PURNANANDA DAS GUPTA Vs. EMPEROR

JUDGEMENT

(1.) These appeals are from the judgment of a Special Tribunal constituted under Government Order No. 13011-P dated 31 October 1935, which was made under the powers conferred by Sub-sections 1 and 2 of Section 4, Bengal Criminal Law Amendment Act, 1925. The tribunal was constituted with the following Commissioners : Mr. H.G.S. Bivar, I.C.S., District and Sessions Judge, Mr. K. C. Das Gupta, I.C.S., District and Sessions Judge, and Rai N.C. Bose, Bahadur, Deputy Magistrate and Deputy Collector, Bankura. The tribunal was set up for the trial of 31 persons whose names are set forth in the order itself and who were accused of offences specified in Schedule 1 of the Act we have mentioned. Mr. Bivar was appointed to be the President, of the Commissioners. The trial began on 16 November 1935 on a complaint which. was filed before the tribunal by the Deputy Superintendent of Police, Rai Saheb Kant Chandra Mookerjea. The complaint was marked as Ex. 1203 in the proceedings. The other necessary legal requisites for the trial of the accused were supplied by : (1) - Government Order authorizing Rai Saheb Katni Chandra Mookerjee to file a petition; of complaint - Ex. 1204; (2) Government, Order authorizing a trial under the Explosives Act-Ex. 1207; and (3) District Magistrate's order authorizing a trial under the Arms Act - Ex. 1208. Of the 31 accused, named in the Government Order, 30 were produced before the tribunal on the opening, date. Accused 31, Sitanath De, was not present as at that time he was absconding. He was, however, arrested in the District, of Tripura on 3 May 1935 while the trial was going on and on the basis of Government Order, which is Ex. 1209 of the proceedings, Sitanath was put on his trial. before the tribunal jointly with the other accused persons on 12 May 1936. The fact that Sitanath was not present on 8 May but was subsequently put into the, dock with the rest of the accused persons did not necessitate a de novo trial because Sitanath was given certified copies of the evidence which had already been given and so under Section 7-A, Bengal Criminal Law; Amendment Act, it was not necessary to commence the proceedings over again and. the trial proceeded as if Sitanath had been present from the very beginning. Certain witnesses were, however, recalled and further examined-in-chief and cross-examined.

(2.) It should be stated that before the commencement of the trial (as the Commissioners state) upon the application of the Public Prosecutor, the Court tendered pardon to two of the accused persons, viz. Santosh Kumar Sen and Bejoy Kristo Pal Chowdhury upon condition of their making a full disclosure of all the facts within; their knowledge. That was done under the. provisions of Section 337, Criminal P.C. And after the Public Prosecutor had made his opening address to the Court, these two persons were put into the witness-box and. they appear on the record as witnesses 1 and 2 called on behalf of the prosecution. After the examination and cross-examination of these two approvers as they had then become, certain other witnesses were examined on behalf of the prosecution and charges were afterwards framed against all the remaining 29 accused persons. These charges were framed on 3 October 1936. The trial then proceeded and a large number of witnesses were called (502 in fact) and their evidence was finished by 4 December 1936. The next stage was, that on 5 December 1936, on 7th December 1936, 8 December 1936, and 9 December 1936, the statements of the accused were recorded. It is a significant but not an unusual feature in this case that none of the accused attempted to call any evidence on their own behalf. Arguments on behalf of the prosecution began on 9 December 1936 and went on until 3 February 1937 and two days later, that is on 5 February 137 the arguments for the defence began and they went on for a whole month and finished ultimately on 6 March 1937. The judgment in this case, that is the judgment with which we are now concerned, was delivered on 27 April 1937. It is note, worthy that all the findings of the learned Commissioners were unanimous. We are now in the position of having to consider the evidence given in the case and the arguments put forward on behalf of the accused persons in order to determine whether the findings arrived at by the learned Commissioners and the verdict and sentences which they thought fit to give are correct.

(3.) It must be obvious to every one that in a matter of this kind the appeal turns, largely if not altogether, upon plain questions of fact. Therefore, the Appeal Court from the outset is at a great disadvantage as compared with the learned Commissioners who saw the witnesses in the witness-box, were in a position to observe their demeanour and to form an opinion as to their reliability and veracity from the manner in which they gave evidence and the way in which they answered and reacted to the questions put to them in cross-examination. We are in the position of having to give a decision on a perusal of the evidence recorded in cold print with however the assistance of the very able, cogent and complete arguments put forward by Mr. Dines Chandra Roy and the other learned advocates appearing on behalf of the appellants in this appeal. We have stated that this is largely, if not entirely, a matter which depends upon the view one takes on the questions of fact, but certain considerations of a legal character were raised before the tribunal and they have been canvassed again before us. Before dealing with those arguments, we must first of all refer to the charges which were made against these accused persons. A primary and principal charge was made against all the 29 accused persons who stood on their trial before the learned Commissioners and they were charged (it is perhaps convenient to use the exact words of the charge) thus: That you between 1929 and 31 October 1935, at Titagarh, Police Station Titagarh, District 24 - Parganas, and other plades mentioned in Schedule A and other places unknown, along with Santosh Kumar Sen (P.W. 1) and other persons mentioned in Schedule B and others unknown, were parties to a criminal conspiracy to wage war against His Majesty the King-Emperor or to deprive His Majesty of the sovereignty of British India or of any part thereof or to overawe by means of criminal force or show of criminal force the Government of India or the Local Government, and thereby committed an offence punishable under Section 121-A, I.P.C.