TARAPADA MITRA Vs. EMPEROR

JUDGEMENT

(1.) We have before us the appeals of three parsons who were tried by the learned Chief Presidency Magistrate of Calcutta sitting as a, Special Magistrate under Ordinance 10 of 1932. There were four accused at the trial. Abani Ranjan Sarcar, Ashoka Kumar Chatterjee, Tarapada Mitra and Nirmal Kumar Guha and the case against them, in short, was this: On the 14 September last very early in the morning at about 4 o clock the accused Abani and Ashoka were seen coming out of Sitaram Ghose Street and entering Amherst Street. They were seen by two constables and Abani was seen carrying with him a brown paper parcel. We have been shown the parcel; it is not a very large parcel but one of a cylindrical shape. The constables challenged those two people and they said that they were on their way to Sealdah to catch a train to Khulna. The accused Abani was asked what was in the parcel and he said there were warm clothes. The constables felt the bundle and proceeded to open it and they found a quantity of revolutionary leaflets which have been described quite correctly by the Magistrate as leaflets inciting all and sundry to indiscriminate assassination. There was an envelope found on Abani by the constables which shows that Abani was a person who had been entrusted with the duty of disseminating these leaflets and that they were to be published broadcast on the night of the 16 all over Bengal. These people were taken to the thana and there another letter was found upon Abani but nothing incriminating was found upon Ashoke. The place where they were found was about the junction of Sitaram Ghose Street and Amherst Street and it is now clear enough on the admission of both these accused and the other accused Tarapada that these two people had spent the night at a place called 61 Sitaram Ghose Street where Tarapada had for some months been living. There is definite evidence of that and, in particular, there is evidence that Ashoke had a meal on the previous night with Tarapada at that place.

(2.) It is not disputed on behalf of the prosecution that there is a train for Khulna at about 5 o clock in the morning and from the letter found on Abani it would seem clear enough-and this is the prosecution case-that these people were going to Khulna and probably also to Jessore. So far as Abani is concerned that is reasonably plain. The Chief Presidency Magistrate convicted Abani and there is no appeal by Abani before us. He was caught red handed. The Chief Presidency Magistrate also convicted Ashoke and Tarapada and the question is whether there is evidence against those two sufficient to bring home to them the offence of which they have been convicted. The offence of which Tarapada is convicted-and the same is true of Ashoke-is an offence under Section 506 read with Secs.117 and 120-B, I.P.C., that is to say, conspiracy to instigate the public to commit criminal intimidation. I see no reason to take any exception to the form of the charge. It may or may not be a duplication to have Section 117 as well as Section 120-B; but in view of certain arguments and decisions it was thought safer to put it in that form. There can be no objection, in my judgment, to that. It was said as regards the accused Nirmal that the charge under Section 120-B was perhaps introduced merely in order to enable him to be tried with the other people. It would be seen, when. I come to deal with this accused, that he was convicted of publishing these very same leaflets not in red colour but in white colour. I see nothing wrong whatever in Section 120-B being introduced if it were necessary to justify a joint trial.

(3.) The question however is whether the evidence against, in the first place, Tarapada and, in the second place, Ashoke is sufficient to justify their conviction. I have read very carefully and more than once the judgment of the Chief Presidency Magistrate and, as regards Tarapada, I have the greatest difficulty in seeing that there is any tangible evidence or case against him sufficient to justify a finding that be was taking part in any way in this project of distribution of these revolutionary leaflets. It is quite true that Abani who had these leaflets had spent the night at 61, Sitaram Ghose Street; it is quite true that is the mess where Tarapada had for some time been living but there is no proof at all whether Tarapada was or was not a fellow conspirator with Abani and the Magistrate's observations as to probability, while they may be true, undoubtedly are not based upon evidence which proves them. It is of course quite easy to put the hypothesis that 61, Sitaram Ghose Street, was the center of an organization though only temporarily and that Tarapada was really the person who had got these two people to come to his house, provided the leaflets and arranged everything. That may be quite a reasonable suspicion, but there is no evidence whatever. In my judgment Tarapada must therefore be acquitted. The case against Ashoke is very different. There the position is that he was found at this distinctly early hour of the morning in company with Abani who was carrying the leaflets in a brown paper parcel. When they were challenged they told the constables that they were going to Sealdah to entrain for Khulna. There is no reason why Ashoke should not innocently be going to Khulna; as far as we know, he appears to have come from Khulna. The question is whether his association in these circumstances with Abani is sufficient to justify the finding that he knew of Abani's mission as regards the pamphlets and not only knew of it but was taking part in it. They had spent the night in the same place, 61 Sitaram Ghose Street.