Fletcher, J.

[1] This is a suit to recover damages resulting from an alleged conspiracy.

[2] The present suit is one of five analogous suits brought against the present defendants arising out of a criminal case which was commonly known as the Midnapore Bomb conspiracy Case. The Emperor v. Santosh Chunder Dass 13 C.W.N. 861 : 9 C.L.J. 663 : 2 Ind. Cas. 681 [LQ/CalHC/1909/221] : 10 Cr.L.J. 125.

[3] The plaintiff, Peary Mohan Das, is about 68 years of age. He appeared to me to be older. He was formerly in Government service as a Sub-Registrar of deeds--but in the year 1884 his services were dispensed with owing to his having returned to the person presenting the same a deed which was believed to be forged.

[4] Since the year 1881 the plaintiff has lived in Midnapore where ho appears to be held in respect; and esteem.

[5] The first defendant, Mr. Donald Weston, is a member of the Indian Civil Service and was formerly District Magistrate and Collector of Midnapore. The second defendant, Moulvi Mazaharul Huq, is a Deputy Superintendent in the Bengal Police, Having been employed for sometime in the Criminal Investigation Department, towards the end of 1907, he was Appointed as Deputy Superintendent of Police at Mindnapore. The third defendant, Babu Lal Mohun Guha, is an Inspector in the Bengal Police, and in the year 1908 was Inspector of Police at Mindnapore.

[6] The plaintiff s wife is Basanta Kumari. Basanta, who is old and infirm, is mother s sister (mashi) to Dr. Rash Behari Cthose, C.S.I., one of the leading Vakils of this Court.

[7] The plaintiff has three sons, Ashutosh, Santosh Chandra and Paritosh.

[8] In the early part of the year 1908, his household consisted of himself, his wife, his

three sons, a grandson (daughter s son) Jotindra Nath Sen, a cook, a maid servant and a boy servant, Bonomali Das. In addition to these there were the young ladies in the zenana. On the 14th January 1908, Santosh who had obtained the appointment of a probationary Sub-Inspector in the Bengal Police went to the Police Training College at Ranchi.

[9] On the 3rd May the plaintiff s house and six other houses at Midnapore were searched by the Police but nothing incriminatory was found. What the reason for this search was or from whom the information emanated which led to the Bearoh we do not know, but apparently it had been intended by the authorities that these searches should take place simultaneously with the searches in Calcutta in connection with the Alipore Conspiracy.

[10] On the night of the 13th of June Santosh returned to his father s house owing to the vacation at Ranchi. On the 3rd July the plaintiff s son Ashutosh, who was a mail clerk in the Midnapore Post Office, was transferred on six hours notice from Midanpore to Muzufferpore.

[11] On the night of the 7th July, the Moulvi applied for search-warrants to search the plaintiff s house and Hanumanjee a temple of which one Surendra Nath Mookerjee was the pujari.

[12] The application for the search-warrants was made to Mr. Nelson, late at night. On

the morning of the 8th July, the search of the plaintiff s house was conducted by the Moulvi and Lal Mohun, assisted by others of the Police--the house being surrounded by the Military Police Almost at the end of the search a bomb was discovered in the plaintiff s baitakhannah and Santosh was arrested. The search party was in charge of Mr. Brett, the Assistant Superintendent of Police.

[13] The bomb was subsequently taken to Mr. Weston and afterwards opened by

Captain (now Major) Weinman, I.M.S., then Civil Surgeon at Midnapore. Upon the

bomb being opened by Major Weinman, it was found to contain a large number of shots and brownish-yellowish powder which on examination by the Chemical Examiner proved to be a mixture of sulphide of arsenic and chlorate of potash. This mixture is used in what are commonly known as "throw-down" bombs much in use in this country. The bomb, however, contained almost one ounce of the powder. The evidence of the Chemical Examiner proves that the bomb was a dangerous article if thrown down at close quarters.

[14] The bomb, however, apparently was not an article requiring much skill in its manufacture. The powder and shot were contained in a leather covering over which was wrapped some cloth--the bomb being encased in a jute wrapping. It is said by the plaintiff that the bomb was planed in his baitakhannah at the instigation of the defendant, the Moulvi, by the boy Bonomali.

[15] On the 9th July, Santosh was produced before Mr. Nelson, Joint Magistrate of Midnapore, and after the Magistrate had recorded a statement of Santosh s ho was remanded to jail until the 23rd July. On the 23rd of July, Santosh was again produced before Mr. Nelson and on the same day either in the Court room or in the Court premises the plaintiff was arrested. The plaintiff alleges that between the 9th and 23rd July interviews took place between him and the defendants, at which threats were held out to him that unless he induced Santosh to confess he himself would be arrested and that it was owing to him failure to induce Santosh to confess that he, the plaintiff, was arrested on the 23rd July.

[16] On 29th July, Santosh made a, confession at the defendant Weston s house, the

confession being recorded by Mr. Nelson, Mr. Weston was present at the recording of the confession. It is said that this confession was not a genuine confession but was made by Santosh after being tutored by the Monlvi and Lal Mohun with a view to obtain his father s release. On the 26th July another bomb is paid to have been found by a mehtrani in a drain near the Moulvi s house. On the 31st July further searches took place and in the record-room of Baroda and Siroda Dutt a bomb was discovered by Lal Mohun.

[17] This bomb is alleged to have been placed there by the Police. The bombs found in the drain and in the record-room were despatched to the Chemical Examiner and found on examination to be similar in composition to the bomb found in the plaintiff s baitakhannah.

[18] On the 31st July, the following persons were arrested;--Baroda Prasad Dutt, Saroda Prosad Dutt, Jotindra Mohun Banerjee, Nirapada Mookerjee, Madhu Sudan Dutt, Sham Lal Shaha, Nibunja Maiti and Surendra Nath Mookherjee.

[19] Further arrests wore made on the 28th and 29th of August, the net result being that including one or two persons who subsequently surrendered, thirty persons in all were arrested in connection with an alleged conspiracy. Amongst the persons who were arrested on the 28th of August were Bibu Abiriash Chandra Mitter, Babu Upendra Nath. Maiti, the Rajah of Narajole and other persons who are persons of position and wealth in Midnapore. Surendra Nath Mookherjee on the 7th August was remanded to Police custody for seven days. On the 13th August, Santosh was taken out of jail into Police custody for three days.

[20] On the 15th August, Surendra made a confession which was recorded by Babu Surendra Nath Chakravarti in the house and presence of Mr. Nelson, the Joint-Magistrate at Midnapore. This confession is said to have been made by Surendra after being tutored by the Police whilst he was in Police custody. On the 16th August, Mr. M.B. Dutt telegraphed to the Government of Bengal complaining of the methods adopted by the Police in connection with the ease and on the 27th August he wrote to the Government enclosing statements of Ashutosh (the plaintiff s son), Jotindra Nath Sen (the plaintiff s grandson) and Upendra Nath Mookerjee (brother of Surendra Nath Mookherjee). On the 21st August., Home of the accused who were then under arrest were produced before Mr. Nelson not in Court bat in a room at the Court premises. Sanction to prosecute twenty-seven of the accused was procured from the Local Government on the 31st August and on the same day the accused that bad been arrested earlier than the 28th August were produced before Mr. Nelson.

[21] On that occasion the plaintiffs, Nirapada Mookerjee and Jotindra Nath Banerjee, were discharged. According to plaintiff s case on that occasion Santosh and Surendra both presented petitions to the Court which amounted to retractation of their confessions.

[22] On the 4th September, the plaintiff s son Ashutosh DRSS was arrested and produced before the Joint Magistrate who remanded him to jail until the 7th September. On the 7th September the accused were produced in Court and then it is agreed that Santosh and Surendra presented petitions to the Court alleging that their confessions had been extorted from them.

[23] On the 7th September the first information report was filed in connection with the case.

[24] This report implicated 154 persons in the conspiracy.

[25] No evidence having been offered against the accused the Vacation Bench of the High Court admitted most of the accused to bail between the 13th September and 2ad October.

[26] On the 4h November Mr. Sinha, then Advocate-General, appeared for the Crown before the Magistrate. On that day and the next day the informer, Uakhal Chandra Laha, was examined and stated that the story he was alleged to have given to the Police was wholly untrue and that the story had in fact been invented by the Police.

[27] On the 9th November, Mr. Sinha withdrew the prosecution against all the accused except Santosh Chandra Dass, Surendra Nath Mookherjee and Jogjiban Ghosh.

[28] The Magistrate subsequently committed these three accused for trial.

[29] Mr. Smither, the Additional Sessions Judge of Midnapore, convicted all three on 30th January, 1900. Santoah, Surendra and Jogjiban all presented appeals to the High Court. The appeals were heard by a Bench consisting of the Chief Justice and Mookerjee, J.

[30] On the 1st of June 1909, the High Court set aside the convictions against Santosh, Surendra and Jogjiban. Within a few days after the acquittal of Santosh, Surendra and Jogjiban, the Lieutenant-Governor directed Mr. Macpherson, the Commissioner of Burdwan, to bold a departmental inquiry into matters relating to the case. The report of that inquiry has not been produced.

[31] But portions of the evidence given before that inquiry have been produced and have been used by the defendants Counsel for the purpose of endeavouring to contradict the witnesses for the plaintiff. The foregoing remarks give in brief outline the principal events in the Midnapore Conspiracy Case.

[32] This suit was instituted by the plaintiff on the 15th November, 1909.

[33] The substance of the plaintiff s case is that his arrest and the other events that followed thereon wore done in furtherance of a conspiracy to injure or cause damage to him and not in the bona fide belief or with a reasonable suspicion that the plaintiff was connected with the alleged Midnapore Bomb Conspiracy Case or with the bomb found in his house. The object of the conspiracy is alleged to have been that unless the plaintiff induced his son Santosh to make a confession the defendants would cause the plaintiff to be arrested. The plaintiff also alleges that in furtherance of such conspiracy he was arrested and that damage as such has resulted to him. This is the sum and substance of the plaintiffs cause of action as set out in the plaint.

[34] Each of the defendants filed separate written statements.

[35] The reason for the arrest of the plaintiff is stated in the game terms in the written statements of the defendants Weston and Moulvi and is in the following terms:

That, on the 23rd July 1908, an informal ion was laid by the defendant, Muolvi Mazaharul Huq, before the Joint-Magistrate of Midnapore, a Judicial Officer, of there being reasonable grounds for the belief that the plaintiff had been accessory to the commission of an offence under the Explosive Substances Act in connexion with the said bomb which was found in his house and an application was made for the issue of a warrant for the arrest of the plaintiff. The said information watt laid and the said application for the issue of a warrant made by the said defendant, Moulvi Mnziharul Huq, in good faith, lawfully and in discharge of his duty and this defendant (i.e.), the defendant Weston) and other superior officers of the defendant Moulvi Mazaharul Huq in good faith approved of the said information being laid and of the application for the issue of a warrant of arrest being made.

[36] The defendant, Lal Mohan, in his written statement states that ho had nothing to do with the application for the issue of the warrant to arrest the plaintiff, but that he arrested the plaintiff under instructions from the Moulvi.

[37] The defendants also admit in their written statement that the application of the 7th July for the warrant to search the plaintiff s house was made with the approval of the defendant Weston. On this suit being called on for hearing an application was made by Counsel to amend the written statements by striking out this admission.

[38] The other defences raised in the written statements, except as to the service of notices on the defendants with which I will deal later, may be summarised shortly, viz., that the defendants acted with reasonable and probable cause and in good faith.

[39] And, at the Bar, the learned Advocate-General has stated that the defendants say that the story as told by the informer in the Midnapore Bomb Conspiracy case was not only believed by them to be true but that the same was in fact true.

[40] Issues were settled between the parties as follower-

1. Did the defendants or any two of them in concert or in conspiracy with each other conspire to injure or cause damage to the plaintiff or did they or any two of them in furtherance of such conspiracy cause injury or damage to the plaintiff

2. Did the defendants or any two of them in furtherance of such conspiracy maliciously, wrongfully or illegally

(a) Search or cause a search to be made in plaintiff s house on the 8th of July

(b) Trespass or cause a trespass to be made upon the premises of the plaintiff

(c) Arrest or cause the plaintiff to be arrested

(d) Imprison or cause the plaintiff to be imprisoned

(e) Institute or continue a prosecution against the plaintiff

3. Are the defendants entitled to notice under Section 80, Civil Procedure Code



4. If so, have the provisions of Section 80, Civil Procedure Code, been complied with or have the defendants or any of them waived the right under Section 80, Civil Procedure Code, or are they estopped from raising the plea that notice in accordance with the terms of the statute has not been duly served



5. Is the suit barred by limitation P

6. What damages is the plaintiff entitled to

[41] The defendants carry the story back to the Partition of Bengal in the year 1905 in

order to show what was their knowledge of the state of the district when they say that information of the Midnapore Bomb Conspiracy came to their knowledge.

[42] Following on the Partition of Bengal it cannot be doubted that there was in Midnapore and other parts of Bengal great political agitation.

[43] Speeches were delivered against the Partition, the Swadeshi movement came into being, Akras and Samities were formed or extended and in some cases attempts were made to enforce the Swadeshi movement by criminal intimidation, force and violence. Volunteers were enrolled originally for the purpose of keeping order at meetings and of performing similar duties but whose duties wore subsequently extended to picketing the bazars in order to enforce the Swadeshi boycott. There also came into being literature samples of which have been exhibited in this case. This literature included periodicals and books which preached revolutionary doctrines and destruction of Europeans.

[44] Amongst this literature was the Medini Bandhub published by one Deb Das Karan

at Midnapore and two books known as Bartiman Rananiti (The Art of Modern Warfare) and Mukte-kon-Pathe (The Way of Salvation lies), the two latter being published in Calcutta. The Medini Bundaub was a newspaper appearing regularly at Midnapore.

