formed of the true import and value of some of the noblest writings in any language. It is a truism that books mast be judged as a whole. But, apart from this, the mere circumstance that a book of an objectionable character is present in the library of an individual or of an association, does not necessarily justify the inference that the teachings of the book are approved and adopted by persons who have access to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disaffection and conspiracy, that is, as Harington, J., puts it in Barindra Kumar v. Emperor 37 C. 467 : 7 Ind. Cas. 359 : 14 C.W.N. 1114 : 11 Cr.L.J. 453 between those whose minds have been poisoned by pernicious literature and imbued with a hatred towards the British, and those who have gone a step farther and have become parties to an agreement to destroy that Government. It is thus more important to consider what the members of the Samity wrote than what they read, and still more vital to find out what they did than what they read and wrote. And this brings one to the consideration of the overt acts imputed by the prosecution to the Samity and relied upon as concrete manifestations of the object of the society. 273. The overt acts upon which reliance is placed may be tabulated as follows in order of date. 1. Barrah dacoity (2nd June 1908). 2. Satirpara boat theft case (14th August 1908). 3. Naria dacoity (30th October 1903). 4. Murder of Sukumar (13th November 1903). 5. Murder of Priya Mohan (2nd June 1909). 6. Rajendrapur train dacoity (11th October 1909). 7. The Agartala incident (24th November 1909), 8. Find of arms at Adabari (12th December 1909). 9. Find of arras at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accomplice witnesses, Hemendra and Nagendra. It is clear from the testimony of Mr. Dawson that these accomplice informers did not at the time mention to him the name of Pulin and did not suggest that the boat had been stolen for the purposes of a projected dacoity; we have, farther, the important fact that the letters now produced to connect Pulin with the incident were not produced in the boat theft case, and, for some unexplained reason, did not see the light till quite recently, on the 24th January 1910. There are also material variations between the depositions of Hemendra and Nagendra in the Court of first instance and in the Court of Session, and the comment of the defence is fully justified that they have improved upon their testimony and supplied the missing links. They have further completely failed to explain the unaccountable delay which took place at Naraingunge in arresting the boat and its occupants. The long search throughout the day to discover the boat is wholly inconsistent with the story narrated by Hemendra and Nagendra that they had accompanied Jadu and Binode in the boat and on arrival at Naraingunge had gone, in the morning, to the Sub-Divisional Officer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or some of its members were connected with the dacoity, and that the defence have failed to rebut it. I may add that I do not feel pressed by the argument that as proceedings taken against some of the members of the Samity, such as Santipada and Asutosh, for participation in the dacoity were dropped, and as the evidence is not sufficient to bring home the offence against any individual member, a charge of conspiracy cannot be maintained. The cases relied upon in support of this proposition, Emperor v. Noni Gopal 15 C.W.N. 593 : 38 C. 559 : 12 Cr.L.J. 286 : 10 Ind. Caa. 582; Reg. v. Rowlands (1851) 17 Q.B. 671 : 5 Cox. C.C. 436 : 2 D.C.C. 364 : 21 L.J.M.C. 81 : 16 Jar. 268 : 85 R.R. 615 and Rex v. Boulton (1871) 12 Cox C.C. 87 do not lay down any inflexible rule of law, and the case before us illustrates how convincing evidence may be available to show that a set of parsons had conspired to commit a crime, though it may be impossible to identify any individual of that set as the person who carried out the object of the conspiracy and actually committed the crime, This only illustrates the truth of the elementary doctrine that the criminality of the conspiracy is distinct from and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Priya Mohan, which was undoubtedly of the most brutal and determined character, we have no evidence to connect it with the society. The case for the prosecution is that the members were incensed with the brother of Priya Mohan, one Gobesh, who was a member of the Anushilan Samity and had made a compromising statement before the Magistrate of Faridpore. They, therefore, determined to remove Gobesh from the way of further complication; but not aware that he was absent from home, they by mistake murdered his brother Priya Mohan. The s accused Surendra Mohan Ghose was tried for this murder and was acquitted. It is now sought to be made out that the crime was committed by the Samity in furtherance of its aims and objects. Of this there is no evidence. In so far as the accused Surendra