AMRITA LAL HAZRA Vs. EMPEROR

JUDGEMENT

(1.) Oil the 21st of November 1913, during the curly hours of the morning, in execution of a warrant issued by the Deputy Commissioner of Sylhet, a search was made of a room rented and occupied by one Sasankasekhar Hazra, alias Amrital Hazra, at 296-1, Upper Circular Road, in the eastern suburbs of Calcutta. The search warrant authorised the Commissioner of Police to search the premises for explosives, letters and documents in connection with a bomb outrage committed at Moulvi Bazar, on the 27th March 1913. At the search, the police arrested Sasaukasekliar Hazra, as also three other persons, Dinesh Chandra Das Gupta, Chandra Sekhar De, and Saroda Charan Guha, who were found asleep inside the room. The police found in the room various articles a ad papers, and amongst others a tobacco tin fitted with three iron discs (two inside and one outside) and four iron clamps, another tin of similar size, four clamps made to fit the second tin, and other discs and clamps, finished and unfinished. According to the prosecution, these articles were made for use as the envelope or shell of a lethal bomb. On the 23rd November, J. N. Ghosh, the Police Officer to whom the warrant had been endorsed for execution, gave the first information, in which it was alleged that the four persons arrested had committed offences under Sections 4 and 5 of the Explosive Substances Act, 1908. On the 26th November, the District Magistrate transferred the case for disposal to Mr. Veitch. On the 6th December, one Kalipada Ghosh alias Upendralal Rai Choudhury, was arrested in College Street with ten copies of a seditious leaflet, willed Liberty Leaflet, of which two were on pink paper and the other eight on white paper. On the 26tli January, 1914, one Khagendra Nath Choudhury alias Surest) Chandra Choudhury, was arrested in a house at Baranagore, in the northern suburbs of Calcutta. Meanwhile, search warrants had been executed in various places and information gathered as to the antecedents of the persons in custody. The original proceedings, commenced on the 23rd November, were then withdrawn by the Public Prosecutor under Section 494, Criminal Procedure Code, and the four persons arrested on the 2lst November, were discharged on the 19th January, 1914. At the same time, a fresh complaint was made in which Sasanka, Dinesh, Saroda, Chandra Sekhar, Kalipada and, Khogen, along with one Hiranmoy Banerjee, who had been in the interval arrested at Benares were charged under Sections 4, 5 and 6 of the Explosive Substances Act as also under Section 120-B of the Indian Penal Code. The consent of the Local Government required by Section 7 of the Explosive Substances Act, 1908, was also duly obtained. The Magistrate held that the case against Hiranmoy Banerjee had not been established and discharged him. The other six accused were committed to lake their trial in the Court of Session. The first charge against them was to the effect that Sasanka, Dinesh, Saroda and Chandra Sekhar, on or about the 21stNovember, 1913, at 296-1, Upper Circular Road, had in their possession or under their control explosive substances, to wit, Exhibits I, v. VI, VII and other exhibits, all materials for the creation of bombs, with intent by means thereof to endanger life and had thereby committed an offence punishable under Section 4 (b) of the Explosive Substances Act, 1908. The second charge was to the effect that Sasanka, Dinesh, Saroda, Chandra Sekhar, Kalipada and Khagendra, between March, 1911, and 21st November, 1913, at 296-1, Upper Circular Road, and other places in British India had conspired, with one another and other persons, to wit, Biroja, Satish Chandra Chakravarty, Bhupendra Nath Sen, Profulla Ranjan Gupta, Jogesh Chandra Roy, Nirmal Kanta Roy and other persons to make and keep explosive substances with intent by means thereof to endanger life or enable other persons to endanger life, an offence punishable under Section 4 (b) of the Explosive Substances Act, 1908, and had thereby committed an offence punishable under Section 120-B of the Indian Penal Code. The Sessions Judge, after an elaborate trial with the aid of Assessors, with whose, opinion he disagreed, except in the case of Khagendra, came to the conclusion that Sasanka, Dinesh, Saroda and Chandra Sekhar, were guilty under Section 4 of Act VI of 1908, and that Sasanka, Kalipada, Dinesh, Saroda and Chandra Sekhar were guilty under Section 120-B of the Indian Penal Code. Under Section 4 of Act VI of 1908, he sentenced Sasanka to transportation, for fifteen years, and each of the other three, Dinesh, Saroda and Chandra Sekhar, to transportation for ten years. Under Section 120-B of the Indian Penal Code, he sentenced Sasanka, Kalipada, Dinesh, Saroda and Chandra Sekhar, each to transportation for ten years. He further directed the sentences under the two sections to run concurrently. As regards Khagendra, he accepted the opinions of the Assessors and acquitted him. Against the order of the Sessions Judge, five appeals have been preferred, one by each of the accused persons who has been convicted, Another appeal has been preferred by the Crown against the acquittal of Khagendra A rule has also been obtained by the Grown for enhancement of the sentences upon the five accused who have been convicted by the Sessions Judge. The appeals and the rule have been exhaustively argued, in this Court During 32 days, and the questions of law and fact which arise therein have been discussed from every conceivable point of view. Since the close of arguments we have again minutely scrutinised the papers on the record, and we now proceed to record our decision.

(2.) On behalf of the live accused who have been convicted, the order of the Sessions Judge has been assailed as contrary to law and to the evidence on the record. We shall first examine the grounds upon which the legality of the trial has been called in question. But before we do so, it is necessary to set out the relevant portions of "the sections under which the accused have been convicted.

(3.) Section 4 (b) of the Explosive Substances Act, 1908, is in these terms: Any person who unlawfully and maliciously makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in British India, or to enable any other person by means thereof to endanger life or cause serious injury to property in British India, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with transportation for a terra which may extend to twenty years, to which fine may be added, or with imprisonment for a terra which may extend to seven years, to which Hue may be added.