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02.04.1912 JUDGMENT Richa CALCUTTA HIGH COURT Pulin Behary Das Vs Emperor (Richard Harington, C.J. A Mookerjee and Caspersz, J.) 02.04.1912 JUDGMENT Richard Harington, J. 1. In this case, 35 persons appeal against the decision of the learned Additional Sessions Judge of Dacca convicting them under Section 121A of the Indian Penal Code, and against the sentences varying from transportation for life to rigorous imprisonment for three years passed on them on that conviction. In the lower Court, 44 person were placed upon their trial of these, eight were acquitted; one of those convicted has not appealed and is said to have become insane. The remainder are the appellants before us. 2. Stated, as shortly as possible, the case for the Crown is that the first appellant, Pulin Behary Das, founded an association known as the Dacca Anusilan Samity, that that association had branches or similar associations affiliated to it throughout Eastern Bengal, that the object for which the association was formed was for the purpose of bringing about revolution by force of arms and depriving the King of the sovereignty of British India, that the appellants were the members of the association and that they had agreed amongst themselves to promote the revolutionary object with which the association was formed: that having associated themselves for this purpose, they have committed an offence under Section 121A of the Indian Penal Code. 3. Of the appellants some admit and some deny their connection with the Dacca Anusilan Samity. Those who admit their connection contend that the object with which the Dacca Anusilan Samity was formed was not merely an innocent object but that it was a laudable one, viz., that of improving the physical and mental condition of the Bengali race. They contend that the other societies, which the prosecution says were affiliated to the Dacca Anusilan Samity, were in fact independent societies and had no revolutionary or unlawful object in view. 4. The assessors, who have delivered their opinions at some length, disagree with the Judge in thinking that the object of the Samity was revolutionary: one assessor has considered the question as to which of the appellants are connected with the Society. When the appeal was called on, the learned Counsel for the appellants took certain preliminary objections which may be properly disposed of before the facts of the case are dealt with. He contended, first, that there was no complaint within the meaning of Sections 4 and 190 of the Code of Criminal Procedure, and that, therefore, the proceedings were void ab initio, because the Magistrate had no jurisdiction to initiate them. In the second place, he contended that if there was a complaint, it was not lawfully authorised under Section 196, Criminal-Procedure Code. His third point was that there had been misjoinder of charges. 5. The third point may be very briefly disposed of. The prisoners were charged under Sections 121A, 122 and 123 of the Indian Penal Code. It was argued that a charge under Section 123 could not be legally joined with one under Section 121A. I do not agree with that contention. The charge under Section 121A is that of conspiring to wage war against the King and deprive him of the sovereignty of British India and overawe by means of criminal force or show of criminal force the Government of India. Now, in furtherance of that conspiracy, the persons engaged therein may actively conspire or they may collect arms or they may conceal the existence of their conspiracy from the authorities. All these acts, if done, are in furtherance of (he one transaction, and, therefore, may clearly be charged against these persons, under Sections 235 of the Criminal Procedure Code, and the prisoners may be tried at one trial for all these offences, But had there been any doubt at all in reference to this matter, it would have been set at rest by the decision of this Court in the case of Barindra Kumar Ghose v. Emperor 37 C. 467 : 7 Ind. Cas. 359 : 14 C.W.N. 1114 : 11 Cr.L.J. 453 in which this point was raised and decided adversely to the contention of the appellants. Mr. Dass says that the contention was withdrawn in that case. But that, of course, cannot be done and no conviction which was bad in law could be allowed to stand because the Counsel for the appellant desired to withdraw the objection in point of law. No doubt, the point was not pressed in that case; it was rightly not pressed, because there was nothing in it and it was an idle waste of time to argue it. In any case, we should be bound by the decision, and with that decision we respectfully agree. In this case, the objection has peculiarly little force because the charges under Sections 122 and 123 were not pressed and no judgment was asked for or given in respect of them. 6. The first point, namely, that there was no complaint on which the Magistrate was entitled to issue process, was very strongly pressed upon us. The word "complaint" as defined in Section 4 of the Criminal Procedure Code is an allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some persons, whether known or unknown, have committed an offence; and under Section 190, a Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitutes such an offence. Then comes Section 195 which provides) that in certain cases, inter alia, charges under Sections 121A, 122 and 123 of the Indian Penal Code, unless the complaint is made by order of, or under authority from, the Governor-General in Council, or the Local Government, or some officer empowered by the Governor-General in Council in that behalf, the Magistrate shall not take cognizance of it. Next comes Chapter XVI, prescribing what the Magistrate is to do on taking cognizance and what he is to do before he is entitled to dismiss the complaint; and then follows Chapter XVII dealing with the commencement of proceedings. The first section of the latter chapter, namely, Section 204 provides that if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground, the process must be issued. I pause here to observe that it is not open to the appellants to contend that the Magistrate exercised jurisdiction vested in him under Section 204 wrongfully or issued a process on an insufficient complaint. To make the whole proceeding void ab initio, it is necessary for them to show that there was no complaint before the Magistrate and the Magistrate had no other course but to refuse issue of process on the ground that he had no jurisdiction under the law to issue such a process. It is not enough to say that the materials which the Magistrate had before him were meagre or even insufficient, for if the Magistrate had jurisdiction to issue process, the trial would be perfectly regular even if the Magistrate had exercised that jurisdiction on insufficient materials. The materials which the Magistrate had before him consisted of a sanction authorising one Baba Mon Mohan Chakravarty to prefer a complaint against 47 persons for offencas under Sections 121A, 122 and 123 of the Indian Penal Code, and a petition of complaint signed by Mon Mohan Chakravarty, who said that he had reason to believe that the 47 persons have, amongst themselves, and together with other persons known or unknown, conspired to wage war against His Majesty the King and to deprive His Majesty of the sovereignty of British India, and they had collected arms and had otherwise prepared to wage war with the intention of either waging war or being prepared to wage war against the King, and have further concealed that intent to facilitate the design to wage war against the King. There is also an examination of Mon Mohan Chakravarty in which he proved that he had been directed and authorised by the Local Government to prefer a petition of complaint against these 47 persons and identified the signature of the Secretary which appeared on the sanction. Besides these documents, there was another sanction and a petition of complaint relating to seven other persons, and a third sanction and a petition of complaint with regard to another individual. Similarly, there was an examination of Mon Mohan Chakravarty on solemn affirmation in which he proved these two sanctions and complaints. The last two petitions of complaint recited the first sanction and complaint and stated that the complainant had received sanction to prosecute other persons complained against for the same offences. It has been urged that on those materials the Magistrate had no jurisdiction to do anything and ought to have refused to issue any process at all. Amongst the cases cited by the appellants was that of Emperor v. Lalit Mohan 15 C.W.N. 98 : 8 Ind. Cas. 1059 : 12 Cr.L.J. 2. 7. But that was a case in which the name of the prisoner had been omitted possibly by accident from the complaint made before the Magistrate. It was there held, and quite rightly held, that there was no complaint before the Magistrate in respect of the person whose name had been omitted, and it was held that the fact that his name appeared in the sanction was not sufficient to give the Magistrate jurisdiction when there was no allegation before him that the person whose name was in the sanction had done anything at all.
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