Mohan Ghose is concerned, it cannot be disputed that the judgment of not guilty fully establishes his innocence: Rex. v. Plummer (1902) 2 K.B. 339 : 71 L.J.K.B. 805 : 86 L.T. 836 : 51 W.R. 137 : 66 J.P. 647 : 20 Cox C.C. 243 : 18 T.L.R. 659 and Emperor v. Noni Gopal 15 C.W.N. 593 : 38 C. 559 : 12 Cr.L.J. 286 : 10 Ind. Caa. 582. In so far as the other accused are concerned, I am unable to hold that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 C. 559 : 12 Cr.L.J. 286 : 10 Ind. Caa. 582 that the incident cannot be used against him, and there is no evidence to connect the other accused of the Samity as a whole therewith. My conclusion is that the arms alleged to have been discovered at Adabari are not shown to have belonged to or to have been in the possession of the Samity or of any of its members. 283. The next incident which requires examination is the find of arms at the shop of a grocer by name Mohim on the 80th July 1910. It will be observed that this incident took place after the commencement of the present prosecution, and it has been contended with reference to this find, as also the next following one, that they were not admissible in evidence, on the authority of the ruling in Rex v. Hardy (1794) 24 Howell St. Tr. 718. This contention is, in my opinion, too broadly formulated and is really not supported by the case mentioned. When persons have been taken into custody and are in a condition which makes it impossible for them to act in aid or furtherance of the conspiracy, that is, when so far as they are concerned the conspiracy has come to an end, it may be contended that acts of persons who were members of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution must further prove if the membership of Lalit is established, that he was in possession of the bombs at the time when the present appellants were still members of the conspiracy, that is, before they were taken into custody. The evidence, however, does not establish either of these facts. The only connecting link between the accuse in the bomb case and the Samity is a letter written by one L. Chowdhury to Pulin Behary Das on the 9th September 1908. This letter has not been proved to have been written by the Lalit Chowdhury who was convicted in the bomb case. The identity has not been established. In fact, the evidence on the present record upon this part of the case is very meagre, and evidence which was produced at the trial of Lalit Chowdhury under the Explosives Act has not been adduced here. But even if the identity had been proved, matters would not have been advanced very much further. The letter shows, on the face of it, that the writer was not known to Pulin. There is nothing to show that the letter was received and acted upon. Rex v. Boulton (1871) 12 Cox C.C. 87. Indeed, there is nothing to show that Pulin ever sent a reply to this letter. Under these circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 428 which was based upon the comprehensive statement of the rule in Taylor on Evidence, Section 971. The distinction is clearly brought forward by Wigmore in his work on Evidence, Section 2060; "When the witness has made himself an agent for the prosecution before associating with the wrong-doers or before the actual preparation of the offence, he is not an accomplice; but he may be, if he extends o aid to the prosecution until after the offence is committed. A mere detective or decoy is not, therefore, an accomplice nor an original confederate who betrays before the crime was committed; yet an accessory after the fact, would be if he had before betrayal rendered himself liable as such." This distinction is of fundamental importance in the case of conspiracies, because, as Brett, J.A., observed in Rex v. Aspinal (1876) 2 Q.B.D. 48 at p. 58 : 46 L.J.M.C. 145 : 36 L.T. 297 : 25 W.R. 283 : 13 Cox C.C. 563 "the crime of conspiracy is completely committed, if it is committed at all, the moment two or more have agreed that they will do, at once or at some future time, certain things; it is not necessary in order to complete the offence that any one thing should be done bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ymnastics, drill and other forms of physical exercise, there was a systematic discussion of the objects of the society as set forth in the Paridarsak. All these plainly indicate to my mind that the Samity was a revolutionary society. I must that I was not much impressed with the effort made at the Bar on the side of the appellants to show that the main features of the Samity were borrowed from the work on Anushilan or culture by Bankim Chandra Chatterjee, nor was I much impressed by the similar effort made on behalf of the Crown to show that the promoters of the society had imitated with profit the plan of work outlined in the Mukti Kon Pathe. As I have already stated, it is of little importance to trace the source from which inspiration was drawn: the vital point is to determine, what the members of the