DHARANI KANTA CHAKRABARTY Vs. EMPEROR

JUDGEMENT

(1.) In these three appeals, seven accused persons are before us who were tried by a Special Magistrate under Ordinance 11 of 1931 in the District of Mymensingh. They were charged with various offences under Section 411, I.P.C., under Secs.19(f) and 20, Arms Act, and under Section 5, Explosive Substances Act, and there was also a charge of conspiracy against them all having reference to the offences indicated by these sections. The appellant Dharani Kanta Chakravarty has been sentenced to 7 years rigorous imprisonment, appellant Sailaja Kanjan Bhattacharjya to 4 years, appellant Nikhil Bhusan Chaudhuri to 4 years, appellant Sudhir Chandra Bhattacharjya to 6 years, appellant Jagat Bandhu Basu to 6 years, appellant Profulla Kumar Majumdar to 7 years and the appellant Manindra Chandra Debnath to 5 years rigorous imprisonment.

(2.) The case for the prosecution is that on the night of 22nd-23 September 1931 the police, upon information received, carried out a search of the premises occupied by Dharani, that they went to his place with a considerable force, that they surrounded the house, different officers being posted at different places, and that all the accused persona together with Dharani's mother and a younger woman, a widowed relation of Dharani, were found in the main hut which appears to be a commodious hut with a verandah and so forth or a corrugated iron house. When they got to the house, they took up their position and waited for about half an hour before anything happened. In the meantime, efforts were made to obtain search witnesses locally; but before these witnesses were procured, Dharani came out of the hut suddenly with a revolver covered over by the end of his dhoti. He attempted to move to the west and finally threw the revolver into a tank after proceeding some little distance. He was seen doing this and was apprehended and the revolver was immediately recovered. It is also said that while this was going on certain of the persons inside the hut were seen to throw away various articles towards the north-east where there is a varandah at least partially closed up with wooden planks. When the search witnesses arrived and the hut was entered into, all the accused persons together with the two women are said to have been found in that hut. In the presence of the search witnesses, the hut was searched and the place where the articles were thrown away was searched and in the result there were recovered in addition to the revolver already mentioned a postcard with a circular portion cut out in the middle, a white paper containing some chemical formulae for the preparation of bombs and two metallic bombshells formed out of ordinary brass pots with the necks cut clean off. It appears that the revolver was one which was stolen from medical officer in December of the previous year 1930.

(3.) The witnesses who speak to the search are the following police men: first of all, the Sub- Inspector Abu Mahammad who is now the police officer in charge of the thana in question at Nandail, the Sub-Inspector Basanta Kumar Mukherji P.W. 7, Dafadar Debendra Chandra De, Assistant Sub-Inspector, Chintaharan Mukhoti and two constables of the names of Ashraf Ali and Raghunandan Singh. In these circumstances the Special Magistrate convicted at the accused on all the charges. He held that the revolver was in the possession of them all; he held that all of them knew that the revolver had been stolen; he held that they were all engaged in possessing and preparing dangerous explosive substances contrary to the provisions of Section 5, Explosive Substances Act, and they all entered into a conspiracy to offend against Section 411, I.P. C, Arms Act, and the Explosive Substances Act. At the hearing of these appeals, Mr. Talukdar, who appears for accused 1, 2 and 7, that is, the appellants in Appeal No. 252 supported by his learned friend who appears for accused 3, that is the appellant in Appeal No. 253, has taken certain objections: first of all, he says that the Special Magistrate had no jurisdiction because by virtue of Section 34 of the Ordinance these accused were not liable to be tried by a Special Magistrate. Section 34 of Ordinance No. 11 of 1931 is to the effect that no direction shall be made for the trial of any person by a Special Magistrate for an offence for which he was being tried at the promulgation of this Ordinance before any Court. We have examined the order sheet of the Sub-Divisional Magistrate to see whether or not the accused on 30 November or on 1 December 1931 were being tried within the meaning of that section.