BHABANANDA BANERJEE Vs. EMPEROR

JUDGEMENT

(1.) The appellants are two First Bhabananda Banerjee whose home is in Kali Banerjee's Lane, Howrah, whose age is 24 years and who is employed as a typist in a mercantile firm. Secondly Monmohon Adhicary known as Naba who lives in the same lane, is aged about 20 years and has had no occupation since leaving school. They are charged in respect of an occurrence which took place at Sibpur at about 345 in the early morning of Friday, 16 May last, when a bomb was thrown at a first floor window of the house 51, Baje Sibpur Road, occupied by the Sub-Inspector of Sibpur Police Station, Fanindra Mohan Das Gupta. Naba has been found guilty of throwing the bomb and convicted upon charges laid under Secs.3 and 4(b), Explosive Substances Act (6 of 1908). Bhabananda has been found guilty of supplying arsenic and certain shots as materials for the making of a bomb and has been convicted under Section 6 of the same Act. Both have been convicted of conspiracy to commit an offence under Section 4(b), viz., to make and possess explosive substances with intent to endanger life or cause serious injury to property. Each has been sentenced to five years rigorous imprisonment.

(2.) The main evidence against each is his own confession and we have to scrutinise these carefully. Bhabananda was the first of the two to be arrested. He was arrested at his house on the morning of the 17th. Several other persons including Sachindra Nath Khan (P.W. 14) were arrested that morning. They were all brought before the Magistrate at 10 a.m., on the following morning (18th) and all except Sachindra were remanded to hajat, but Sachindra was remanded to police custody. So they were all in police custody on the 17th, and on that day Sachindra made some statements to the police. On the 17 the accused Naba was not found: he was arrested on the afternoon of the 18 at his house and was brought before the Magistrate next morning (19th) when he was remanded to hajat with a direction that he was to be segregated from the others. On the 18 he made a statement to the police and on the next day (19th) his confession was recorded by the Magistrate and a confession or statement was also recorded from Sachindra who was thereupon sent back to hajat. On the 21st Bhabananda who had been in jail since the 17 was directed to be made over to police custody. The Inspector says that he wanted him in order to investigate the truth of certain information as to his being seen to buy certain articles at a shop and that Bhabananda did take the Inspector to a shop, but at that shop no arsenic was found by the Inspector and it had no license for selling it. In the afternoon of the 22nd Bhabananda made his confessional statement before the Magistrate and was remanded to hajat. So that Naba when he made his judicial confession had been in police custody since the previous afternoon, and Bhabananda, since he had gone to jail on the 18th, had only been in police custody from the morning of the 21 at earliest. Sachindra's confession is not in evidence and need not be considered. On these materials it was contended before us that there was something highly suspicious about the circumstances under which these confessions were recorded. So suspicious, indeed, that the Magistrate who gave each of these accused very full and proper cautions to say nothing out of fear of the police and that they need not say anything unless they wanted to do so, had failed in his duty by not asking them more detailed questions first as to the time they wore in police custody and secondly whether the police had been threatening or ill-treating them. As the Magistrate had himself made all the orders as to the custody of Bhabananda and as Naba had only been arrested the previous day there is no substance in the first point. As neither made any complaints against the police and both professed most emphatically to be speaking of their own free will the second point is equally unreasonable.

(3.) There is nothing to suggest that either accused would be readily cajoled or terrorised by the police or that the police would be likely to try such methods. In retracting their confessions the accused stated to the tribunal that the police told them what to say. Bhabananda says he was threatened and tortured by blows and slaps and pulling his hair. Naba says he was told he would be let off if he told the Magistrate that he had thrown the bomb and would not be tortured by the police. Before us their learned advocate abandoned these allegations of ill treatment but contended that the statements of the accused did not relieve the Court from considering whether upon other grounds the confessions should be excluded under Section 26, Evidence Act. With this proposition I entirely agree [Emperor V/s. Panchkaurie Dutt ], but the fact that the accused, willing to make out a grievance against what was done, put forward false and not very probable allegations, cannot be ignored when we are considering whether they were properly treated in this matter. In the present case neither accused had been in illegal custody for a single moment and the period of their police custody had been exceedingly short.