Samity themselves wrote and how they acted; judged from their methods of work and from the nature of their proved acts, there, is no room for doubt that their ultimate object was revolutionary. It must be remembered that direct proof can scarcely be afforded of a conspiracy. No doubt, if in a prosecution for conspiracy, the Crown is able to produce a witness, not a co-conspirator, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary purpose. This attempt has, in my opinion, failed to a considerable extent. The mere fact that the members of an association have adopted the same system of lathi play as was organised by Pulin Behary Das, obviously does not prove that the association was a branch of the Dacca Anushilan Samity. Lathi play, as is abundantly clear from the evidence, was in vogue in various parts of Bengal, and it became popular by reason of the feeling of panic which pervaded large sections of the Hindu community in Eastern Bengal shortly after the Partition. In order to connect any Samity with the Dacca Institution, it has to be established that there was an agreement, which is the gist of conspiracy, between the members of the parent society and the alleged branch. Such inference may be justified by the surrounding circumstances, for instance, upon proof that the branch Samity rendered pecuniary help to the central association and accepted a position of absolute subordination thereto as contemplated by the rules. No such evidence has been adduced in the present case. The matter, in fact, is not of much practical importance, except in the case of one association, viz., the Jnan Bikashini Sava of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been established; much less has the suggested identity been proved. The entries in one of the books containing the rules of mock fight are consistent rather with the theory that they were distinct, but had some members in common, and it is very remarkable that among the numerous documents discovered, there is not one which indicates that the members of the Madhyapara Samity had to take vows. My conclusion, therefore, is that the Madhyapara Samity had not been proved to be a branch of the Dacca Anushilan Samity. The prosecution has failed to prove that, in the language of Lord Campbell in Rex v. Brown (1858) 7 Cox C.C. 442 the one Samity had with the other "a joint design, a joint combination." See also Rex v. Barry (1865) 4 F. & W. 389 at p. 399; Mulcahy v. Rex (1868) L.R. 3 H.L. 306 at p. 316; Rex v. Ranks (1873) 12 Cox C.C. 393 at p. 399. I have arrived at a similar conclusion as regards the Brati Samity at Naraingunge. In fact, the letter from the "Captain" to the accused Aswini, who was the Secretary to the Brati Samity, is consistent only with the view that the one Samity was not a branch of the other, but that the two had members in common. The same inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) 4 East 164 at p. 169 : 7 R.R. 551: "conspiracy is a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them and which hardly ever are confined to one place." It is from this point of view that letters passing between the accused may be offered to prove or disprove the conspiracy. Rex v. Banks (1873) 12 Cox C.C. 393 at p. 399 and Rex v. Whitehead (1824) 1 C. & P. 6(sic)7. In this connection, I must advert for a moment to the contention of the learned Counsel for the appellants that before a document in the possession of any of the accused persons can be used in evidence against the others, it must be completely established by independent evidence that they were conspirators. This argument is too broadly formulated and is negatived by Section 10 of the Indian Evidence Act, which provides that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to an individual accused that he was in privity with the combination and its object and had adopted the acts already performed, he as a conspirator becomes bound by the antecedent and the consequent acts of his co-conspirators Rex v. Read (1852) 6 Cox C.C. 134; Rex v. Stenson (1871) 12 Cox C.C. 111 : 25 L.T. 666. To sum up, it cannot", be, maintained that by this principle conspirators are subjected to punishment for offences committed by their fellows ; since the crime lies in the concerted intention to be gathered from the acts done, such acts, preceding the entry of a particular person into the combination, are evidence to show the nature of the concert to which he becomes a party, and the subsequent acts of the other members indicate further the character of the common design in which all are presumed to be equally concerned. Wright on Conspiracies, page 71; O'Keefe v. Walsh (1903) 2 Ir. R. 681. In the light of the principles explained, I shall now examine the evidence against each individual accused. 