[45] The Bartaman Rananiti and the Mukte-kon-Pathe were nut published in secret but bear the imprint of the publishers and the price, 12 annas.

[46] There can be no doubt that this class of literature preached to the youth of the country must have had a grave effect. The defendants also rely upon the prosecution of Khudiram for sedition and his being dragged through the town subsequently to the withdrawal of the prosecution in a carriage said to belong to Mr. K.B. Dutt as part of the information in their possession prior to the relation of the informer s reports. That the article which Khudiram was said to have been distributing was highly seditious there can be no doubt. But the prosecution appears to have been in a difficulty to prove that Khudiram distributed the leaflet. Too much reliance has, I think, been attempted to be placed by the defendants on this incident. On the 6th December, 1907, au attempt was made to blow up the train of the Lieutenant-Governor at Naraingarh not far from Midnapore. The two defendants, the Moulvi and Lal Mohun, and one Rai Ram Yadav Mockerjeo Bahadur of the C.I.D. were deputed amongst ethers to inquire into this case.

[47] The Moulvi says Mr. Westom gave him instructions in writing particularly asking him to ascertain whether any person had come back from abread after learning mining, Those instructions have not been produced. Certain coolies engaged as plate-layers on the railway were arrested. One of these, Sibu, having first confessed became an informer. The others also confessed, but one of them Nepal not until he had been banded over to the custody of the defendant, Lal Mohun.

[48] The confessions went to show that those coolies placed gun-powder under a pot-sleeper on the line, the motive for the crime being that the coolies wished to injure one of the head coolies by blowing up one of the pot-sleepers for which ho was responsible. The Police also produced from the hut of one of the coolies so mo gun-powder hi a piece of newspaper. The expert evidence, however, showed that the explosive used was, picric acid. It may be noticed that this was the first anarchist outrage in India in which picric acid was the explosive used. The accused when brought before the Court immediately retracted their confessions.

[49] The evidence as to the commission of the offence, apart from the retracted confessions, consisted of the evidence of the informer that the explosion was caused by the gun-power placed under the pot sleeper and the expert evidence that the explosion was caused by picric acid.

[50] The coolies were convicted both in the Sessions Court and by this Court on appeal.

[51] Subsequently, the appeal in the Alipore Bomb Case 14 C.W.N. 1114 : 11 Cr. L.J. 453 : 7 Ind. Cas. 359 [LQ/CalHC/1909/438] : 37 C. 467 came on to be heard in this Court before the Chief Justice and Carnduff, J. I take the following extract from their judgment: Indeed, it may baa question whether such a confession has not come to light in the course of these proceedings as it baa been stated before us by Mr. Norton that for one of the attempted outrages on the late Lieutenant-Governor disclosed by the confessions in this case certain coolies have been tried and convicted and are still in prision, part of the evidence against them being their own confessions. If the confessions in this case are true then as Mr. Norton has remarked there may be reason to apprehend that those coolies have been improperly convicted. Mr. Norton who appeared for the Crown in that case as well as this has submitted that the Government should be moved by us to release those coolies. It is, however, outside our province to investigate this matter but, no doubt, it will be made the subject of careful inquiry by the Government if this has not already been done and the representation of Counsel for the Crown will be brought to the notice of the Government."

[52] Mr. Norton now says that he made no such statement. The Chief Justice and Carnduff, J., tell me that they are positive that he did.

[53] There can be little doubt that the re collection of the learned Judges supported by their judgment written at the time ought to be preferred.

[54] The case against the coolies is, I think, open to Suspicion and the evidence that has been given in this case leaves me unconvinced as to its being a genuine case.

[55] In the Midnapore case it is alleged in the first information that "in course of the investigation of the Naraingarh train wrecking case, Midnapore, which occurred on the morning of the 6th December last, a cine was obtained of a conspiracy by a secret society working at various places at Midnapore acid elsewhere and having as one of its objects the assassination of the District Magistrate by means of bombs, explosives or firearms."

[56] Nothing has been disclosed in this case to suggest that such a statement has any foundation. The discovery of the Midnapore Bomb Case depended, if true, solely on the evidence of an informer, Rakhal Chandra Laha, who was appointed informer in the middle of May 1908.

[57] It may be mentioned that the coolies who were convicted in the Naraingarh case were, after the determination of the appeal in the Alipore ease, released by order of the Government.

[58] On the 7th and 8th December 1907 was held at Midnapore what is called a District Conference in connection with the Indian National Congress.

[59] Mr. K.B. Dutt, who appears as leading Counsel for the plaintiff in this case, was Chairman of the Conference. Amongst those who attended were Mr. Surendra Nath Banerjee and Mr. Arabinda Ghose.

[60] Mr. Dutt appeared at the Conference dressed in European style and declined to allow a discussion on the question of Swaraj as being inopportune at that time.

[61] This produced a split in the Conference, the result being that Mr. Arabinda Ghose and the majority calling themselves "Extremists" left the Conference and held a separate meeting, whilst Mr. Dutt, Mr. Surendra Nath Banerjee and a few others who have been called "The Moderates" were the remnant of the original conference. The evidence t shows that Mr. Surendra Nath Banerjee on this occasion as on other occasions was during his stay at Midnapore a guest in Mr. Dutt s house. With regard to the volunteers whose duty it was to welcome and see to the comforts of the delegates it appears that Mr. Dutt had ordered that none of them were to appear with latkies. This apparently offended Satyendra Nath Bose who was then the captain of the volunteers. This Satyendra is the same Satyendra who was subsequently hanged for the murder of the informer in the Alipore Conspiracy case.

[62] Satyendra handed over the captaincy of the volunteers to Santosh, one of the plaintiff s sons.

[63] In this manner Santosh, I think, became possessed of the lists of volunteers

badges, etc, which were found at the search of the plaintiff s house on the 8th July 1903.

[64] Santosh very quickly, however, resigned the captaincy of the volunteera, his father the plaintiff having warned him that it would be unwise for him to have anything to do with them as he (Santosh) was then a candidate for appointment as a Probationary Sub-Inspector in the Bengal Police.

[65] On the 14th January 1908, Santosh having been appointed a Probationary Sub-Inspector in the Bengal Police went to Ranchi Police Training School. Now, that Santosh at this time was known to the local authorities as an "Extremist" I do not believe. The papers relating to his appointment as a Probationary Sub Inspector were sent by the Inspector-General of Police through the local authorities at Midnapore. It is hardly conceivable that if the local authorities knew that Santosh was an unfit parson for appointment they would not have called the Inspector-General s attention to the fact.

[66] In the year 1906 when the Moulvi had for some time been stationed at Midnapore he had lodged in the house of Abdur Rahman who has been called as a witness in this case.

[67] Some time early in January 1903, relations between the Moulvi and Abdur Rahman were renewed which ultimately led to Abdur Rahman being appointed a paid informer. The Moulvi fixes the date of the conditional employment of Abdur Rahman as early in January.

[68] On the 19Lh January according to the Moulvi s evidence Abdur Rahman who, it had been arranged, should proceed to Naraingarh came and informed him that Khudiram Bose and Sarat Chandra De were missing from Midnapore with Jogjiban s revolver and that he feared that they had gone to shoot Mr. "Weston who was then at Jhargram.

[69] On the next day, the 20th January, the Moulvi went and. informed Mr. Cornish who

went that day to Jhargram by the Bombay Mail having the train specially stopped at Jhargram. The Exhibits LXIV, LXXII, 7A and CLXXVIII show conclusively that Mr. Weston was in Jhargram at that time and that Mr. Cornish went there to him.

[70] That, the Moulvi reported this to Mr. Cornish and that he proceeded to Jhargram is clear. But whether Rahman did in fact obtain that information is another matter. No reliance, in my opinion can be placed upon any statements made by Rahman or the Moulvi unless they receive independent corroboration. On the 21st January, Rahman was definitely appointed as a paid informer and he is said almost immediately to have produced to the Moulvi the revolver, Exhibit XXI, which he says he got from Satyendra Nath Bose on the pretext that he wished to kill Mr. Cornish for having stopped some Mohamodan religious ceremony. Satyendra, it is said, told Rahman that Mr. Weston was responsible as Cornish acted under his orders and suggested that Rahman should shoot Mr. Weston. Rahman says he feigned assent and Satyendra lent him this revolver, Exhibit XXI. The Moulvi says he produced this revolver to Mr. Cornish.

[71] Mr. Cornish made the sketch Exhibit 73, By some extraordinary over sight no date or description of the revolver appears on Exhibit 78.

[72] This revolver was subsequently found upon Khudiram when he was arrested after the Muzufferpore murder. The evidence, I think, establishes that at some time this revolver found on Khudiram was produced to Mr. Cornish. The different dates that have been given of the date when the revolver was produced make it difficult to state with certainty when this revolver was produced to Mr. Cornish; but on the whole I think that the balance of the evidence is in favour of the date given by the Moulvi, How Rahman got hold of the revolver is another matter. I do not think that he was anything like as much in the confidence of Satyendra, Sarat and Khudiram as he wishes to make out, although there is no doubt he knew them as being instructor at the Akra in which they played.

[73] Rahman, on 28th January, was taken to Calcutta and subsequently produced before Mr. Plowden, Deputy Inspector-General of Police, at the Railway Police Office at Howrah. At the interview there were also present Mr. Weston, the Moulvi and Mr. Cornish. It is said, at that interview Rahman gave information which led to the discovery of the bomb factory at Manicktollah. Mr. Plowden says, he rather thinks that Rahman did say something about a bomb, but denies that Rahman gave him information as to the bomb factory. I think from the other evidence that Mr. Plowden is mistaken in his recollection that Rahman may have said anything about a bomb. I am satisfied that Mr. Plowden is correct that Rahman did not tell him about the-bomb factory. That would, indeed, have teen a piece of information so important that Mr. Plowden would not have forgotten the time, place and source from which he obtained it. The fact of production of two other revolvers to Mr. Cornish is, I think, well established. But from what source did they come I am not prepared to accept without corroboration the statement of Rahman as to where these revolvers come from or the dates of their production. For instance, in the lower Court he said he was at Mourbhunj when Jogjiban was arrested, is, on the 3rd May. If that be so, he could not be in Midnapore on the 2nd May when he gays he obtained the revolver "Young America". Moreover, the second revolver is stated to have been shown to Ram Saday Mookerjee on the 26th January who made a sketch of it. Ram Saday has not been called as a witness in this case. Then with regard to the "Message to the Punjabis" which Rahman says lie stole from Satyendra, the document as printed in the paper-bock looks all right, but if one looks at the original it appears that it is a corrected punter s proof. When a bundle of the "Message to the Punjabis" is sent to Satyendra for distribution why should the corrected printer s proof be sent Moreover, the document apparently was for distribution amongst Punjabis.

[74] There can be but few Punjabis in Midnapore to whom to distribute this document. Rahman s statement how ho obtained this document is far from satisfactory. Similar remarks apply to the pamphlet "India Arise" and the book Bartman Rananiti.

[75] The next incident in Rahman s evidence is the alleged obtaining, from Satyendra, a letter to Calcutta so that Rahman might obtain a bomb.

[76] The letter is Exhibit 57 and was said to have been written by Satyendra in Abdur Rahman s pocket-book.

[77] According to Rahman he took his pocket-book to Calcutta, showed it to the addressee of the letter and returned with the letter still in his pocket-boob to Midnapore; Moulvi toro the letter out and took charge of it.

[78] Abdur Hah man was, however, unable to get a bomb, one of the reasons given why lie could not got, a bomb being a shortage of ice in Calcutta, This story is to my mind wholly untrue. A man of Satyendra s education would not write a letter to a friend in a note book of Rahman s nor would the friend having read the letter leave it in the note-book to be taken back by Rahman to Midnapore.

[79] No doubt, the Moulvi s travelling allowance bill shows that he, the Moulvi was in Calcutta from the 23rd to 26th February, but as I consider neither the Moulvi nor Rahman to be reliance witnesses and the probabilities of the story being untrue are so great that I reject it. I wholly disbelieve Rahman s story of the visit to the Annushilan Samity or to Base s circus on the maidun.

[80] The next document alleged to have been produced by Rahman is the bomb recipe, Exhibit IX. This document is alleged to have been dictated to Rahman while Jogjiban was out on bail daring the pendency of the charge against him under the Arms Act. Jogjiban was let out on bail twice during the pendency of that case, once on the 20th June and again on the 18th July, Rahman says that ho was asked to lend his house for the purpose of preparing bombs, but before agreeing to do so he consulted the Moulvi who in turn consulted Mr. Weston. Mr. Weston says he advised that Rahman should not do so but told Moulvi to go to Rahman to obtain the formula for making bombs.

[81] This story is again highly improbable. If Rahman s story be accepted then Jogjiban who had been released on bail on 13th July was so intent on making bombs that on the very next day he was trying to find a place to manufacture them.

[82] Moreover, I think that the Moulvi in his evidence in the Sessions Court clearly intended to fix the date of this document at about the 20th June when Jogjiban was out on bail for the first time.

