EMPEROR Vs. PARIMAL CHATTERJEE

JUDGEMENT

(1.) In this case the learned Additional Sessions Judge of Dacca, disagreeing with the verdict of the jury who found the accused not guilty of the charges framed against them under Secs.117 and 302, I. P. C., has made a reference to this Court under the provisions of Section 307, Criminal P. C.

(2.) The facts are as follows : On the night of 28th/29 July 1931, after information had been received from D. I. B., Dacca, that seditious leaflets were likely to be posted on several places that night, police patrols were instructed to be on the look out for anyone doing this. After patrolling for some time, about 2 a.m., two constables in plain clothes were proceeding northwards along a western road when they saw ahead of them three persons doing something outside the gate of the public library. The three then went, northwards; and the constables, on reaching the gate of the library, saw there a tacently posted leaflet printed in English and headed "Blood calls for Blood." At a short distance northwards from the library, there is a level-crossing and to the south thereof there is a road running eastwards. At the level-crossing, two groups of patrolling police and two members of a defence party had met earlier and they were sitting together. They did not notice any thing wrong with the said three persons who passed quite close to them; but when the two constables, who had been following them, came up and told the police party what they had found, the whole police party joined in-following them. The three persons went to the railway station where they were arrested in a third class waiting shed. The names of the three persons are Parimal Chatterjee, Santimoy Ganguly and Omiya Bhusan Sen. The ages of the first two are 18 years and the last was aged 15 years. On Parimal copies of the leaflet and other papers were found, and on Santimoy an electric torch and a copy of the leaflet. When Omiya was arrested he threw into the adjoining river a packet which was recovered by a boatman and found to contain flour paste.

(3.) The three youths were then taken to the thana and a first information report was lodged. At the trial, no evidence was adduced by the defence nor did the accused make any statement in Court to explain why they had been at the railway station at 3 a.m. The posting of the leaflets on the gate in question had been done between 1 and 2 a.m. in the morning, and the leaflets were removed by the police shortly thereafter or at any rate early in the small hours of the morning; the public had had no occasion or opportunity to see the leaflets and to read the same and this is clear from the evidence of the witnesses who were called by the prosecution. It was argued before the learned Sessions Judge that inasmuch as the public had not seen or read the leaflets in question, there had not been any abetment or instigation or incitement within the meaning of Section 117, I. P. C., and that in the events which had happened, the prosecution of the three youths in question was not maintainable. The learned Sessions Judge was of opinion that it was not necessary to show that any member of the public should have been incited. Section 117, I. P.C., runs as follows: Whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.