291. The appellants fall into two well marked classes, in the first of which are comprised those who deny all connection with the Dacca Anushilan Samity, while in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble the residence of the accused Bhupati at the Samity premises. His name further appears in more than one place in the Samity papers. That he was a young man full of extreme revolutionary ideas is clear from his compositions discovered at Madhyapara, I think it is reasonably plain that Bhupati was a member of the conspiracy. 294. The case of Nripendra Mohan Sen Gupta stands upon a similar footing. He is the writer of the letter to which reference has just been made, and he was one of the accused in the Wari Affray case. The papers found at Madhyapara also indicate his tendencies and aspirations. I think he has been proved to be a member of the conspiracy. 295. In so far as Charu Chandra Sen is concerned, his case stands on a somewhat different footing. There is no oral evidence to show that the accused Charu was at Dacca. On the other hand, there is sufficient indication that another man of the same name, son of one Sarat Chandra Sen, was a member of the Samity. This accords with the statement of Pulin that a Charu of Outsahi was a member of the Samity. The accused contends that exhibits and incidents, which refer to Charu of Outsahi, have been sought to be used against him. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he was entrusted with important work in the Samity. The theory, however, has failed. The position, therefore, is that although his name, either as Abani or as Ajit, finds a place in Samity papers, there is no evidence to show what rank he had attained therein. No revolutionary literature in his handwriting has been found. On the other hand, his comparative youth--he is stated to have been 12 or 13 years old in 1908--points to the conclusion that lie could hardly have been entrusted with the secrets of the society. There is also nothing to show that he had taken the final vow, even if it be assumed that the initial vow had been administered to him. Under all these circumstances, I am of opinion that he has not been proved to be a member of the conspiracy and his conviction cannot be sustained. 296. In so far as the accused Akshoy Kumar Dutta is concerned, the evidence against him is mainly oral. He was an expert wrestler and took prominent part in December 1907 in the Gandaria mock fight. He was of a religious turn of mind and appears to have presented to the library of the Samity a number of philosophical and religious books, on some of which his name has been found, and from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possibly have been a branch of the Dacca Samity. One of the letters on the record written by the captain of the Anushilan Samity to the accused Aswini is conclusive upon this question. It shows that the two Samities were distinct and that the captain of the Anushilan Samity had no authority to issue orders to the members of the Brati Samity. We must take it, therefore, that the connecting link has not been furnished. But the question remains, whether the direct connection of this accused with the Dacca Samity has not been proved. The strongest evidence against him is a manuscript book with his name on it, which contains the rules and vows of the Anushilan Samity at Naraingunge, in terms similar to those of the Dacca Samity. It is to be observed, however, that this is dated the 6th November 1906 and recites that lathi play had commenced on the 9th September previous. A possible explanation in favour of the defence is that this note-book was prepared at a time when the Anushilan Samity had just been started at Naraingunge, and that subsequently Aswini started the Brati Samity ; this is in fact what he suggests when he maintains that he severd his connection with the Samity of Pulin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Samity. In fact, the several books on lathi play according to the system of Pulin togethei with the initial and final vows do tend to indicate that Bankim was thoroughly biassed and personally interested therein. On the whole, therefore, the con-elusion appears to me to be irresistible that this accused was aware of the secret object of the Dacca Anushilan Samity and was a member of the conspiracy. 299. In so far as the two accused Benode Behari Chakrabarti and Jadu Nath Das are concerned, they have been sought to be connected with the Samity by means of the Satirpara boat theft incident; in view of my conclusion as to the true nature of that incident, it is clear that the conviction of these two accused cannot be supported. There is no reliable evidence to establish their membership of the Dacca Anushilan Samity, and if the theft of the boat for which they were convicted did not take place at the instance of Pulin Behari Das for the purpose of the alleged projected dacoity in pursuance of the objects of the conspiracy, their "guilt, so far as the present charge is concerned, cannot be deemed to have been established. 