[83] The endorsement now on the document giving its date as the 20th July with the impossible Hindu name of Pattopadhya is, I am satisfied, not; genuine. Mr. Hadril says ho cannot say if the pencil writing containing the date was on the document when he had it with him in the lower Court, There can be little doubt but that Mr. Dundas, D.I.G. of Police (Ranchi Range), took a correct view of this document when it was shown to him. He said, that appeared in the Juganter" and took no further notice of it. The probabilities are that the Moulvi would also know of this recipe having appeared in the Juganter more especially owing to his close touch with the officers in the C.I.D. I reject Exhibit IX as a genuine document prepared as mentioned by Abdur Rahman. Nor am I inclined to accept the statements of! Rahman and the Moulvi as to the advance by Rahman of Rs. 50 to Satyendra on a note of hand, their statements are highly improbable and are not supported by Mr. Cornish. Moreover, if this document had born in fact given by Satyendra it is quite contain that the authorities would never have allowed it to pass out of their possession without taking a photograph of it so as to establish the fact that Rahman had close relations with Satyendra. Then, on the 2nd of May evening according to Rahman, a dark man came to Satyendra s house speaking in mixed English and Bengali," said the factories had been raided in Calcutta and that all had been arrested except Khirode and Noresh. As Rahman according to his evidence in the Sessions Court was in Mourbhunj on the 3rd. May it is hardly possible that he could be in Midnapore on the 2nd May evening. Abdar Rahman appeared to mo to be a witness who had learnt his lesson before coming to Court. When being examined in-chief by Counsel for the defendants he gave his evidence with surprising alacrity and readiness, but when ho was cross-examined there were long pauses, hesitation and confusion. He is a witness on whose testimony, unless corroborated by good and independent testimony, I decline to place the slightest reliance. The only thing that one can say for certainty is that Rahman by reason of having been the instructor at the Ahra where Satyendra played was acquainted with Satyendra. When Satyendra disappears from the scene Rahman ceases to supply any information true or false except Exhibit IX which I have already found not to be a genuine document. Nor is he able to give any connecting link between Satyendra s conspiracy and the alleged conspiracy known as the Midnapore Bomb Conspiracy. This is more specially to be noticed as Jogjiban with whom Rahman says he was on terms of intimacy is alleged to have been a conspirator in both Satyendra s conspiracy and the Midnapore Bomb Conspiracy and was one of the accused in that case who were ultimately acquitted by the High Court on appeal.

[84] Neither do I accept the statement of Rahman as to Satyendra having told him that they had sent a bomb through the post to Mr. Kingsford.

[85] One other point as to the position in life of Rahman. That he is a man of no social position cannot be doubted. The statement of the Moulvi that Mahomedan gentlemen of position used to sit down with him whilst he read to them passages from a sacred book and afterwards gave his guests light refreshments, is, I am satisfied, absolutely untrue.

[86] Syed Zia Uddin who has been called as a witness for the defence in this case and is a Zemindar and Honorary Magistrate says quite clearly that the Mahomedan gentry would not sit down with Abdur Rahman. This evidence is, I am convinced, correct. Rahman appears to be the son of a butcher and was a petty trader in a very small way until he became an informer.

[87] One other matter before parting with Rahman It appears from Exhibit V (Extracts from the proof of Rahman in the Crown brief used at; the Sessions Court Trial) that Rahman was to be examined as to a statement that Santosh had made to him that arms were being collected at Purulia. Rahman said in his evidence here that he never made such a statement to any body. How then did this statement find its way into the proof in the Crown brief Rahman s statement for the Crown brief was recorded by the defendant, Lal Mohun, Nor do I think that the statements of Rahman as to his reasons for visiting Mourbhunj and Mahisadal satisfactory.

[88] Abdur Rahman now goes out of the story altogether.

[89] Mr. Weston for some time prior to this had been receiving anonymous threatening letters and letters as to arms being concealed. It is also a fact that Hem Chandra Das and some of the others charged in the Alipore Conspiracy came from Midnapore. Much stress has been placed on the fact that the zemindars samiti at Midnapore made a grant of Rs. 200 to Hem Chandra Das to assist him in studying silpa (mechanical arts) abroad.

[90] Doubtless, it is unfortunate that the zemindars have made this grant a8 events have proved. The mechanical arts which Hem Chandra was studying abroad have subsequently been proved to be the manufacture of explosives.

[91] But, on the other hand, we have the statement of Inspector Nagesh Chunder

Mookherjee, who was Inspector in charge of Midnapore from 1904 to 1908, that the zemindars samiti was not a seditious body. The Rs. 200 was forwarded to Hem Chandra through the Society for Promoting Scientific and Industrial Education amongst Indians.

[92] Moreover, this is not the only case in which a Midnapore gentleman has assisted financially a young man from the town who has gone abroad to advance his studies. For the evidence shows that Abinash Chandra Mitter, the plaintiff in one of the other suits, assisted Mr. Birendra Nath Da with a sum of Rs. 8,000 to enable him to proceed to Cambridge where Mr. De graduated amongst the Wranglers and subsequently passed into the Indian Civil Service and is now au Assistant Magistrate in the Central Provinces.

[93] Mr. De s house is alleged to he one of the place where the conspirators in the Midnapore Bomb Conspiracy Case used to meet and conspire together.

[94] On the 30th April 1908, Mrs. and Miss Kennedy were assassinated at Mozufferpore by Khudirara by means of a bomb. Following on this, on the 2nd May, a cypher telegram came to Mr. Cornish from the C.I.D., Calcutta, Mr. Cornish was unable to decipher the telegram and seut Moulvi up to see Mr. Plowden.

[95] It had been the intention of Mr. Plowden to have simultaneous searches made at Calcutta and Midnapore but owing to the failure of Mr. Cornish to decipher the telegram this intention was frustrated.

[96] On that day the Alipore gang were arrested in Calcutta and the garden at Manicktollah raided. The Moulvi returned to Midnapore late on the night of 2nd May or early on the morning of the 3rd May.

[97] On the 3rd May seven houses were searched in Midnapore. It is only material to give the names of two of the owners of the houses, namely, the plaintiff and Satyendra.

[98] The plaintiff refused to open his door to the Police and kept them waiting 15 or 20

minutes. Ultimately, the Police sent for Mr. Nelson, the Joint Magistrate, and the plaintiff permitted the Police to come in and make the search. The plaintiff strictly was entitled to refuse the Police admission into his house to search it as no warrant to search the plaintiff s house had been obtained.

[99] Nothing was found in the plaintiff s hduse on that occasion.

[100] Certain Bande Mataram flags and badges which were taken possession of by the Police at the search of 8th July are said by the plaintiff to have been in the house on 3rd May. The defendants deny this., Mr. Norton suggested that during the delay in opening the door these articles had been taken to the house of Jogendra Mullick. that suggestion had, however, to be abandoned as it is admitted that the Police when about to search a house first of all surrounded it to prevent anything from being taken from the house.

[101] At the same time, it is to be noted that the search of the plaintiff s house was under the order of the Criminal Investigation Department in Calcutta so that the plaintiff or his family must have been under some suspicion at the time. On the other hand, when you find a system of espionage so complete as has been spoken to by the defendant, Lal Mohun, in this case, viz., that every police officer has his spy, who is paid oat of the secret service fund, one must not assume that every information given to the Police is true or well founded.

[102] Pausing here for one moment, it seems to me very obvious that on the information then in the possession of the authorities Mr. Weston was bound to be very watchful over the district of which he had charge. It is not denied that at this time in fact there existed a criminal conspiracy at Midnapore which included Satyendra and Khudiram, both of whom were subsequently hanged. They had also the fact that on the searches of the 3rd of May were found Swadeshi documents (some of them violent), copies of the Bartman Rananiti and Mukte-kon-Pathe, swords, a bayonet and some other articles of a doubtful nature.

[103] About the middle of May 1908, one Rakhal Chunder Laha was appointed by the Moulvi with the consent of Mr. Weston to be a paid informer.

[104] There is a contest on the evidence as to whether the informer was a man of bad

character or not. It is admitted that there are two men each called Rakhal Chunder Laha, and that one of them is a man of bad character. In fact, the Moulvi says that the Rakhal Chunder Laha of bad character was "a desperate character." The evidence is clear that the informer was the man of bad character. Mr. Cornish says the Moulvi told him that the informer was a drunkard and a bad lot. Mr. Plowden says also that he was informed that the informer was a drunkard.

[105] In Rakhal s proof for the Crown brief for use in the Sessions Court (Exhibit S.S.) drawn up by Lal Mohun it is stated that Asadulla, Head Constable, took him to the house of the Moulvi. The reason Mr. Weston approved of the appointment of Rakhal as an informer he states was because he was a friend of Jamini Mullick s and also a relative of Baroda and Saroda Dutt. Whether Rakhal was at that time on terms of friendship with Jamini may be doubted for I find at page 14 of Exhibit S.S. the following statement: For this I had a quarrel with him (that is Jamini Mullick) and I gave up going there and did not mix with them."

[106] This is in accordance with the vernacular statement but Lal Mohun altered this in the translation as follows: "For this I had the quarrel with him and I gave up going to the Akra and discontinued my visits to him." Doubtless two pages further in Exhibit. S.S. the informer pays: "I frequently go to his house", but this hardly seems to be consistent with the previous statement. The informer wan, as I have said, appointed ancending to his own statement on the 20th May and on the 23rd May be is said to have commenced giving informations to the Moulvi. Up to the 31st May the Moulvi says that Rakhal used to come to his house and give his reports which the Moulvi wrote out, in his confidential diary. From the end of May, the Moulvi says, fearing that the fact of Ralkhal s coming to his house might become public he directed Rakhal to go in future to Asadulla, Head Constable, who would record his statement. Why Rakhal who is a man of education was not permitted to write his own reports has not been satisfactorily explained. The explanation that they were written by Asadulla because he could write more quickly the n Rakhal hardly seems to be satisfactory.

[107] When the Moulvi says that Rakhal was appointed because ho was known to be one of the loading "Extxemists" may be doubted, because in cho proof of Rakhal (Exhibit S.S.) prepared by Lal Mohan I find the following speech said to have been addressed by Moulvi or Asadulla to Rakhal on the 20th May at the Moulvi s house (Exhibit S.S., page 16) you work on the aide of the Government, it is a great sin to work against Government and it is an ill omen to the country. You mix with the Swadeshi agitators and let mo know their doings." This coupled with the statement on page 14 of Exhibit S.S. that after the quarrel with Jamini Mullick the informer "did not mix with them" raises doubts as to the Moulvi believing that the informer was a conspirator deep in the confidence of his fellow-conspirators. There is, moreover, a remarkable fact that the reports said to have been given by the informer open on the 23rd May with the reports of meetings of a fully organised conspiracy. One can hardly imagine that an officer with the experience of the Moulvi in criminal investigation would not have questioned the in-former as to the origin and growth of such a formidable conspiracy. Before the Committing Magistrate the informer stated that he never gave the reports at all, but they were drawn out, by the Police and signed by him at one and the same time. We have two records of the reports said to have been given by the informer, Rakhal.

[108] One is Exhibit 56 which is said to contain the reports made from day to day. These reports commence from the 1st June. The other document Exhibit of is said to have been written in October 1908 by Asadulla to assist the informer to give his evidence. It is said Exhibit G was dictated by Rakhal the informer to Asadulla from four notebooks in Rakhal s possession and that Asadulla added the marginal notes in red ink. Why, if Rakhal had four note books containing contemporaneous records of events and which he might use in Court to refresh his memory, Asadulla should draw him up a document which he could not souse is not apparent. Moreover, if Asadulla s story is correct, it would appear that Asadulla was so anxious to save the informer trouble that he signed Exhibit G for him, but the name he signed was "Ram Saran Laha" instead of Rakhal Chandra Laha. The words Ram Saran" have been attempted to be erased from Exhibit G but the words are still distinctly visible. Exhibit G was subsequently handed over to the defence by the informer and Exhibit 56 was disclosed by Mr. Sinha before the Committing Magistrate after the informal had failed the prosecution.

[109] I must now glance shortly--for space will not permit more the n a hurried glance--at the reports given by the informeir Rakhal.

[110] In order, however, to get an introduction to the reports it is necessary to go to the informer s proof drawn up by Lal Mohun (Exhibit S.S.).

[111] There we find, on the 23rd May, the first information given by Rakhal after his appointment as an informer on the 20th May.

[112] From Exhibit S.S. we find that on that day the informer went to the house of

Jamini Mullick. He states; I saw some strips of jute, sulphur and shots scattered

there". Burendra sail we shall prepare a bomb. The Police have arrested Sityendra,

Jogjibah and Sarat Day for nothing. If we can kill Lal Mohun, Moulvi and Mr. Weston, all obstacles will be removed." This is how the document reads in the original translation and the vernacular but Lal Mohuti in the translation has strunk out the last sentence and substituted: "We must do away with the Police and the Firinghees." "This evening Kissen Saha, Jotindra Nath Sen and Sachindra Mohun Sen will return from Calcutta after learning the art of manufacturing bombs. This night I shall consult, with them."

[113] Then on the same evening we are introduced to the first secret meeting held at the Basanta Malati Akrah.

[114] The report of this meeting appears in Exhibit G. The speaker at the meeting is said to have been the plaintiff s son Ashutosh:

There was a bench for sitting.

Ashutosh Das slapped his cheat and held forth Driving away the Firinghees and Police, &c.

116. In Rakhal s proof prepared by Lal Mohun, the vernacular and original translation read, "Ashutosh Das gave a stirring and inflimatory speech. Lal Mohun has altered this to, "Ashutosh Das jumped up, struck his chest with his hand and said."

117. Then we find, There was no mattress but a bench only." Then in Exhibit G we find a report dated the 27th May that on that day the informer was entrusted with a letter that Jamini Mulliak had received from his nephew, Krishna Prasad Dey, from Calcutta, Now this clearly establishes that the letter was dated not later the n the 27th May.

118. This letter is said to have been subsequently shown to the Moulvi on the 1st of June, when the Moulvi purported to take a copy of it. The copy shows that the alleged letter is dated the 28th May. Counsel for the defendants admit that there is a difficulty as Exhibit G purports to show that the letter was in the hands of the informer on 27th May and suggests that the date copied by the Moulvi is a mistake. This does not seem to me to be probable; the terms of the letter and the way if, is said to have been produced suggested far more strongly that the letter never in fact existed.

