JUDGMENT
Courtney-Terrell, C.J.
1. The ten appellants together with two who were convicted but have not appealed and eight others who were acquitted were tried before the Sessions Judge of the Santhal Parganas sitting at Deoghar on charges under Section 121-A, Indian Penal Code, and as to some of them under Section 19(f), Arms Act. The charge against each under the Indian Penal Code was that between the years 1923 and 1927, they had conspired, together and with certain persons whose names or pseudonyms were specified, to deprive, King-Emperor of the sovereignty of British India or overawe by means of criminal force the Government of India and the Local Government.
2. I do not propose in this judgment to examine afresh the enormous volume of evidence taken in the course of the case. It has been analyzed and collated in a judgment which is a monument of patience, industry and care, and I shall refer to such only of the facts as are necessary for appreciation of the substantial points raised on this appeal and to make clear my reasons where I differ from the learned Sessions Judge.
3. Its appears that in the month of October, 1927, a room at a boarding house in Deoghar occupied by three of the accused persons, that is to say, the appellant Surendra Nath Bhattacharji, his brother Birendra Nath Bhattarcharji (who was convicted but has not appealed), and a person named Tajesh Chandra Ghosh who was acquitted, was searched and these men were arrested. The search disclosed pistols and ammunition in the possession of the first two and by reason of this they were convicted and sentenced under Section 19(f), Arms Act. Birendra Nath Bhattarcharji has not appealed and as regards Surendra, no serious argument could be addressed to this Court in appeal from the conviction and sentence on this charge.
4. There was also found an exercise book containing entries in a secret cipher which was decoded. No question is raised in this appeal as to the completeness or accuracy of the resulting translation. On each one save five of the first 62 pages of the book there appears an entry consisting in most cases of a name or pseudonym followed by an address, and in most cases by a series of what are clearly passwords. Each name is preceded by a pair of letters or a single letter and these are arranged in order so as to be divided into groups and it is clear that a particular letter or pair of letters is appropriate to addresses in a particular locality. The letters “Ag.” for instance indicate a group of persons living in Salkia, The letters “Gg”, indicate persons in an area of which Chittagong is the centre. Persons living up-country at Lahore, Allahabad, Benares and Bettiah are indicated by the letters “Sn.” Those at Jalpaiguri are indicated by the letters “Pg”; those at Sylhet by the letters “Ts”; those at Calcutta by the single letter “H”; persons living abroad including certain notorious conspirators are indicated by the letter “F” and so on. In some cases no identifiable address is given. In the great majority where a name and an address are given it has been shown by evidence that the address was in fact that of the person named or one which provided a means of communication with him and that the person named was actually existing. It was moreover shown that where a person was indicated as a member of a group that he was generally found to be in more or less close association with the other members of that group. Simultaneous searches at the residence of several of the named persons and investigation of their activities disclosed evidence that for the greater part they exhibited a form of activity manifested in different ways but in nearly all cases of a revolutionary trend, and in many instances directed to actual violence in support of such trend. The accused persons could give no account or explanation of the Code which is worthy of serious consideration. The Cipher Code book is further found to contain at the end a list of 17 persons under the heading “victims” and in the cases of many of them there is distinct evidence that they have been concerned either in giving evidence or disclosing information or assisting proceedings against persons of revolutionary tendencies some of whom are among those in the list contained in the earlier part of the Code. Some of the other persons in the list are officers in the forces of the Crown. There is also internal evidence in the shape of the use of pass words of a revolutionary connotation and other indications that the object of the conspiracy was associated with revolutionary activity. Of the 20 accused 13 are persons whose names and addresses are found in the cipher book and such is the case in 7 of the 10 appellants.