300. In so far as Dinesh Chandra Guha is concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uard an undisclosed secret. But apart from the Sonamoye Samity, the question arises, whether Gurudayal was not directly connected with Pulin. According to the prosecution, the link is furnished by a letter alleged to have been written by Guru-dayal to Pulin on the 11th October 1908, which, if genuine, is conclusive. The letter in fact shows that Gurudayal was acquainted with the details of the constitution of the society, sent his brother Nrisingha for enrolment as a member of the Circle, and asked for copies of the preliminary and final vows and Duties of Secretaries. He also offered to take the monthly subscription with him on the occasion of his next visit. The hand-writing expert proves the signature on this letter to be by the same Gurudayal as executed a bail bond, on the 7th November 1908, for the release of his brother Nrisingha, who had been arrested at the Samity on the 4th November 1908 in connection with the kidnapping of Ananta Mohan Chatterjee. It has been argued that this bail bond was not duly proved and could not, therefore, be accepted as the standard under Section 73 of the Indian Evidence Act; see Barindra Kumar Ghose v. Emperor 37 C. 467 : 7 Ind. Cas. 359 : 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nection with the Medical Hall stabbing incident which took place on the 4th September 1907. Jogesh absconded and did not surrender till June 1908. He was subsequently discharged. If he had been seen in the interval by a Police officer, as the oral evidence would seem to indicate, he would have been undoubtedly arrested in execution of the warrant issued against him. The oral evidence of the accomplice Hemendra and the spy Upendra is clearly untrustworthy. The name of the accused does not appear in any Police report; in fact,' in one document where the Jindabahar Samity, is named, three other names are mentioned, but JogBsh does not appear either as a captain or as an expert lathi player. His name does not appear in any Samity paper; his house was searched and no paper or article of art incriminating character was found. He was arrested in connection with, the Rajnagore dacoity case but was ultimately discharged on the 17th November 1909. The defence suggests that he has been brought into the present case because the Police suspected, notwithstanding his aquittal in the Medical Hall stabbing case and in the Rajnagore dacoity' case, that he was connected with those incidents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h members of the Samity at Dacca is untrustworthy. It is clear that there was another person of the same name who played lathi at Nayabazar and was the son of one Rajani, while this accused is the son of Basantalal Ray of Olepur in Faridpur and is clearly not the same man as is mentioned in the Police report of Inspector Sarat Chandra Ghose. It is not necessary for me to examine whether the witnesses have, deliberately or by mistake, substituted the present accused in place of the other Nisikant. It is sufficient to hold that he has not been connected with the conspiracy either directly or through the Habigunge Samity. His conviction, therefore, cannot be sustained. 305. The accused Radhika Bhushan Ray was involved in the Wari Affray case which took place on the 17th November 1907. Prima facie, therefore, he was residing at the Samity premises at that time. The question is, what was his position in the Samity. There is evidence to show that he went to Noakhali on behalf of the Samity as » Paridarsak. The attempt made to shake the testimony of Kali Oharan Das, the contractor employed by Radhika at Noakhali to erect a hut for lathi play, has not been successful. This evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not very trustworthy and the allegations of the witnesses, who had acted as accomplices and subsequently as spies, are not corroborated by independent evidence. The name Sachi occurs in two of the Samity papers. But this is not conclusive, because the evidence of Padmini Bhushan Rudra shows that there was in the Samity another person of the name of Sachindra Chandra Chanda On the other hand, in the register of names of members, we find, it noted against Sachindra Mohan, Banerjee: present from to-day; not regular; he comes twice or four times a month." He is not sbown to have taken any vows nor is he connected with any revolutionary literature. Even if he is assumed to be a member, he is not shown to have been initiated into the secrets of the society. His conviction, therefore, as a member of the conspiracy cannot be sustained. 309. With regard to the accused Nitai Chand Saha Banikya, I have already held that the find of arms alleged to have been deposited in the shop of the grocer Mohim cannot be treated as evidence of the activities of the Samity. But the question remains, whether he has been connected with the conspiracy by any direct evidence. The oral evidence is of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is own statement was a member of the Samity, he is not proved to have been a member of the conspiracy and his conviction cannot be supported. 