119. The terms of the letter are as follows:

Youngest maternal uncle, ray respectful salutation to you. Besides what has been

used in our work we have got 25 implements (bombs) for putting down the Europeans

in excess prepared in our factory. If you require them, send a man as soon as you get this letter. If you cannot come please send a man as soon as convenient. If you cannot send any man write to me and I shall hand over the implements for putting down Europeans to the man who will come and show me letter in your handwriting. Why the three or four men of your Basanta Malati Akrah who learnt from us the art of making instruments for putting down the Europeans are sitting down silently Can the enemy be submitted in this way We shall wait for your letter or man two or three days and shall go away then with the implements towards any line (some Railway line). What more shall I write It is useless to say further. 28th May 1908.

Krishna Prosad De,Jorasanko

120. One would have imagined that 25 bombs would have been sufficient for the

purpose of exterminating the Europeans in Midnapore. But in the report of the 4th of June (Exhibit 56) we find the men who are alleged to have been (aught bomb-making m Calcutta saying, "when we ourselves have come (here) let us have a house, 25 is a most insignificant number, we shall prepare 2,000 even. Kris to asked us to go within three or four days and that time has been over simply in showing the letter to the members. Probably by this time Kristo has gone out towards any line (some Railway line)."

121. This story about the 25 bombs and the proposed 2,000 bombs is, in my opinion, unbelievable. If this story were believed in, it is quite certain that an urgent communication would have been made to Mr. Plowden to endeavour to seize the 25 bombs which the Midnapore conspirators considered to be an insignificant number before Kristo Prosad De went towards some Railway line. An anarchist outrage on a Railway with 25 bombs at one time seems also to be novel.

122. To this the defendants say, we ascertained the address of Kristo Prosad De and found it contest. that, however, seems to me to come to nothing. Whoever gave the report was finally likely to be so foolish as to give a name and address which on the slightest inquiry would be found to be false.

123. To return to the informer s reports, having got the man from Calcutta who had

learned bomb making the next thing is a question of ways and means.

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4. The report of the 2nd June (Exhibit 56) is the first mention of proposed subscription. The gentleman who is said first to have offered to pay is Babu Satkari Pati Roy, a Sub-Deputy Magistrate.

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5. The defendants rely on this largely. It appears that on the 2nd Tune this gentleman was on leave and it was not impossible for him to be in Midnapore. It is quite possible I think that he was in Midnapore on that day. Having regard to the spies and informers that were in the employ of the Police I think it quite possible if Satkari Pati Roy was in Midnapore that a report to this effect was made to the Moulvi.

126. This gentleman still remains in Government service.

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27. On the 3rd June according to the report in Exhibit No. 56 Jamini Mullick goes to Mr. K.B. Dutt with reference to subscriptions for making bombs and a place for making them.

128. Mr. Dutt is said to have written to the Raja of Narajole for a place. Then on the 5th June (Exhibit 56) we find that Mr. K.B. Dutt had sanctioned Rs. 3,000 for manufacturing bombs.

129. Then on the 8th June (Exhibit 56) we find Jamini Mullick saying that K.B. Dutt, Barrister, sent Anrada Charan Pal. to the Raja of Narajole for the house, but as the Raja s house at Narajole has been searched the Raja has got frightened and docs not agree to give his house at Gope."

130. The Raja s house at Narajole at this time had not been searched nor is there any

reason to suppose that at the time he believed it was likely to be searched. Next, under the same date we find a list of subscriptions for making bombs. The list is headed by Mr. K.B. Dutt with Rs. 100, but in Exhibit S.S. (the informer s proof prepared by Lal Mohun) Lal Mohun has struck out Mr. Dutt s name. The 3rd subscription is Pleaders Bar Library Rs. 400 (money raised by selling takalainamas)--this, of course, means the Bar Association at Midnapore from funds of the Association, The learned Advocate-General has described the Midnapore Pleaders as unscrupulous. But even if that were so--a term I should hesitate to apply to gentlemen belonging to an honourable profession--it has not been suggested that they are fools.

131. that they were going to pay money out of their Association funds for matting bombs when each and every Pleader would be aware of the fact and the risk of detection would be great is not probable.

132. Then, on the 11th of June (Exhibit 56) there is said to have been a meeting at the house of the Raja of Mahisadvl. There were 45 or 46 persons present at that meat in. The name of the informer appeared originally as being present at that meeting, but his name has been struck out apparently at the time that the report was written. Against the informer s name the Moulvi has written "stet."

133. It is a fact not unworthy of notice that neither in Exhibit 56 nor in Exhibit G does the name of the Raja s Manager, Nalini Kanta Sen Gupta, appear as one of those who were at the meeting. But a far more significant fact is that the presence of the Raja of Mahisadal a Manager at the meeting of the 11th June is not given in the reports alleged to have been given by the informer until the 26th August, the very last report said to have been given by the informer. that report is in these terms:

Raja s Ammuktear Nalini Kanta Sen attended the secret meeting which was held in

the lodging of Mahisadal on 11th June 1803.

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4. Why such a report should have been given on the 26th August or why the informer s mind on that day was fixed on the meeting of the 11th June and the presence of the Raja s Manager at that meeting one cannot imagine.

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5. At the meeting there is singing and speech-making. Gosto Behari Chandra and Nikunja Maiti sang together to a harmonium accompaniment a Swadeshi song. Then a speech about bombs was delivered.

136. Meetings advocating the making of bombs one would presume are held in secret. Doubtless this meeting at the Raja of Mahisadal a house is described in the informer s reports (Exhibit 56) as "secret." But how far does a meeting at which there is singing, playing on the harmonium and speech making answer one s ideas of a secret meeting Besides, where were the Police and the spies of the Police officers that they did not hear of this meeting which must have been noticed by everybody in the neighbourhood Lal Mohun in his evidence here stated my spy generally kepfc me informed of the doings of the Swadeshi extremists from time to time." But as at many of these secret meetings their was music and a large gathering it seems remarkable that the spies were not able to detect the fact that the meetings were held.

137. Next, we come to the information of the 12th June (Exhibit 56).

138. Deb Das Karan is said to have reported that "he went to Mr. K.B. Dutt, Barrister, and has made him write and post a letter to Surendra Babu in (or of) Calcutta to send bombs.... The moderate and extremists have all united."

139. We find the same thing set out in Exhibit S.S. at page 17. that Surendra Babu of Calcutta would to any Bengali mean Babu Surendra Nath Banerjee is clear from the evidence. We also know that at the Conference in December 1907 Surendra Babu and Mr. Dutt were two of the small remnant that remained as "Moderates" and it is also in evidence that Surendra Babu and Mr. K.B. Dutt are on terms of intimate friendship. In Exhibit S.S. where the passage occurs I find the remark by Lal Mohun "omit." When the Monlvi was cross-examined as to this passage he said Babu Surendra Nath Banerjee is not Surendra Babu of Calcutta, but Surendra Babu of Barrackpore." But no person that has lived in Bengal would accept such a statement; although it is true that Surendra Babu does in fact live at Barrackpore but the hole of his public life has been associated with Calcutta.

140. Then much reliance has been placed on the statement in Exhibit O.O.O. "Suren Babu not known." The Moulvi s evidence is that subesquent inquiries were made by the Police in Calcutta and they found out that it was another man altogether. But curiously his name also happens to be Surendra Wath Banerjee.

142. Mr. Plowden did not appear to know anything about this inquiry at all.

143. I think there can belittle doubt Win the first instance at any rate it was intended to implicate Babu Surendra Nath Banerjee of the Bengali newspaper. Then we find under the same date "Deb Das Karan will settle (take on lease) the two-stoned house Paramananda Shaha to be let on here for manufacturing bombs. There will be four houses for manufacturing bombs. If any one gives information to the Police and i gets it detected the remaining three will serve the purpose." The next infromation to which it is necessary to call attention is the one reported on the 14th June (Exhibit 56). This gives the return of Santosh and his drilling of the boys who become "excited." Then on the 15th June there was ft meeting, said to have been intended to be held at the house, of the Maharaja of Mourbhunj but the meeting was postponed as Deb Das Karan could not attend owing to the rain.

142. On the 18th of June (Exhibit 56) the informer was informed that in accordance with the letter written by Mr. K.B. Dutt a bomb had been forwarded from Calcutta and it was being kept as a sample by "Deb Das. I very much doubt whether bombs are made from a sample. Moreover, the young men who had returned to Midnapore after learning the art of bomb-making at the Anushilan Samiti in Calcutta could hardly require a sample before seating to work. Then on the 17th June (Exhibit No. 56) we find on the day fixed Rash Behary Ghose will come from Calcutta to conduct the case against Satyendra Bose and others. He will not charge any fees for conducting the case." This, of course, is intended to implicate Dr. Rash Behary Chose, the eminent Vakil, with Stayendra by showing that he was on such terms with Satyendra that he would come and defend him without fees Every one in these Courts is aware that Dr. (3-hose does not practise in the Criminal Courts.

143. Next we come to the 18th June (Exhibit 56). This purports to relate the story of the first production of the bomb by Surendra Nath Mookerjee at the house of Kajabala, a prostitute, where in the presence of the informer, Nikunja Maiti and Jnanendra Sircar, the bomb was placed on the bed of the prostitute and supported by two pillows. This is said to have taken place some time after 10 o clock at night and it is evident both from Exhibit 56 and Exhibit Section and Exhibit G that the prostitute was present.

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4. The discussion that took place at the prostitute s house before the arrival of Surendra Nath with the bomb was "whether India might be free some time or other." The hour is somewhere after 10 o clock at night. I doubt whether the house of a woman of the town is either the place or a late hoar of the night the time where these young men would meet to discuss "whether India might, be free some time or other." On this incident, as pet out in Rakhal s proof as drawn up by Lal Mohun (Exhibit. S.S.) there is one matter worth noting.

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5. The Moulvi and Asadulla have both sworn in this suit that after the end of May all the reports of Rakhal, (he informer, which were drawn up by Asadulla were drawn up by him at his own house and that the informer on those occasions never come to the Moulvi s house. This the Moulvi says he did in order to avoid the public finding out the employment of Rakhal.

146. Now the account of the meeting; at Rajabala prsostitute s house is drawn up by Asadulla and signed, so is the report on the day previous. But look at Exhibit S.S. and see how far the Moulvi and Asadulla s story 18 supported by that statement. The informer there says as taken down by Lal Mohun: "At about 10 P.M. (on the 17th June) when returning home from the house of Monlvi Saheb, Deputy Superintendent, of Police, I saw Jnanendra Nath Sircar, brother of Jogendra Nath Sircar sitting at my door." The informer then proceeds to relate how h& went with Jnanedra to Rajabala s,

147. It is certainly very curious that if the Moulvi and Asadulla s evidence is true that the informer should say he was coming from the Moulvi s house and that this fact was to appear in the proof of the informer upon which he was to be examined by Counsel in Court.

148. Under the entry of the 18th June in Exhibit 56 there also purports to be a description of the wrecking of the train of the Lieutenant-Governor. This part of the alleged information is, however, omitted from Exhibit S.S. (Rakhal s proof). The report stages that the information as to the date of the journey of the Lieutenant Governor wag furnished by the older brother of Khagendra Nath Banerjee (one of the plaintiffs in the other suit) who was employed in the office of the Lieutenant-Governor.

149. It appears from Khagendra s evidence that none of his brothers is so employed. Between the 19th and 29th June there are no reports made by Asadulla as it is said he was ill. The Moulvi says that during this time he recorded Rakhal s information in his confidential diary. that diary has not been produced.

150. Exhibit G, however, does give reports of two meetings--one said to have been held at Kamini prostitute s on 23rd June and the other held at the house of Trailokya Nath Paul on the 28th June. At the first of these two meetings Satyendra Nath Boss was not only present but he was the speaker at the meeting and at the second meeting Jogjiban Ghose was present. Ah that time both Satyendra and Jogjiban were out of jail. But one naturally asks what was the first informer, Abdur Rahman, doing that, he did not find out about these two meetings He was then drawing his pay as a spy and according to his evidence he was on such terms with Satyendra and his party that they had supplied him with revolvers, given him a Utter to get a bomb in Calcutta, etc. Moreover, according to Rahman the first thing that Jogjiban did when he came out of jail on the 18th July was to try and get Rahman to lend his house for the preparation of bombs. Hence Exhibit IX.

151. On the 29th June (Exhibit 50) the informer reports the Jamini Mullick said to him, "S.P. Sinha, Barrister, was engaged by the Government in the case against Khudiram and Mr. Cotton, Barrister, was engaged on behalf of Khudi Ram and the S.P. Sinha wants to have Khudiram hanged while Cotton says if Khudiram be hanged there would be disturbance in India."

152. Mr. Sinha did not appear in the case against Khudiram and Mr. Cotton had left India some years before.

153. Then on the 30th June (Exhibit 56) the informer relates an account of a meeting at which the bomb was produced. In Exhibit S.S. (the informer s proof) the informer says nothing about a bomb being produced. It is suggested by Counsel on behalf of the defendants that the informer has made a mistake as to dates in this report and that he was only relating on hearsay what he had been told. I may pass over the report of the 1st. July stating that a wealthy zemindar, Iswar Chandra Chowdhury, had said, "Now our work lies in killing the Firinghees" and subscribing Rs. 20 towards the manufacture of bombs and the report of the 2nd July stating the t. Santosh drilled the boys of Swadeshi Samiti.

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4. Then we come to the report of the meeting of the 3rd July (Exhibit 5) said to have been held at the house of Upendra Nath Maiti, the leader of the Bar at Midnapore.