5. The main point urged on behalf of the appellants related to the questions of the admissibility of this Cipher Code book as evidence of the existence of a conspiracy and as evidence of the individual membership thereof of the persons named in it or against whom it is tendered. It is argued on behalf of the appellants that the Code must be regarded, if at all, as an act done or a writing made by some one or more of them in furtherance of the common intention after the time when such intention was first entertained by them. They say that it is, therefore, not admissible in evidence against any one of the others until and after reasonable grounds have been established for believing that the person (if identifiable) to whom the Code is to be attributed and each of the others have conspired together. They call in aid of this argument Section 10, Evidence Act.
6. Now the object of this section is merely to ensure that one person shall not be made responsible for the acts or deeds of another until some bond in the nature of agency has been established between them and the act, words, or writing of another which it is proposed to attribute vicariously to the person charged must be in furtherance of the common design and after such design was entertained. I am unable to agree with the contention that the Cipher Code book is to be treated as “the act, word or deed of a particular individual.” The fact that it exists, the fact that it sets forth the names and addresses of a substantial number of the persons charged, the fact that it is in a peculiar form such as is not likely to be found in any Code intended to be used for lawful purposes, and many internal indications referred to by the learned Sessions Judge such as the grouping of the names, and the use of words and names having a revolutionary significance all give rise to a probability, amounting almost to certainty, that the persons named in the Code are associated for some unlawful purpose whose interests demand that it should be kept secret. The further evidence that it is found in the possession of a person clearly engaged in revolutionary activity and that many of the persons named in it are or have been engaged in such activities corroborate the inference that there is in fact a secret conspiracy and that the persons so named are conspiring together for revolutionary purposes. In other words the Cipher Code book is offered in evidence not as an act done or a thing written by one person which is to be attributed vicariously and by the provisions of Section 10, to a person charged so that the person charged may be held responsible for it but as substantive evidence. It cannot have come into existence by chance and there is an almost overwhelming inference that it has been brought into existence to further some common aim of the persons named in it and what that common aim is can be found not only from the intrinsic indications in the Code itself but by seeking some common factor which distinguishes the persons named in it from other members of the general community.
7. It may be said that it is not conclusive evidence. It might for example have been shown that the persons named in it were associated for some legitimate purpose to be kept secret for some legitimate reason, and that the purpose could be distinguished from the characteristic which might have been shown by extrinsic evidence to have been common to the persons concerned. Again it might have been shown that the entry of any particular name was the wholly unauthorized act of a mischievous person and that the life and antecedents of him who bore that name were such as to negative the inference to be drawn from the entry. But unless and until such a contention is raised and demonstrated by evidence the existence of the Cipher Code is in itself a good ground for supposing that the persons named have conspired to commit an offence. This preliminary step having been taken any other acts or writings of individual conspirators in furtherance of the common design become admissible under Section 10. I here venture to make mention of an analogy which I offered to the learned Counsel for the appellants in the course of the argument. Suppose that there had been discovered in the depths of a jungle a house constructed with a central room adapted for meeting purposes and with a number of cubicles each bearing the name of one of the persons charged with conspiracy and that each cubicle was provided with a bed and utensils in every case of varying shape and size but in every case adapted to the measurements and requirements of the person whose name they bore, would not the existence of such a place be very strong if not irrefutable evidence that the persons named were in the habit of meeting at that place for some common purpose? In my view the analogy with the Cipher Code from the point of view of the admissibility and cogency of the latter is very strong.
8. The learned Judge has made a careful examination of the evidence with a view to seeing whether the inference suggested by the existence of the cipher book that a revolutionary conspiracy exists is supported by evidence other than that of the cipher book and at para. III of his judgment he sums up clearly and concisely the nature of that extrinsic evidence. In my opinion it is such as not only to justify his view that it leads to the same conclusion as that afforded by the cipher book but to confirm that inference beyond any doubt whatsoever. He has examined the result of the searches made at the residences of the persons named in the book and the evidence as to the activity of these persons and I see no necessity to recapitulate that summary. The learned Judge has further examined the extrinsic evidence against each of the accused to ascertain whether the strong inference created by the Code is corroborated or displaced in each particular case. If he had required each of the accused to displace by positive evidence the initial inference against him it would even then have been difficult to criticize his method, but he has gone further in the interests of the accused and has required the prosecution to establish the guilt of each by extrinsic and further evidence corroborating the Cipher Code. I am not prepared to say that this method was wrong and I agree that it is safer to require such corroboration and it now remains to consider the case of each of the appellants on this basis. The conclusion at which I have arrived is that the initial inference is corroborated by extrinsic evidence in the case of all the appellants save Indra Chandra Narang and I will, therefore, examine his case before that of the others.
