NETAI CHANDRA JANA Vs. EMPEROR

JUDGEMENT

(1.) These are 9 appeals from convictions and sentences passed by a Special Magistrate sitting at Hooghly. The accused persons were put upon their trial on a number of different charges. They included, conspiracy to engineer a rising against the Government, conspiracy to commit offences under the Arms Act and, as to five of them, charges of committing dacoity in furtherance of the aims attributed to the terrorist movement. On the appeal being opened, a preliminary point was put forward by Mr. Gupta, Senior Counsel for the appellants, with which the other advocates for the appellants associated themselves. This point was directed to an attack upon the jurisdiction of the learned Special Magistrate, having regard to the case advanced by the Crown against the five appellants implicated directly in the dacoity. It was contended that these five persons with regard to the dacoity were originally charged, not under Section 395 of the Code, but under Section 396, the difference between the two sections being that the latter section, namely Section 396 is the provision in the Code which deals with the class of dacoity in which a murder has taken place. It was further argued that although at the trial the charge under Section 396 was dropped and the lower charge substituted, nevertheless, the substantive case for the Crown advanced against these five people was of such a character that if it were true, (which was of course denied by the appellants) they ought to have been placed upon their trial for dacoity with murder.

(2.) The gravamen of this argument is based upon the wording of Section 25, Bengal Suppression of Terrorists Outrages Act, 1932 the section under which the Special Magistrate was empowered to try the case. I think it will be convenient if I set out that section. It runs as follows: Where in the opinion of the Local Government or of the District Magistrate, if empowered by the Local Government in this behalf, there are reasonable grounds for believing that any person has committed a scheduled offence not punishable with death (these are the important words "not punishable with death") in furtherance of or in connection with the terrorist movement, or an offence punishable under this Act, or under Section 6, Bengal Criminal Law Amendment Act, 1930, the Local Government or District Magistrate as the case may be, may, by order in writing, direct that such person shall be tried by a Special Magistrate.

(3.) Our attention was called to parts of the evidence produced before the learned Special Magistrate. This evidence showed that by reason of the dacoity two lives were lost owing to the action of the five appellants to whom I have referred. The prosecution maintained that as participators in the dacoity the five appellants had provided themselves with cotton wool, and also with a bottle of chloroform. It was said that by means of the chloroform applied to this cotton wool, these five accused asphyxiated the two persons who lost their lives, for the purpose of enabling the robbery to be committed. If that were correct, say the appellants, the crime which they committed was one which was certainly punishable by death under Section 396. It is further suggested that for the sake of convenience or for some other purpose, the Local Government directed that this trial should take place before a Special Magistrate rather than before a Court consisting of three Judges sitting together which it is said is the proper tribunal to try cases of this character. The answer made by the Crown to this argument is, firstly, that the language of the section shows that it is the opinion of the Local Government, erroneous or not, which is to govern trials under the special procedure and, secondly, that even if this is not so, the facts disclosed in the prosecution case do not reveal a true case of murder at all. I may say at once that it has always been a canon of the construction of the type of statute which curtails personal liberty that it should be construed most strictly and, if anything, inclining in favour towards the subject. A wholesome canon I think, and a principle which ought to be rigidly enforced in this Court, more especially when we consider that in this country we have no major Act such as Habeas Corpus upon our statute book.