310. I shall now proceed to deal with the accused of the second class who were all admittedly members of the Dacca Samity. 311. The accused Gopal Chandra Ghose was apparently only 12 years old when he joined the Samity, and at the time of his arrest in August 1910 was a student in a Calcutta College. He was a member apparently from September 1908 till the suppression of the Samity two months later. In view of his age and the short period' of his connection with the Samity it is not likely that he could have been entrusted with revolutionary secrets. This is consistent with the statement of Pulin that the accused had taken one vow only. His name is not connected with any revolutionary literature found in'the premises of the society. Under these circumstances, there is not, in my opinion, sufficient evidence to connect him with the conspiracy and his conviction cannot be supported. 312. The accused Radhika Mohan Banerjee was also known as Karunakant. He is not shown to have been connected with the society before the 29th September 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is fairly clear that this has no sinister significance. It is more than probable that the writing in pencil was on the yellow sheet before it was used as a cover for the note book; at any rate, the writing has not been identified with that of this or any other accused. Besides, there is no evidence that the chemicals when combined in the proportions stated would make an explosive. The only other incriminating object found in his possession at the search of the 3rd August 1910 is a copy of the newspapers Nabasakti, said to contain a seditious article on a revolutionary leader, an editor of the Yugantar, who had been convicted and sentenced to imprisonment. On examination, however, it transpired that the issue of the paper was dated the 27th July 1907 and had evidently been placed inside a steel trunk as a wrapper to protect the clothes from rust. Finally, some evidence has been adduced to show that the accused had been seen at Comilla as a Paridarsak on behalf of the Samity. This testimony, however, is not quite reliable as the witness who is said to have watched him could not-identify him in Court. In my opinion, the evidence is not sufficient to prove that this accused particip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y premises. But it is urged that he left after the Wari Affray case. It is clear, however, that though another house was taken and the ladies of the family were removed, he continued to occupy the position of a member of the Samity; in fact, it is not disputed that he was a member and had taken two vows. Even in September and October 1908, we find that he took out books from the Samity library as a member would do. "We have further a parwana by Pulin authorising Promode to supervise the work of the branch Samities as Paridarsah. No doubt, this was discovered on the 3rd August 1910 in a box of Pulin, and on this circumstance has been based the argument that if it had been acted upon, it ought to have been in the possession of Promode. The criticism would have been weighty but for the fact that Pulin and Promode were brothers and lived, if not in the same premises, at least in adjoining houses. We have further the evidence of Annadakanta Chakrabarti that in July 1907 Promode was seen at Lakshipore and, when asked, stated that he had come from Dacca to teach the school boys lathi play. Finally, it has been suggested that Promode has been prosecuted because he is the brother of Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Behari Das and Kshirode Chandra Guha. 324. The question next arises as to the sentences appropriate for the accused whose convictions are affirmed. Here the elements to be taken into consideration are not only the gravity of the offence but also the extent to which the conspiracy had been carried on, the nature of the only overt work associated with the society, the time that has elapsed since the society was suppressed and the length of the period during which the accused have been in custody. A distinction must also be made between the leaders of the movement, three of them men of mature years and of some education and experience, and the others, less important members of the conspiracy, most of them young men in the prime of life, misguided into dangerous tracks by their elders who might be expected to have known better. In view of all these circumstances, I hold that the justice of the case would be met by the following sentences. 325. Pulin Behari Das : Transportation for seven years. Asutosh Das Gupta: Transportation for six years. Jyotirmay Ray: Transportation for six years. Garudayal Das: Rigorous imprisonment for five years. Bankim Chandra Ray: Rigorous imprisonment for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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