9. This appellant is a youth of 20 years and his name appears in the Cipher Code as a member of the “Sn” group who are connected with Benares, Allahabad, the Punjab and Bettiah He has three brothers one of whom has a publishing and book-selling business in Lahore and a considerable part of this brother’s business seems to consist in the sale of works such as “Bandi Jiban” the perusal of which seems to have a peculiarly exciting effect upon immature and ignorant minds. I do not propose to examine it in detail beyond saying that it is a laudatory account of some notorious assassins and revolutionaries. On account of its appeal to such minds it is undoubtedly a dangerous work but it has not been prescribed and has been widely sold and the brother, however dangerous he may be, has had no proceedings taken against him. Indra was engaged in selling such books on behalf of this brother and probably received a small commission on the sales effected by him. He had in his possession a copy of the presidential address given at a meeting of a body of so-called political sufferers” but no connexion is established between him and this body save that his sister is the secretary and probably gave him the copy. He possessed and says that he bought at the Gauhati congress meeting a copy of pamphlet “called:
A chapter from the unpublished political history of Bengal.”
10. This book also contains an account of revolutionary activity in India. There are, however, two facts which are greatly in favour of this appellant. In the first place there is no evidence whatever, apart from the cipher book, that he had ever been in association with any person alleged by the prosecution to be a member of this conspiracy but more important than this is the fact that on hearing that his rooms had been searched he immediately went to the Police and offered a very long and very complete explanation of his life, activities and movements and he gave an explanation, for his possession of every item of literature that was found in the course of the search. In other words, he took the drastic step of a positive attempt to rebut the initial inference which is afforded by the existence of his name in the cipher book. In my view it is most unfortunate that the Indian law of evidence does not permit an accused person to give evidence in support of his defence but in this case we may safely take it that the explanation offered by Indra substantially represents that evidence which he would have given in open Court. The prosecution have not been able to establish its unreliability by any positive evidence and the explanation is of such a nature and so detailed that it is probable that had it been possible to cross-examine Indra his evidence would not have been shaken. Indra’s conduct in offering this explanation was extremely wise. Notwithstanding the strong inference afforded by the entry of his name in the cipher book, in my opinion, he has succeeded in his particular case in throwing such a doubt upon the inference that he is entitled to the benefit of it. It is possible that his name was inserted in the book and he was given the pass words without any definite information as to the real objects of the conspiracy, and that he has been made a tool of by others. The conviction of and sentence on Indra Chandra Narang, should, in my opinion, therefore, be set aside and he should be set at liberty.
11. Having heard the case for the appellants we thought it desirable to call upon the prosecution to meet the arguments on behalf of such only of them as have been convicted against the view of the assessors, and I will next deal briefly with the case of Lachmi Kanta Ghose. The name of this man occurs first in the cipher list in the “Ag” group living at Salkia and there is much evidence that he was in association with some of the other persons also named in the cipher book at a Sebasram where one of the appellants Bijon Bannarji was a conspicuous worker. Among the workers at this Sebasram besides Bijon Bannarji were one Satish Dhang who was convicted under the Arms Act and the Explosives Act in 1927 and Birendra Bannarji who was convicted in the Dakineswar bomb case. This appellant was a mechanic labourer in the employ of the British India Steam Navigation Co., at their Howrah dock and in that capacity would have opportunity for coming into contact with the crews of vessels coming into the dock. He is described in the Code as “B shell and R sourse (sic)” and furthermore is provided with two sets of pass words. In my opinion the evidence of association with other persons mentioned in the Code is sufficiently confirmatory of the initial inference. There was further evidence of the discovery in his possession of certain plan drawings of a suspicious character and to this evidence the learned Judge has attached considerable weight, but whether or not the Judge has drawn a right inference from the possession of these plans, the other evidence which I have mentioned was sufficiently corroborative of the Cipher Code.