156. This meeting is called in Exhibit S.S. "a secret meeting." There were 37 people present at the meating. There was again singing1 to the accompaniment of a harmonium and speech making. Then it is reported, "A photo of Magistrate s house was shown." The defendant s Counsel rely much on that statement. But at that date Hem Chandra Das s album which contained a photograph of Mr. Weston s house had been exhibited in the Alipore ease and it is probable that the Police at Midnapore had been informed of this fact. The next; statement, said to have been made by Rash Behari Bose, is, my friend Hem Chandra Das has given me these photos and he has also taught mo to make revolvers. I cannot start a workshop for want of funds." The suggestion that in a few days Hem Chandra Das had taught Rash Bihary Bose to "make revolvers" is, of coarse, absurd. The suggestion by Mr. Norton that what the report means is that Hem Chandra Das had taught Rash Behari to clean up rusty revolvers does not seem portable as it is not likely that Rash Behari would want to open a workshop for that purpose.

157. At this meeting on the 3rd July at Upendra Maiti s house the bomb found at the plaintiff s house on the 8th July is alleged to have been produced. Therefore, the meeting is an essential link in the chain of reports. Now the name of Upendra Nath Maiti does not appear in the earlier reports nor does it appear in the later reports. I take the following remarks Mookerjee, J., on the hearing of the appeal in the bomb conspiracy c case: "But Upendra Maiti is apparently a man of excellent character and high standing at Midnapore and though originally placed before the Magistrate as one of the conspirators, the Advocate General, Mr. Singha, withdraw the charge against him. The has stated that in his belief Upendra Maiti has not done and said what was alleged against him--and before us the Advocate-General, Mr. Gregory, has conceded that the story of the meeting at Upendra Maiti s house must be discarded as false."

158. Mr. Gregory stated before mo that he made no such admission at all. All that ho says he did was to state that if he was asked what portion of his case ho would abandon he said he would abandon the case against he said he would abandon the case against Upendra Maiti. I think Mr. Gregory s recollection is at fault. The case against Upendra Maiti had been abandoned by Mr. Sinha months before. The learned Judges who heard the appeal are clear in their recollection that Mr. Gregory made this statement and are supported by their judgment as to which no exception was taken until the hearing of this present suit.

159. Of course, Mr. Gregory s statement cannot bind the defendants in this suit. But the Moulvi was present in Court whilst the appeal was being heard and Mr. Gregory s statement must have been made in his presence. If the meeting at Upendra Haiti s did not in fact take place it creates such a break in the chain of the reports as almost to destroy the a dory.

160. Then the defendants rely much on the statement in the report of the 5th July (Exhibit 56) as to the list of the witnesses in the case against Jogjiban under the Arms Act. But such list, if known to anybody, would be known to the Police. Then we came to the report of the 7th July (Exhibit 53) when the Raja of Narajole is said to have came to Jamini Mullick a to see the bomb. Now what was the Raja coming to see--to all outward appearances a ball wrapped up in jute.

161. This story does not seem very probable but when I turn to Exhibit G. which was drawn up by Asadulla, Head Constable, to enable the informer to got up his evidence, I find that the date of 7th July is written and then a blank space is lift so that the incidents of the 7th July may be written in subsequently. But this is not all. For when I go to the proof of the informer drown up by Lal Mohun (Exhibit S.S.) I find in the vernacular the report of the incidents of the 7th July as originally written were different to those contained in Exhibit 16 for the same date. But subsequently the vernacular of Exhibit S.S. has been considerably altered in a different ink to bring the story into line with the set out in Exhibit 56.

162. Before proceeding to consider the application for the search warrant of the plaintiff s house on the evening of the 7th July I will refer to the transfer of Ashutosh from Midna-pore to Mozufferpnr on the 3rd Jnly.

163. Ashutosh was a mail clerk in the Midnapore Post Office and was transferred on six hours notice to Mozofferpur by order communicated by telegram from the Post Master-General. That the transfer took place at the instance of Mr. Weston cannot be doubted. The only question is whether Mr. Weston took action on the representation of the Moulvi and Lal Mohun or on his own initiative.

16

4. Before the Sessions Judge Mr. Weston stated, "The Police in charge of this case suggested to me that Ashu should he transferred, I took action on that representation."

16

5. Mr. Cornish s evidence is to the same effect.

166. But here Mr. Weston goes back from the statement he made in the Sessions Court and says that ho asked Mr. Plowden to get Ashu transferred as letters sent by him got lost in the post.

167. If it was suspected that Ashutosh was stealing letters at Midrnapore it hardly seems a good reason to transfer him to another post office on six hours notice where he could do the same.

168. Moreover, the request for Ashntosh transfer coming through the Criminal. Investigation Department suggests that the reason given by Mr. Weston before the Sessions Court and Mr. Cornish in his evidence here is the true one.

169. On the 5th July, Noresh, Sub-Inspector, and Mohendra, Sub-Inspector, called at the plaintiff s house to inquire about Ashu. Noresh says the Moulvi told him to find out where Ashu was. Santosh says that Noresh came and inquired about Ashu as he said he wanted to diposit money in the Post Office Savings Bank and he wanted Ashu to tell him the rules.

170. Santosh gave the Police officers a chillum of tobacco which they sat, and smoked in the plaintiff s baitakhannoh within a few the plaintiff s feet of the bomb if the informer s story be correct.

171. I now come to the incidents on the night of the 7th July. On that night the Moulvi applied for and obtained from Mr. Nelson a warrant to search Santosh s house.

172. It is in dispute whether this application was made with the approval of Mr. Waston. The defendants in their written statements admit that it was so made, but on this suit being called on for hearing Mr. Norton applied for leave to amend the written statements by striking out this admission. The evidance, however, satisfies me that. Mr. Weston did know beforehand of the intention to apply for the warrant to search Santosh s house.

173. Mr. Cornish so stated in his evidence and on the 3rd March (Friday) the Moulvi in

cross-examination also so stated. But on the following Tuesday (7th March) he resiled

from his previous statement. In my opinion the evidence of the Moulvi given on the 3rd March on this point is the true version.

17

4. Then early on the morning of the 8th of July the search party consisting of constables and Military Police under the command of Mr. Brett, Assistant Superintendent of Police, started from the Sub Inspector s quarters. The party was broken up into two--one party under the command of Mr. Brett proceeding to the plaintiff s house, the other party in charge of Asadulla going to surround Hanumanjee s temple.

17

5. On arrival at the plaintiffs house the Military Police surrounded the house and then knocked at the door. After some little delay the door was opened. There has been a good deal of evidence as to how long this delay was. However, in my view of the evidence the delay lasted some minutes, quite long enough to enable Santosh, to get rid of the bomb if he knew of its existence and ho so desired. It is said that this could not be done because some of the Military Police were posted on the root of the plaintiff s house before the door-was opened. This evidence I do not accept. It is put forward in this Court for the first time. The Subadar, Mr. Wilson, who was in charge of the Military Police and who spoke as to the placing of the Military Police on the root was not a satisfactory witness. The door being opened the Police entered with their search witnesses. The Moulvi pointed out Santosh to Mr. Brett. Then the boy Bonomali who had bean sleeping: either on a khat or on the floor beside a khat in the baitakhannah was immediately placed under guard by the Moulvi.

176. The plaintiff said that before the search commenced he must have his own witnesses to the search. These were sent for and having arrived the search commenced. Santosh s room was searched first. Certain Bande Mataram badges and flags, lists of volunteers and some other papers were found there. Then the rest of the house was searched and lastly the baitakhannnh. While the baitahhannah was being searched neither Mr. Brett nor the plaintiff was present. Asadulla at that time came from the Hanumanjee s temple and was permitted to enter the plaintiff s house. Asadulla s evidence is that as they had been kept waiting so long at the Hanumanjee s temple (about two hours) he came to see why the search party wero tailing such a long time. He says that Mr. Wilson, the Subadar, searched him before he allowed him to enter the house. This I do not believe. He made the statement voluntarily and not in answer to any question and Mr. Wilson was never asked anything about this in his evidence. Almost immediately after the arrival of Asadulla the bomb was discovered. It is said to have been first seen by a constable Chuni Singh and then by Asadulla. Asadulla ran to Mr. Brett and informed him that something round has been found.

177. The constable, Chunni Singh, has not been called as a witness in this case.

178. The bomb was found amongst some loose door frames which were leaning against the wall; near the door frames was a palki.

179. Now the information of the informer the Asadulla says he recorded on the evening of the 7th July states tat "Santosh took the bomb to his baitakhannah the doors of which he shut up from inside." It is a remarkable fact, as I have already pointed out, the Exhibit G contains no account of the incident, of rite 7th July, only the date of the 7th July being written, blank space being left below to write in the incidents later.

180. In Exhibit LXXXIIIA, a statement of Rakhal recorded by Mr. Weston on the 22nd August 1903, Rakhal in relating the incidents of the 7th July says he saw Santosh get the bomb from near the palki end when Santosh was taking the bomb back from Jamini Mnllick s house the same day he said, "I followed to see where the bomb was put and the same night I gave information to the Police."

181. Santcsh when he saw the bomb said it was a benari ball (a ball used in some game) and then a langota (that is loin cloth worn when wrestling)--and Santosh wanted to pick up the bomb but he was prevented from doing so.

182. Then Santosh was arrested. Mr. Brett placed the bomb in his handkerchief and carried it so suspended.

183. Santosh after the excitement felt thirsty and wanted a drink of water and Mr. Brett took him into the inner apartments to his mother where he was given a drink of water and some refreshment as he had not broken his fast that morning. The old lady took hold of Mr. Brett s hand with which he was holding the bomb and raised the back of it a few times to her forehead. Unfortunately, Mr. Brett at that time did not understand the vernacular and cannot, therefore, say what the old lady said. Mr. Norton suggests that the old lady was performing an act of reverence towards Mr. Brett imploring him to save her son Santosh and that the old lady s story ought not to be accepted. The old lady s story is that she told Mr. Brett that her son was innocent and that she was willing to stake her life on his innocence and if permitted would strike the bomb against her forehead to show that the article was not a dangerous one.

1

8

4. I have no hesitation in accepting the mother s story as to this. Then Santosh was taken away by the Moulvi and Lal Mohun. They went to the Hanumanjee s temple where a short search was conducted by Lal Mohun, after which Santosh was sent to the thanah.

18

5. Then there is a conflict on the evidence as to whether the Moulvi returned to the plaintiff s home that day. I am of opinion that, he did and that the old lady s evidence on this point is substantially accurate. Her story is that in about half an hour after Santosh had been taken away the Moulvi returned and found her in tears. She said that her son was innocent and that this was the second time within a short period that her house had been searched by the Police. However, she said she was the aunt (mathi) of Dr. Rash Behary Ghose and she would lay all the facts of the case before him and SPO her son righted. She says that upon her mentioning the name of Dr. Rash Behary Ghose the Moulvi said the Dr. Ghose was an old claps friend of his own and, therefore, if she was Dr. Ghose s mathi she must be his mashi also. That all Santosh had got to do would be to follow the advice of trio Police, and all would be well--and the that would call the next morning and tell her how to act. The Moulvi denies this interview with the old lady altogether.

1

86. I accept not only the fact of the interview but also substantially the old lady s account of what lock place. Later, on the 8th of July, other house searches took place. Amongst, the houses so searched was that, of Jamini Mullick. The bomb was subsequently opened by Major (then Captain) Weinman, I.M.S., who found that the core consisted of a yellowish brownish powder mixed with shot and it was then taken by Mr. Brett and handed over in Calcutta to the Chemical Examiner. Major Weinman gave his certificates on the 9th July (Exhibit 36). On the 8th July Santosh was kept, at the thanoh haiut. Santosh s evidence is that there the Police tried to induce him to confess both on the night of the 8th July and the morning of the 9th July.

187. The mother s evidence is that on the morning of the 9th July the Moulvi saw her and latter she visited Santosh at the thanah.

1

88. It is paid that in consequence of this Santosh was put up before Mr. Nelson as a confessing prisoner it being hoped that the mother had induced him to confess.

1

89. Row what do we find when Santosh is pat up before Mr. Nelson, Joint Magistrate,

on the 9th July Mr. Nelson denies that Santosh was put up as a confessing prisoner, but what do the records of the Court show

1

90. First of all, Mr. Nelson had handed to him by a Police officer, the Court Inspector Rash Behari Sen, a form headed "Form for recording the confession of an accused person." He then proceeds to put to Santosh the question that is usually put by a Magistrate to a confessing prisoner:

Q.--Do you understand that I am a Magistrate and the any statement you may make may be used in evidence.

A.--Yea.

1

91. Santosh s statement so far from making a confession stated the that article found on the 8th July was not a bomb.

1

92. Mr. Nelson s order-sheet for 9th July is also is very instructive:

9-7-08. Santosh Das makos no confession.

1

93. Mr. Nelson s memory is, I am sure, at fault, in stating that Santosh was not produced before him on the 9th July as a confessing prisoner the documents seem to ma to be absolutely conclusive to the contrary. There is also the evidence of Tjackhi Naram Hatkir, Mr. Nelson s bench clerk, who has been called as a as a witness for the defence in this case. He states that on one occasion Santosh was produced before Mr. Nelson in Court as a confessing prisoner and that he was placed at the side of the Magistate s table to have his confession recorded. It is not suggested that this could be on any other occasion except the 9th July. The Court Inspector, Rash Behari Sen, though cited as a witness and present in the Court premises has not been called as a witness.

1

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4. But if Santosh was produced before the Court on the 9th July as a confessing prisoner, why was it supposed that on that day he would make a confession The only reasons that can be suggested are that after the visits of the Police to Santosh and his mother and the visit of the mother to the so a at the thanah it was hoped that Sentosh would make the desired confession.

1

9

5. On the 9th July, Mr. Nelson remanded. Santosh to jail till the 23rd of July.

196. Now it is alleged by the plaintiff that the bomb was placed in his house by the boy Bonomali at the instigation of the Moulvi.

