AMRITALAL HAZRA; SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS Vs. EMPEROR; KHAGENDRA NATH CHOWDHURY

JUDGEMENT

(1.) On the 21st November 1913, during the early 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 Amritalal Hazra, at 296-1, Upper Circular Road, in the eastern--suburbs of Calcutta. The search warrant authorised the Commisioner 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 Sasankasekhar Hazra as also three other persons, Dinesh Chandra Das Gupta, Chandrasekhar De and Sarada Charan Guha, who were found asleep inside the room. The Police found in the room various articles and papers, and amongstotbers, a totacco-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. Ghose, 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 of ences 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 Veirh. On the 6th December, one Kalipada Ghose, alias Upen-dralal Rai Chaudhuri, was airestcd in College Street with ten copies of a seditious leaflet called Liberty leaflet, of which two wrere on pink paper and the other eight on white paper. On the 26th January 1914, one Khagendianath Chaudhuri, alios Sures Chandra Chaudhuri, 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 The original proceedings, commenced on the 23rd November, were then withdrawn by the Public Prosecutor under Section 494, Criminal Procedure Code, and the four persons arrested on the 21st November were discharged on the 19th January 1914. At the same time, a fresh complaint was made in which Sasanka, Dines, Sarada, Chandrasekhar Kalipada and Khagen, along with one Hiranmoy Banerji, 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 120B 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 rase against Hiranmoy Banerji had not been established and discharged him. The other six accused were committed to take their trial in the Court of Session. The first charge against them was to the effect that Sasanka, Dines, Sarada and Chandrasekhar, on or about the 21st November 1913, at 296-1, Upper Circular Road, had iif 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 (1892) 2 Q.B. 519 : 61 L.J.M.C. 181 : 5 Rule 10 : 67 L.T. 201 : 41 W.R. 144 : 17 Cox, C.C. 542 : 56 J.P. 712 of the Explosive Substances Act, 1908. The second charge was to the effect that Sasanka, Dines, Sarada, Chandrasekhar, 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, Satischandra Chakrabarti, Bhupendranath Sen, Praphulla-ranjan Gupta, Jogeschandra 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(6) of the Explosive Substances Act, 1908, and Lad thereby committed an offence punishable under Section 120B 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, Dines, Sarada and Chandrasekhar were guilty under Section 4 of Act VI of 1908, and that Sasanka, Kalipada, Dines, Sarada and Chandrasekhar were guilty under Section 120B, 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, Dines, Sarada and Chandrasekhar, to transportation for ten years. Under Section 120B, Indian Penal Code, he sentenced Sasanka, Kalipada, Dines, Sarada and Chandrasekhar 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 Crown 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 the arguments, we have again minutely scrutinised the papers on the record, and we now proceed to record our decision.

(2.) On behalf of the five 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 acutally caused or not, be punished with transportation for a term which may extend to twenty years, to which fine may be added, or with imprisonment for a term which may extend to seven years, to which fine may be added.