KALIJIBAN BHATTACHARJEE Vs. EMPEROR

JUDGEMENT

(1.) In the mon December, 1934, 15 persons consisting of young men and boys were put upon their trial for the crime of being engaged in a conspiracy to commit various offences under the Arms Act. The Government had ordered that these 15 persons should be tried by a Magistrate with special powers. The Magistrate convicted 13 of the accused and acquitted the other two. Of the 13 convicted men, two were given light sentences and did not appeal. The remainder are before us now in this group appeal.

(2.) Two points of law were taken both before the learned Magistrate and before this Court which I think it is convenient I should deal with at once. The first point was a plea of the jurisdiction of the Court. It was argued that Ex. 1 in the case, Government's order for the prosecution, had not been properly proved; and as it was an order of such a kind that under Section 25, Bengal Terrorists Act, it deprived the accused persons of the right of trial before a Judge and a jury, this want of proper proof was more than a mere technical omission. As I understood the argument which was placed before us, it was this: that the letter in question was not the original order from Government but was merely a copy and as it was a copy only, it was necessary that the provisions of Section 78, Evidence Act, should be closely followed. On the other hand, it was argued by the Crown that this was not a copy of an order at all, that it was an original order and that under Section 57, Evidence Act, the Court in such circumstances would take judicial notice of such a letter without proof; and if judicial notice could be taken, and was taken, of the letter, then the presumption in law set out in Section 79 of the Act, would at once arise and there was no evidence that presumption in law had ever been rebutted or had been attempted to be rebutted. The document in question is headed " Government of Bengal, Political Department, Political Branch, No. 12783 p. Order dated Calcutta 16 November 1934." It then sets out the names of 18 persons who in the opinion of the Governor in Council have committed offences under various sections of the Indian Arms Act and under each and all of these sections read with the criminal conspiracy section of the Indian Penal Code. The letter goes on to say: Now, therefore, in exercise of the power conferred by Section 25, Bengal Suppression of Terrorist Outrages Act, 1932, the Governor in Council is pleased to direct that the said persons shall be tried by the Sadar Subdivisional Magistrate of Rangpore, Babu Purna Chandra Acharji, who has been invested with the powers of a Special Magistrate.

(3.) The letter ends with: By order of the Governor in Council. J. George. Under Secretary to the Government of Bengal. 16 November 1934.