197. Bonomali s story is that on a day just at the end of June a constable Kartick Singh came and took him to the house of the Moulvi where the Moulvi asked him if he was willing to enter his service and that Bonomalt expressed his willingness to do so and the Moulvi said he would send for him when he wanted him. Bonomali s story is that on the 7th July the Moulvi again sent for him and the Moulvi gave him the bomb. Bonomali says that the Mouly directed a constable to accompany him back to the plaintiff s house. He says ho was unable to place the bomb in Santosh a room as requested as Santosh was occupying him room, but he placed it in baitakhannah on a loose door frame that was resting against the wall and thon informed the constable who left. Next morning the search of the plaintiffs house toots place.

198. Bonomali says that after the search be went to his mother s house and subsequently was taken by a constable to Santragachi where the constable left him. There he met a boy who took him to a place called Podra where be entered into service of one Kally Kristo Bose. There he says he remained for a bruit three months, and then returned to Midnapore at the time of the pujas. The defendants deny the story altogether. They say that there is only one constable named Kartick Singh in Midnapore District and he was transferred from Midnapore Town to Ramjibanpore on the 24th May, 1908, and there he remained until long after the end of Tune. Toe boy Banomali identified the witness constable Kartick Singh as the man who took him to the Moulvi--so there is no doubt as to the constable the boy means, the Moulvi in his evidence before me at first tried to get out of the story told by Banomali by stating that from the 27th Juno he was away from Midnapore undergoing medical treatment in Calcutta that story has been conclusively demonstrated to be incorrect.

199. Is the evidence sufficient, therefore, to who that the constable Kartick was in Midnapore at the end of line The evidence shows that one constable Kartick was transferred to Ramjibanpore on the 24th May. But Mr. Dutt suggests this is a different Kartick.

200. The grounds ho puts this suggestion on are, first, why should Bonomali say that Kartick out of the GCO constables in Midnapore District took him to the Mould if Kartick was not in fact in Midnapore Next it appears from the District Order Book that a constable named Kartick Singh was censured for keeping a ptstol without license. This ought, it it refers to the Kartick Singh at Ramjibanpore, to have been communicated to the Police Station at Ramjibanpore for communication to Kartick ther. It appears from the evidence of the Police officers from Ramjibanpore that no such censure was communicated to them and, therefore, Mr. Dutt says that the censure does not relate to the Kartick Sinerh at Ramjibanpore but; to some other Kartick. Then, before the Committing Magistrate the Moulvi in cross-examination stated:

I have no constable by the name of Kartick. There was one of that name at the thanah. I don t remember if he was there in July. I had to have him removed to the thanah as he used to give out our secrets to the Extremists. I do not know if he was dismissed but he was reported against and sent away. I do not know where he is now, I do not know what Kartick s duties were. He was not working under me. I never sent Kartick constable to bring the bay to my house. He never brought the boy to my house. In the Sessions Court the defence summoned Kartick as a witness for the defence. The prosecution did not call Kartick, neither did the defence. The case was closed. The defence Counsel had finished their addresses when the unusual procedure was adopted by the Sessions Judge at the suggestion of the Crown Counsel of calling not only Kartick as a witness but also two other witnesses, Mon Mohan Roy and Mahomed Amir Khan, to corroborate him.

201. The Sessions Judge then allowed the defence to call a witness Gyanda Nandan Sen and also to recall a witness Kishoripati Rai.

202. Kishori deposed that the reason Kartick had been summoned as a witness was because Kishori had mat him at his (Kiahori s) uncles, an Honorary Magistrate, where Kartick told him be had taken the boy to the Moulvi and that after Kartick had been summoned as a witness for the defence at Session be went to see Kiahori. Kishori said Kartick told him then that as he was in Police service he could not speak against the Polios that Kartick on coming to. Midnapore after receiving his summons did go to see Kishori is not denied by Kartick in this Court although Kishori was not one of the Pleaders engaged for the defence.

203. The evidence seems to establish that Bonomali s story about going to Kali Bose s at Podra after the search is true. But, after all, the whole of the story as to whether the Moulvi had the bomb introduced into the plaintiff s house binges on the fact whether Kartick took the boy Bonomali to the Moulvi as alleged. Doubtless, as I have pointed out, there are some circumstances that may suggest, that the Kartick that was transferred to Ramjibanpore on the 24th May 1908, is not the Kartick referred to by Bonomali.

20

4. The witness Kartick has denied that he was transferred for misconduct as alleged by the Moulvi before the Committing Magistrate.

20

5. There was also the desire of the Moulvi in his evidence to show that he was absent from Midnapore at the time it was said that. Kartick took Bonomali to him but which had to be abandoned.

206. Then Mr. Dutt complained that none of the orders relating to the constable Kartick which were passed by Mr. Cornish were put to Mr. Cornish although he gave evidence before me, but that they have been proved by a subordinate officer who was not even stationed at Midnapore at the time the orders were passed.

207. The onus, however, of proving that Kartick took Bonomali to the Moulvi is on the plaintiff. There may be some matters of suspicion on the evidence. I am of opinion, however, that the plaintiff has not discharged the onus that is on him. As I have already said that the whole of the story of the bomb having been placed in the plaintiff s house at the instigation of the Moulvi rests on the plaintiff being able to prove that Kartick took Bonomali to the Moulvi. This the plaintiff has not proved. On the evidence before me, I am unable to pay who placed the bomb in the plaintiff s house but in my opinion Santosh did not.

208. I shall now deal very shortly with the rest of the reports said to have been given by the informer after the 8th of July.

209. Now, one would have thought, after the searches en the 8th of July, the conspirators would be somewhat careful as to their movements, for if the story related by Rakbal be true they most have "thought that the Police had got information as to the conspiracy. But one finds on the 10th July (Exhibit 56) there is a meeting of 31 persons at the house of Mr. Birendra Nath Dey of the Indian Civil Service.

210. Again Gosto Behary is there singing to the harmonium. The song he sings is "the song of the 3rd July." If the meeting said to have been held at Upendra Maiti s on the 3rd July did not take place, as both the Sessions Judge and the High Court appeal held, "the song of the 3rd July" is a somewhat serious difficulty. For if the song was not in fact sung on the 3rd of July it may well be argued that it was not sung on the 10th July.

211. Then speeches against the Firingees and in favour of bombs are delivered. All this takes place between 6 and 7 in the evening.

212. Again, on the 12th July (Exhibit 56) there is a report of a meeting at. the house of Jamini Mullick at which 42 persons were present.

213. Gosto Behari again sings a seditious song to the accompaniment of a harmonium. Then there are speeches against the Firingees and about, bombs All this takes place between 11 and 12 in the morning. One cannot help arkirg, what were the Police of Midnapore doing if they did not find any trace of these meetings held in the day time at the houses of leading citizens Moreover, with regard to Jamini Mullick at whose house this meeting is alleged to have been held it has to be remembered that his house bad been searched on the 8th of July. It was, therefore, highly improbable that he would hold a meeting at his house in broad daylight four days afterwards at which there would be singing and speech-making. There is also a significant fact with regard to Jamini Mullick that it is common ground that on the 9th July, the day after his house was searched, a meeting took place between him and the Moulvi at the latter s house. Jamini s account of the meeting at the Moulvi s is that the Moulvi sent for him and demanded Rs. 10,000 and said it was better to pay Rs. 10,000 now the n spend a lakh hereafter. The Moulvi s account is that Jamini came and asked him why his house had teen searched arid the Moulvi informed him he could not give him the reasons as it was by the Magistrate s order. During the cross-examination of Jamini by Mr. Garth he put it to him that he (Jamini) had told Dr. Bankim Chandra Ghose that the story about the Moulvi demanding Rs. 10,000 was untrue and that this interview between Dr. Bankim and Jamini was overheard by 8ub-Inspector Noresh, Both Dr. Baukim and Sub-Inspector Noresh have been examined here as witnesses on behalf of the defendants. Not a single question was put to either of them with regard to the alleged interview between Jamini and Dr. Bankim or of Noresh overhearing the conversation. I am inclined to think that Jaimini s account of the interview he had with the Moalvi is the true one. But whichever account one accepts of the interview it is highly improbable that Jamini would bold a large meeting at, his house on the 12th July. Then on the 13th of July (Exhibit 50) the informer reports that Jamini has sent a letter by post to his nephew at 4P.M., with envelope and paper on which was written Bande Mataram. This letter asked his nephew to keep leady "gunpowder" and other things necessary for preparation of bombs.

21

4. Space forbids me to do more the n to deal shortly with the rest-of the alleged reports of the informer. But the report of the 17th July cannot be passed over. The portion I refer to is as follows: "Surendra Mookerjae prepares bombs, etc. The one he made on the terrace of Hanumanjee s temple exploded when being wrapped up. Ho has thrown that off (away) and is preparing a new one. He will prepare it within 4 or 5 days," One may doubt whether Surendra, the temple having been searched on the 8th July, was likely to be making bombs on the terrace of the temple on the 17th July. But the story that the bomb exploded whilst Surendra was wrapping it up and, therefore, he throw away the remnant is so absurd that it is impossible to ask any one to believe it. The bomb that was subsequently found at the Ditto record-house is said to have been substituted by Surendra in place of the bomb that exploded.

21

5. On examination by the Chemical Examiner this bomb was proved to be of a highly dangerous character. If the bomb had exploded in Surendra s hand, there can be no doubt that not only would there be no part of the bomb left for him to throw away but that Surendra must have been terribly injured. But so, far from being injured we find Surendra industriously working away at, the new bomb, so much so that on the 19th July at 2 P.M. Surerdra showed the informer on the terrace of the temple the new bomb "half prepared." Then at a meeting at Saroda Dutt s on the 23rd July at 9-30 A.M. Surendra produces the new bomb which was ultimately found in the record-room of tie Dutts on the 31st July.

216. Between the 23rd July and the 30th July that bomb was going about, from place to place. On the 30th July (Exhibit 53) the informer reported: "Last night Govinda Mookerjee and Nokunja Maiti went to kill the Magistrate, the Deputy Superintendent, of Police and the Jamadar Asadulla with the bomb prepared by Surendra. But their work was unsuccessful. This morning at 7 or 8 A.M., Nikunja Maiti told me these words at the house of Nishi Goalini where Rajabala prostitute kept by Nikunja Maiti lives. I shall cause to be seized to-day the bomb prepared by Surendra Mookerjee which Baroda Dutt has kept."

217. This again seems to be improbable that Govinda and Nikunja were likely to find the Magistrate, the Moulvi and Asadulla together at night so as to be able to kill them with one bomb is improbable. It may be noticed for what it is worth that Exhibit Q which was prepared by Asadulla to assist the informer in giving his evidence states that it was Nikinja Maiti alone who went with the bomb to kill the Magistrate and the Moulvi. Exhibit S.S. the proof of Rakhal for the Grown brief prepared by Lal Mohun, states that Nikunja Maiti took the bomb with intent to kill the Magistrate only. This closes Rakhal s reports so far as we have the originals. The last words written by the informer at the end of his report of the 30th July are, "All these are false" (Everything that I have written down is false).

218. At what, time the informer wrote these words it is impossible to say. I must not, however, omit to notice the report of the 16th July (Exhibit 56) as a statement in this report is much relied on by Mr. Norton. The statement is that the informer has learnt from Jamini that Deb Dass Karan has kept the bomb in a stone-built room in a tank or excavation in the house of Parmananda Shaba." It appears that Mr. Macpherson discovered that on the land adjoining Parmanand s house there is a woll or tank hewn out of the rock. Mr. Norton says that this is strong corroboration of the informer s report. I do not agree in this view. On the 16th July 1908, it is improbable that there was no water in the well or tank. It is not likely that Deb Dass Karan would keep his bomb which was constantly being brought out in water. On the 31st July a search took place at the house of Baroda and Saroda Dutt resulting in the discovery of the bomb in a record-room at their premises. This was followed by the arrest of the second batch of prisoners including Surendra Natch Mookerjee. The record room in which the bomb was found was used for storing the old zemindari papers and was very rarely opened. It was in the possession of Madhn Sudan Dutt, the common manager of their joint estate. When the Police had broken open the lock of the door it was found that the floor was strewn with old remindari papers. The room was thick with dust. In fact so much so that Mr. Cornish states that although he went into the room he came out because the dust was so thick. Now what would strike any man going to search a room in this condition in the early morning of the 31st July for an which had not been there on the night of the 29th July I should have thought, obviously, to see if there were any marks in the dust to show if any one had been into the room recently or of any of the papers having been recently disturbed. But no such precautions were taken. Lal Mohan began to shovel the papers on the floor from one side of the room to the other with a "piece of timber." At a spot not far from a window, in which there was a broken bar, Lal Mohan came across some old books of account, one placed across the top of the others separated into two heaps and lifting the top both off with his hand ho discovered the bomb there. It certainly was fortunate for Lal Mohan that he ceased shovelling the papers just in time to and the bomb, otherwise the consequences must have been disastrous to him. One would certainly have thought when Lal Mohan came to the books, if the story of the finding of the bomb is true, that Lal Mohan would have noticed that these book had been recently disturbed and called Mr. Cornish s or some of the search witnesses attention to the fact. I must confess for my own part that I feel a doubt whether an experienced Police officer would set about a search of a room in which he expects he may find a bomb hidden by shovelling the papers on the of or from one side to the other with a piece of timber.

219. Mr. Cornish in his evidence in this Court stated: "when I saw the window with the broken bar it did strike me that the bomb had been put in from outside. The bomb was found near the window." The evidence is very suspicious, but I cannot say that it is such that I can find that the bomb was placed in the record room by the Police.

220. In the judgment on appeal in the criminal case I find the fallowing remarks: "The Advocate-General (that is Mr. Gregory) has stated before us that he placed no reliance on this bomb and has refrained from discussing its discovery. But if, as we hold, there is strong reason to doubt the genuineness of that discovery it must affect our attitude towards the evidence which relates to the bomb in Peary s house." Mr. Gregory now-stated that he made no such statement at all. All I can say, if that be so, is that it is exceedingly unfortunate that Counsel should allow this statement to go unchallenged for years.