12. I next approach the case of Biswa Mohan Sanyal. This man was a journalist and he was the sub-editor of a weekly vernacular newspaper called “Jagaran” of which Hemanta Kumar Sarkar was the editor. Hemanta is mentioned in the publication “Bandi Jiban” as a close friend of convicted revolutionaries. There was found in Biswa Mohan’s possession a letter from one “Manta” which Biswa Mohan has made an entirely unsuccessful attempt to explain as relating to social work. This letter, however, clearly refers to actual revolutionary activity and moreover to that kind of activity which consists in robbing rich men to obtain funds. Biswas Mohan paid a visit to Jamshedpur on the excuse of visiting his sister. He brought with him a large amount of revolutionary literature including publications by the notorious organization known as the Industrial Workers of the World whose avowed object is to encourage revolutions in other countries. A number of articles written by him have been put in evidence in which he draws attention to the nature of revolution in two aspects, that is to say, violence and mere social change, and encourages his readers not to be frightened by the destructive forces which appear in his opinion to be a necessary preliminary to those changes. To one of them he appends a letter to the editor which is of a most significant character and shows that although he is compelled to keep his picture of revolution vague the object which he desires to be accomplished is the encouragement of violent activity. There was also found in his possession a poem in praise of the District of Nandia which culminates in a glorification of three conspicuous revolutionary assassins. In one of his articles entitled “the revolutionary” which was published in the “Jagaran” newspaper he makes reference to the assassination of an approver in a former prosecution and the reference is clearly intended as praise for the assassins. To my mind the guilt of Biswa Mohan as a member of a revolutionary conspiracy and as conducting the propaganda in support of it is most clearly proved.
13. I next pass to the case of Surendra Nath Bhattacharji who is the brother of Birendra who has not appealed. As I have pointed out above no serious argument could be addressed to us against his conviction under Section 19(f), Arms Act. The evidence clearly proves that he was in close and constant association with his brother and was fully aware of all the activities of the latter. It is quite impossible to argue that the careers of the two were in any way separate. He was also associated with many other persons named in the Cipher Code. The circumstances of his arrest and search at Deoghar and the proved record of his visits to that place indicate that he must have been well aware of, and assisting in, the activities of Biren and that the literature and the weapons found in the search were as much part of his property as they were that of Biren. His name was also disclosed in the cipher writing found in the possession of Sailendra Nath Chatterji at Allahabad and his name appears on one of the two extracts of the cipher book found in the possession of Prasad Chandra Chatterji at Calcutta. The absence of the names of the two brothers from the Cipher Code book found in their possession indicates that they were included in the superior ranks of the revolutionaries for whose use it was prepared. In my opinion the guilt of this man is completely established.
14. This completes the list of those appellants in respect of whom the assessors had any doubt. The cases of the remaining appellants may be very briefly dealt with. The name of Bijon Kumar Bannerji is not found in the cipher list but he was clearly closely associated with the other conspirators and notably with Prasad Chandra Chatterji. He was an active worker at the Sebasram at Salkia with Satish Dhang and Birendra Bannerji. He and Prasad Chandra Chatterji were living under false names and were visited in a false name by Atul Krishna Dutt. In the possession of Prasad Chandra Chattarji was found, as already stated, a paper containing copies of certain entries in the cipher book. Another paper found in the possession of Prasad Chandra Chattarji contained a list of materials clearly intended for the manufacture of bombs. Some of the persons whose names appear in the cipher book, under the heading of “victims” were associated with Bijon Kumar Bannerji in circumstances detrimental to the interests of Bijon. The cases of Bijon, Prasad Chandra Chattarji and Atul Krishna Dutt are closely associated and, in my opinion, their guilt is clearly established.