221. The persons arrested on the 31st July were produced before Mr. Nelson on the 1st August and remanded by him until the 15th August.

222. It might have been expected that after what had happened on the 31st July the rest of the conspirators who had not been arrested would now at any rate for same little time remain quiet.

223. But on the 1st August, the informer reports again that "Surendra Bose, Sarat Chandra Patra, Jnannedra Sarkar went this day to Deb Puss to bring the bomb to kill the Magistrate." Doubtless the informer says they did not get it.

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4. In passing, I may mention that from the 1st August the original reports of the informer are not produced but only documents stated to be translations of the same. On the 2nd of August there is a report of a meeting in the drawing room of Biroda and Saroda who had been arrested on the 31st July. There was a discussion about bombs and picric acid was produced. On the 2nd August there is a long report about bombs.

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5. On the 4th and 5th August the informer again reports. On the 6th August the informer reports about a bomb which Rash Behari Bose kept in the cash box of Rhidoy Suri, a wine merchant, and which he saw the wine merchant give to Rash Behari who having got it tied it to his waist and rode away on his bicycle. On the 7th August there is another report. Also on the 8th August, the 9th August, the 10th August when Rash Behari Rose produces his bomb. Again, on the 11h, 13th and 16th, (he informer reports. On the 17th August the informer reports that Jamini Mullick produced from his pocket a bomb saying, "see I am always keeping it with me, saying this ho kept it back in his pocket and went away." On the 18th of August again there is a long report. On the 20th August there is a meeting about the establishment of a bomb factory and the preparation of bombs. On the 21st August there is another report. Also, on the 25th August, Jamini is reported to have said that he had sent to Calcutta for 40 bombs. And on the 26th August comes the last report, in some ways the most extraordinary. It says Raja s Ammuktear Nalini Kanto Sen attended the secret meeting which was held in the lodging of Mahisadal on 11th June 1903."

226. Why on the 26th August should the informer make such a report of his own motion does not appear.

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27. On the 26th August the last batch of warrants were applied (or and on the 28th August the third batch were arrested.

228. Before proceeding further, it will be convenient to consider what are the provisions that the Legislature in its wisdom has thought fit to impose as to information to the Police and investigation by the Police of alleged offences.

229. These are contained in Part V, Chapter XIV of the Code of Criminal Procedure. Section 15A enacts: Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a Police Station shall be reduced to writing by him or under his direction and be read over to the informant and every such information whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it and the substance thereof shall be entered is a book to be kept by such officer in such form as the Local Government may proscribe in that behalf."

230. The first, information is the basis upon which an investigation under Chapter JCIV of the Code of Criminal Procedure commences.

231. The careful and accurate record of the first information has always been considered as a matter of the highest importance by the Courts in India, the object of the first information being to show what was the manner in which the occurrence was related when the case was first started. It is really not necessary to quote any authority in support of the statement which is clearly deducible from the words of the Section itself.

232. If authority, however, were required it would be sufficient for me to rely on the

judgment of Prinsep and Henderson, JJ., in the case of Emperor v. Kampu Kuki 11 C.W.N. 554 at p. 556, 6 Cr. L.J. 86 "Such a practice," say the learned Judges, "is altogether contrary to Section 154 of the Code of Criminal Procedure. The first information if recorded as directed by Section 154 at the time that it is made is of considerable value at the trial because it shows on what materials the investigation commenced and what was the story then told. Any statement recorded as in this case several days in fact in that case it was four days after the commencement of the investigation and after there had been some development is not only no first information but has very little or no value at all as the original story because it can be made to fit into the case as then developed. No one would accept such a statement as reliable in its details after the lapse of time even if it were admissible in evidence." What do we find in this cast No first information was recorded between the 8ih of July and the 7th of September.

233. The Moulvi says this was not done as "we don t do that in conspiracy cases." He, however, admits that he is well aware of the provisions of the law set out in Section 154, In these circumstances, the explanation that "we don t do that in Conspiracy cases" hardly seem sufficient.

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4. Nor is there any reason to believe that the provisions of the law as to the recording of first information are set aside by the Police in a particular class of cases.

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5. The first information filed by the Moulvi on the 7th of September came into being in the following manner. On the 3rd of September the Inspector-General of Police (Mr. Morshead) accompanied by the Deputy Inspector General (Mr. Plowden) visited Midnapore. They noticed that no first information had been filed. So it is arranged that a first information should ho drown up in Calcutta. Accordingly, on Mr. Plowden s instructions, Rai Ram Saday Mookerjee Bahadur of the C.I.D. who according to Mr. Plowden has had great experience in drawing up first information of this nature drew up the first information, it then passed through Mr. Plowden s hands, then Mr. Morshead s and w is ultimately settled by an attorney, Mr. Withal that a document draw a up like this is a proper first information within Section 154 cannot be suggested for one moment.

236. What the law requires is not a first information drown up by a Police officer (however much experience he may have had in drawing up first information of this nature) and finally settled by an attorney bit the statement of the person himself giving the first information.

237. As the first information can be used in evidence under Sections 157 and 158 of the Evidence Act to corroborate or impeach the testimony of the person lodging the first information it will be seen how valueless the document becomes if the first information is drawn up by some person other the n the proper informant. One example of this from the first information filed on the 7th September must suffice though this is not the only one that might In drawn:

The following are some of the important places where the members of the said society used to meet and conspire together for the above purposes and other unlawful ob jects....

At the premises of the Raja of Mourbhunj Bakshibazar Midnapore.

238. There is nothing in the informer s reports giving the house of the Maharaja of Mourbhunj as a place where the conspirators used to meet and conspire although the informer does mention an intended meeting at the Maharaja s premises which was put oft. Moreover, the house of the Maharaja is not in Bakshibazar.

239. The Moulvi says this statement in the first information is a mistake. On the other hand, Mr. Plowden says the first information having been gone through so carefully by himself, Mr. Morshead and Mr. Withal with, the information which had been sent to the C.I.D. that the statement must have been taken from that information. Which of the two statements is correct it is impossible to slate. If the provisions of the law had been observed, such a state of things could never have happened. The first, information drawn up by the C.I.D. implicated 154 persons ranging as has been said from Raja to Beggar .

240. I can only assume that Mr. Withal the attorney settled the first information in ignorance of the provisions of the law.

241. The next Section of the Code of Criminal Procedure that it is necessary to refer to is Section 172:

(1) Every Police officer making an investigation under this Chapter shall day by day enter his proceeding in the investigation in a diary setting forth the time at which information reached him, the time at which he began and closed his investigation, the place or places visited by him and the statement of the circumstances ascertained through his investigation." The second sub-section of the same Section authorises any Criminal Court to send for the diary and to use the same to aid it in the inquiry or trial. The object of the special diaries under Section 172 (which are commonly called case diaries ) has been well expressed by Edge. C.J., in Qween-Empress v. Mannu 19 A. 390: "The early stages of investigation which follow on the commission of a crime must necessarily in the vast majority of cases be left to the Police and until the honesty, the capacity, the discretion and judgment of the Police can be thoroughly trusted it is necessary for the protection of the public against criminals, for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false or misleading, which was obtained from day to day by the Police officer who was investigating the ease and what were the lines of investigation upon which the Police-officer acted.

242. It is hardly necessary to state that the Moulvi and Lal Mohun both state that they are aware of the provisions of the law as to the keeping of "case diaries." Now what do I find in the present ease Between the 8th of July when Santosh was arrested and the 3rd of August, no ease diary" was opened. The defendant, Lal Mohun, who was the investigating officer stated that this was a mistake but this statement I cannot accept.

243. Therefore, during by far the most import-ant period of the investigation in the Bomb Conspiracy Case, the provisions of the law for enabling the Courts to check the method of the Police investigation have been deliberately disobeyed.

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4. I shall now consider the evidence that has been given on both sides as to the truth or untruth of the statements in the informer s reports. I shall first deal with the evidence given on behalf of the defendants. From the case diary, Exhibit V, it appears that on the 22nd August 1908, Lal Mohun held a consultation with his officers as to "a plan of action."

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5. On the 23rd August the plan of action resulted in the production of two witnesses and this was the first evidence obtained corroborating the reports.

246. The witnesses all speak to having overheard words or seen incidents which had been uttered or taken place long before.

247. They one and all Fay that Lal Mohun sent a constable to bring them to him. How

Lal Mohun was able to discover these witnesses may he matter for comment.

248. The first witness is Akhoy Kumar Pal. By way of introduction it may be stated that some time ago the widow of a pleader named Mookerji brought, a certain suit against him. In answer to this suit Akhoy produced a receipt which the Subordinate Judge held to be a forgery and directed Akhoy to he prosecuted for forgery and on appeal the District Judge has confirmed this order. At least two of the other witnesses for the defence in that suit, Kangali Ghorai and Amir Ali, gave evidence in the suit brought by the widow against Akhoy to prove that they saw the receipt executed. Akhoy in his evidence here stated, "the Government have now taken me under their protection." There would appear to be some foundation for this, for according to Akhoy s evidence the Government intended to settle certain lands with him but which lands after he had entered into possession he had to vacate because the lands belonged to a gentleman who defended the coolies in. the train wrecking case and not unnaturally this gentleman insisted upon his right to his own land.

249. It would also appear from Akhoy s evidence that he has been allowed to avail himself of the services of the Government Pleader. It if, however, only fair to the authorities to Bay that Mr. Macpherson, the Commissioner of the Burdwan Division, stated that he was wholly unaware that Akhoy was being allowed the services of the Government Pleader until he read it in the public press during the proceedings in this case. It does not appear that Akhoy could obtain no other pleader who would work for him so that the authorities had to allow him the services of the Government Pleader. For he said in evidence before me I don t mean to say that all the pleaders and muktears declined to work for me. I engaged two or three pleaders to file my written statement." Akhoy s statement was recorded by Lal Mohun under Section 161 of the Criminal Procedure Code on the 30th August. Akhoy cannot say how Lal Mohun came to send for him.

250. In the statement Akhoy said that he had seen the Raja of Narajole walking to rough the town in Bande Mataram processions. 8uch a statement as to the conduct of the Raja of Narajole it is impossible to believe. Before me he has stated that what he meant was that when the Raja came out the people got, excited and followed him and it looked like a procession.

251. It really is not worth while to go through the evidence of Akhoy, as I am satisfied he is a thoroughly disreputable and untruthful witness.

252. His statement, however, in his evidence here, "I did not say one single word to Lal Mohun of my own accord," even if it means that Akhoy only answered questions put to him by Lal Mohun tends to show that his statement was not recorded very satisfactorily. Akhoy in his evidence speaks to a meeting held five, six or seven days before the Mozufferpore outrage at the house of Deb Das Karan. Akhoy is positive that Santosh was present at that meeting. It is established without doubt that at that time Santosh was at Ranchi. There is only one other matter relating to Akhoy Pal before parting with his evidence that is with regard to Exhibit 61 which has been produced by Akhoy, as being, he alleges, a note sent by Mr. K.B. Dutt offering to pay him money if he would refrain from giving evidence. Akboy says he knows Mr. K.B. Dutt s handwriting as he has on one or two occasions leant over Mr. Dutt s chair when Mr. Dutt was engaged in Court and has seen Mr. Datt writing in English in the margin of his belief with a Bengali word every here and there. He also says that some years ago he saw a Municipal election. Counsel for the defendants stated that they were going to call Mr. Hardless, the Government expert in handwriting, to prove the writing in certain documents and had these documents sent to the Survey of India for the purpose of having them photographed preparatory to Mr. Hardless s evidence. Exhibit 61 was one of these documents. Mr. Hardless, however, has not been called by the defendants, so presumably have assisted the defendants. There is no doubt in my mind that Exhibit 61 is a forgery. But while saying this I am statisfied on the evidence that there is not either Mr. Weston or Mr. Hadrill had anything to do with it nor did they in any way suspect that it was not a genuine document.

253. The next witness on this branch of the case is Kangali Charan Ghorai. He was also sent, for by Lal Mohun in Bhadra. Lal Mohan asked him a meeting at Deb Das Karan s house and the witness answered. This witness gave evidence to prove the receipt in the suit brought against Akhoy Kumar Pal by the widow of the pleader.

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4. Kargali also appear to be engaged in litigation of a very doubtful nature. His evidence is that, "Moti Babu (i.e., the, officiating Government Pleader) was engaged by the Government to conduct my cases. The Government have been paying the cost of these two cases and the Police are locking after them."

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5. Doubtless after a night s rest he resiled to a considerable degree from this statement but I am not satisfied that the original statement is not correct.

256. Ore of these two cases referred to by the witness is a criminal prosecution

against him and another witness for the defendants, Radha Nath Rant, for defamation, the defamation charged being that these two men said that a woman died from the effects of abortion whereas apparently the body which was examined by a medical man showed that the woman died from the effect of a snakebite. The prosecution in that case alleges that, the witness made the defamatory statement in order to extort money. The Deputly Magistrate has framed charges against the witness and Radha Nath and there the matter for the present, rests. The witness also appears to have been concerned in other criminal cases. Lal Mohan recorded the statement of the witness under Section 161 on the the 13th October 19C8. A constable took him to Lal Mohun. How again did Lal Mohun manage to get hold of this witness The substance of the statement of this witness recorded under Section 16l was to speak to the meeting held at Deb Dag Karan s.

257. The witness is, I am satisfied, a thoroughly untruthful witness.

258. The next witness is Radha Nath Raut. He formerly worked with the last witness Kangali. He was convicted of some offence on the 20th August 1908, but having presented an appeal he was out on bail pending the hearing of his appeal when Lal Mohun sent a constable to being him on 31st August 1908. This witness according to his statement was discovered by Akhoy Pal.