15. The case of Sailendra Nath Chakravarty of Allahabad calls for little comment. There is overwhelming evidence in his case to confirm the impression created by the entry of his name in the cipher book and the articles and literature found in his possession convict him beyond a shadow of doubt. He is also shown by the cipher addresses in his own possession to have been in close connexion with Surendra Nath Bhattacharji and Upendra Dhar.
16. The case of Upendra Kumar Dhar is no better. There was found in the possession of Sailendra Nath Chakravarty a note book containing his name among others in cipher, a large quantity of revolutionary literature was found at his lodging including a document known as the revolutionist’s catechism to which I shall refer again in dealing with the case of Sushil Kumar Sen. The evidence of the approver Prafulla Ranjan Bose also implicates this man without hope of escape and shows that one of his functions in the conspiracy was to promote dacoities. The entry of his name in the cipher book is most amply confirmed.
17. Sushil Kumar Sen is also shown to have conspired with Upendra Kumar Dhar and with the approver Prafulla to commit dacoity in prosecution of the conspiracy and to secure funds for it and he has made a confession which is clearly both admissible and reliable. He is further the author of a letter found in the possession of Sukhendu Bikas Dutt which clearly has reference to the proposed dacoity and the revolutionist’s catechism found in the possession of Upendra Kumar Dhar was in his handwriting. The absence of his name from the cipher book may well be due to the fact that he was recently recruited and had yet to give proofs satisfactory to his superiors.
18. Sukhendu Bikhas Dutta whose name appears in the cipher list was clearly in close association with Upendra and Sushil and corresponded with them. Among the articles found in his possession was a paper containing formulae for the manufacture of guncotton and for explosive caps of the type used in the Maniktola bombs. There was also found a letter in the same handwriting as another letter found in the search of Upendra Kumar Dhar’s quarters and furthermore a letter from Sushil Kumar Sen to Upendra Kumar Dhar was also found in his possession. He is, therefore, clearly linked with the others and a dangerous conspirator.
19. In the result, I am entirely satisfied that all of the appellants with the exception of Indra Chandra Narang are shown by evidence independent of but corroborating the cipher book as being members of the conspiracy. Their convictions are entirely justified, their sentences do not err upon the side of severity, and their appeals should be dismissed.
20. I desire in conclusion to express the opinion that the skill, energy and industry of the Police exhibited in the unravelling of this conspiracy are worthy of the highest praise and it would appear that a great share of this praise should be awarded to Mr. Daff, the Special Assistant to the Deputy Inspector General. It is worthy of note that the learned Advocates who presented the case for the appellants were unable to criticize or make any attack upon the activity of the Police or on the evidence furnished by them other than by legitimate argument as to its admissibility or cogency. It may well be, as the learned Judge has pointed out, that this conspiracy has received repeated blows and has eventually been detected and crushed at such an early stage that it had no time to grow to formidable proportions. To a certain extent, of course, this is to be attributed to the puerile nature of the ideas held by the conspirators and exhibited by their favourite literature and to some extent to their own emotional but unstable intellects. It must not be forgotten, however, that if allowed to go unchecked such activities may easily result in sporadic assassinations and other forms of violence which the community cannot afford to permit and the fact that such outbreaks seldom occur is for the greater part to be attributed to the skilful and thorough manner in which, as in this case, the Police have done their work. I would also venture to compliment Mr. Manuk and those who have appeared with him for the prosecution and also Mr. Nandkeolyar, Mr. Lalbehari Lal and the others who have presented the case for the appellants upon the way in which they have discharged their very onerous duties.
Kulwant Sahay, J.
21. I agree.
Macpherson, J.
22. I agree.