259. The witness also appears to bi engaged in some litigation including the defamation prosecution in which he is jointly charged with the witness Kangali. He stated, "I know the Government is paying the cists of one suit (of ours)." Again, this witness resiled from this statement.

260. The witness speaks to the meeting said to have been held at Deb Das Karan s. In ray opinion there is no truth in his evidence.

261. The next witness on this branch is Lal Mahomed Khan. He is a teacher in the Lower Primary School at Midnapore. He also writes up the books of account of one Mulick, a baker.

262. His evidence is that two or three days after the Ultarath in 1908 when leaving the

baker s in the evening he determined to go and see his doctor as he was not feeling very well. When he was passing by the house of Mr. Birendra Nath Dey, I.C.S., he noticed two or three carnages there and people were going into the house. Whilst ho was listening to the golmal he saw Baba Abinash Chandra Mitter drive up in his carriage, Abinash said, "Hallo, master, what brings you hen" The witness said he told Abinash that he was on the way to the doctor. Abinash said, "now come with me", and the witness went into the house with Abinash and there he saw a young number of persons sealed. The witness says he also saw a young Babu singing songs to the accompaniment of a harmonium and that there were 30 or 40 persons present. The witness said he made an entry as to his attending this meeting in the books of the baker. This witness also says ho made his statement to Lal Mohun two or three months after the date of the meeting. How did Lal Mohun manage to find out this witness

263. That Abinash was likely to invite a person lie met casually in the street to come to a meeting where the making of bombs was going to be dismissed two days after Santosh s arrest can hardly be suggested.

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4. The next witness is Mohesh Chandra Kundu. He states that on the day previous to the Ultarnth he saw the Raja of Narajole at dusk leaving the house of Jamini Mullick. This witness states that Lal Mohun sent & Daroga for him in September 1908, who took him to Lal Mohun where his statement was recorded. How out of all the 30,000 inhabitants of Midnapore did Lal Mohun in September find out that this witness who does not live near Jamini Mullick s house happened to see the Raja of Narajole leaving it on the evening of the 7th July

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5. As a complement to the last witness we have the evidence of Rakhal Bera. He states that en the evening before the Ultaroth in 1908 he saw the Raja of Narajole arriving at Jamini Mullick s house in his carriage. At the back of the carriage where the syces generally stand were standing two men with swords. The witness eajs he salamed the Raja. 1

266. Again,this witness says that Lal Mohun sent a constable to bring him in Bnadra (September) and that Lal Mohun thou recorded his statement. The witness admits that during the time that the Raja of Nanajole was out on conditional bail, ho wrote and signed a document, that one Pitamber Roy (sic) had tutored him to make the statement to Lal Mohun. Pitamber is described in Lal Mohun s case diary as "an enemy of the Raja of Narajolee." The plaintiff s Counsel suggests that Pitamber has what are delicately culled relations with the Police.

267. Doubtless in his evidence here the witness has stated that he was compiled to give the statement in writing that ho had been tutored by Pitamber. But I am not prepared to accept that statement, of the witness.

268. Another witness on this branch of the case is Taju Kan.

269. He says that, a constable came and took him to Lal Mohun and Lal Mohun asked him if ho had seen anything in connection with the Balms.

270. He said that in the month of Jaista at about 2 or 3 in the afternoon as ho was going to his work and happened to be passing by the premises of the Mullick s, he saw Babus entering the Rasmanch. His curiosity was awakened as ho thought the Babus were going to have a jatra or a nautck at 2 or 3 in the afternoon. He went and peeped into the green room and saw a largo number of Babus there. Then one of them told him to quit the place and he left.

271. On another occasion the mother of this witness happened to be ill. She had a fever and a "pain under her ribs" so he started off to find Dr. Abhoy Knndu with two. battles in his hand--one to cure the faver and the other the pain under the ribs. He first went to the house of Dr. Abhoy but finding his shop closed he went to his residence. There a lady came out and told him the doctor had gone to the Mallicks . The witness hastened there and went near the thakur-dalan and called for Dr. Abhoy who came out to him. He saw a large number of Babus sitting there, also a young Babu playing on the harmonium and another young Babu singing.

272. Again, on another occasion whilst the witness was waiting for coolies to come to work, he saw Babus going into the house of Kamini prostitute. The witness says he call3 the mother of Kamini sister. He asked the mother what was going on and she told him. The witness recognised several of the people mentioned by the informer. the witness was not sent for by Lal Mohun until 2, 3 or 4 months after he had seen the first meeting.

273. The next witness is Ran lam Behary Haldar. He was sent for by Lal Mohun in September 1908. His story in that two days before the first Rath he went to Troylokya Nath Pal s house to see about some litigation in which a friend of his was engaged and as he passed the windows of Trojlokya s house he heard the following words, but he cannot say by whom they were spoken, "that money would have to be collected until after the disposal of the Arras Act ease, and that we should have to live with care up to that time." He also says he saw certain people whose names he had mentioned there.

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4. Troylckya, he says, told him to come next day, then ho left. This witness also appears to have had three criminal cases brought against him since 1906.

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5. The next witness is Nibaran Chunder Ghose, a Mohurir. This witness made a statement to Lal Mohan on the 25th September 1909.

276. The witness occupied a room in the house of Nishi Groalini where also lived Rajabala, prostitute, who was the mistress of Nikunja Haiti.

277. The witness states that on one night when the door of Rajabala s room was closed he heard from outside these words being spoken in her room, "The Firingees would have to be killed by means of bombs."

278. He states that "two" voices said this--the two voices were the voices of Nikanja Maiti and Gosto Behary Kundu.

279. The next witness is Saday Jana. He seems to have had some previous experience of litigation as he has on two occasions been fined for bringing vexatious complaints.

280. Raja Sri Narain Pal is his zemindar with whom he had litigation some time during the last four days of Assar. He says Sri Narain Pal sent for him. The witness said he could not go to the Raja that morning but would go in the evening; Ho went to the Raja s house in the evening but finding that the Raja had gone to the cutchery of the Raja of Mahisadal, he followed him there, and when after some difficulty ho arrived at the Mahisadal cutchery, he hoard the words "that unless the Police were beaten, assaulted or killed, nothing could be done," but could not say who said these words. He saw 30 or 40 people some of whose names he gave.

281. Gosto Behary Kundu was playing on the harmonium and Nikunja Maiti was singing a Swadeshi song. I am satisfied that there is not a word of truth in the evidence of any of these witnesses.

282. I shall interpose here the evidence of a witness Gajendra Nath Bhunia. The witness is the Mohurir of Mohendra Nath Das pleader.

282. His evidence is that late in the night of the 13th September, 1908, when he had gone to sleep at his master s promises, two constables--one of whom was Allabux--came and arrested him on the ground that he had a sword-stick with him.

283. Gajendra was taken to the thanah where he says he saw the defendant Lal Mohan and some Sub Inspectors. Previously ho says he had been approached by the Police to give false evidence in the Bomb case against Upeudra Nath Maiti but he had refused. Gajendra further says that Lal Mohun asked him at the thanah why he had not come and seen him although he repeatedly sent for him through Allabux. Gajendra also says that he suffered certain ill-treatment and the charge was altered to one of being drunk and disorderly. Shortly before 2 o clock in the morning Gajendra was bailed out by one of his friends Haripada Bhunia, a Mohurir in the Collectorate, who has been called as a witness for the defence in this suit. Upon his release Gajendra went immediately to the house of Bepin Bahary Ghosh, a pleader, who advised him to go and find some Magistrate who would hi able to speak to his being sober.

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4. Gajendra hastened to the house of Babu Sarat Chandra Roy, one of the Deputy Magistrates at Midnapore.

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5. The Deputy Magistrate (who has given evidence in this case for the defendants) having been aroused from sleep came out, when Gajendra fell at his feet and told him of his arrest on a false charge. The Deputy Magistrate agrees in the story so far and says that Gajendra was perfectly sober and that ho did not small of liquor at all. But Sarat Babu says Gijendra did not make any complaint against; the Police except that they had arrested him on a false charge. Haripada Bhunia, the Collectorate Mohurir, gave evidence to the same effect. Next morning when the case appeared on the file of the witness Sara1; Baba (the Deputy Magistrate), Gijendra at once filed a abatement Exhibit A10 stating that he had boon falsely arrested for refusing to give false evidence against Upendra Nath Maiti in the Bomb case.

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86. The case only remained on the file of Sarat Babu for a few minutes before he transferred it to Mr. Mirza another Magistrate for disposal, but it appears from the order of transfer that Sarat Baba had read Gajendra s statement. Gajendra said ho could not get any pleader to file his statement. This can be well imagined for the other witness for the defence Haripada Bhunia says that at that time not only was he himself in of being arrested but some of his neighbours were in such a state of fear that they were flying from their homes. Mr. Norton quite frankly admits that having regard to the statement of his own witnesses and the statement filed before the Deputy Magistrate by Gajendra there can be little doubt that Gajendra was arrested on a false charge and that, probably some of the inferior had been trying to got him to give false evidence against Upendra Nath Maiti, but he says that there is no reason to suppose that Lal Mohun was concerned in this.

287. But why should I accept every portion of Gajendra s statement except as to the presence of Lal Mohun at the thanah when he was arrested and taken there Besides Lal Mohun was the investigating officer and he was procuring either by himself or through his subordinates the evidence in support, of the case. It seems to me highly improbable that two Police constables would have approached Gajendra to give false evidence against Upendra Nath Maiti unless it was with the sanction of Lal Mohun.

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88. I accept Gajendra s evidence.

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89. The plaintiff, on the other hand, calls some thirty witnesses who state they did not do the things which Rakhal a alleged reports mention them as halving done.

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90. In my opinion the most important of these witnesses--not by reason of his wealth baton the ground of his respectability and position--is Babu Upenddra Nath Maiti, the leader the local Bar at Midnapore. He is one of the plaintiffs in the other suits. Ho has given evidence before me and I am satisfied that his evidence is true. He states that no meeting ever took place at his house on the 3rd July 1908 or on any other date. The reports of Rakhal give a meeting as being held that day in his house at which there was being and speech-making and the bomb found on the 8th of July at the plaintiff s house was produced.

291 The learned Sessions Judge in the course of his judgment said with regard to Babu Upendra Nath Maiti: "I may say at once that some of the persons incriminated in Exhibit 56 have not in my belief done and said what is alleged against them. Babu Upendra Nath Maiti is an instance."

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92. This view of Upendra Nath Maiti was also taken by the Appellate Bench on the hearing of the Criminal Appeal. In this view of Baba Upendra Nath Maiti I entirely concur. Now if one finds such an essential link in the story as the meeting of the 3rd July held at Upendra Babu s house to be untrue, I must confess it makes one look with some suspicion on the remainder of the report. For if the report of the meeting at Upendra Nath Maiti s on the 3rd of July be untrue why should one readily assume that the reports of the other meetings are true Upendra Nath Maiti was arrested on the bare statement in Exhibit 56 as to the meeting being held in his house on the 3rd July 1908.

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93. The next witness on whose evidence I place much reliance is Babu Radha Nath Pati. He is a pleader practising at Midnapore.

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4. Radha Nath Pati says he never attended any secret meeting or paid any subscription towards the manufacture of bombs. The reports give Babu Radha Nath Pati as having attended the meeting at Kamini prostitute s on the 23rd June. He says he was never in the house of a prostitute in his life. I have no doubt that the evidence of Radha Nath Pati is true. Another witness on this point is Abinash Chandra Mitter who is one of the plaintiffs in one of the other suits. Ha is a man of considerable wealth. Ho says he took part in the Swadeshi movement and started a Swadeshi shop. He, however, denies that he did any of the things that are reported against him in Exhibit 56. I accept his evidence on this point. Abinash was also one of the persons arrested. Then there is the evidence of Khagendra Banerjee, also another plaintiff, in one of the other suits. He denies attending any of the meetings which he is said to have attended.

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5. In the report (Exhibit 53) of the 18th Jane 1908 there purports to be a description of the attempt to wreck the train of the Lieutenant-Governor at Naraingarh with which I have already dealt.

296. There is no reason to think that Khagendra s brother was employed in the office of the Lieutenant-Governor.

297. Gopal Chandia Bannerjee is another plaintiff in one of the other suits. He was also arrested. He denies attending the meetings which he was alleged to have attended. His evidence, I think, is true.

298. Space forbids me to go through the other witnesses en behalf of the plaintiff on this point. It is sufficient for me to say generally that I am statisfied from their evidence that they did not do and say the things mentioned as done and said by them in Exhibit 56 and Exhibit G.

299. But while I say this it must not be taken that I agree with Mr. Datt in saying that all these witnesses were loyal and law-abiding subjects, I think some of them probably were not. There appears from the evidence circumstances of suspicion against some of them that they were neither loyal nor law-abiding. But the question is whether they were in the conspiracy related by Rakhal and lamsatisfied they were not. Take for instance the witness Piyari Lal Ghose. He seems to have been deeply in the Swadeshi and boycott movement. The house where the tuntsala opened by Satyendra was carried on belonged to him. He was also a relative of Satyendra s. But I have heard nothing in this ease to make me think that Piyari Lal Ghose was in the conspiracy said to have been reported by Rakhal.

300. Much has been said against the Raja of Narajole. I agree that there are circumstances which tend to show that some of the Raja s subscriptions were not above suspicion. But, again, there is nothing to connect those subscriptions with the alleged reports of the informer. I am satisfied that the Raja never went to Jamini Mullick s on the evening of the 7th July to see a bomb. This is the only meeting the Raja is alleged to have attended. The other reports against the Raja in the reports are also, I think, untrue.

301. The Raja says that he had to pay the Police the sum of Rs. 40,000 to extricate himself from the criminal case. The evidence shows clearly that the Raja did come to Calcutta and change Government Promissory-notes for Rs. 30,000 into ten-rupee notes. that the Raja intended to make a payment with those ten-rupee notes that could not be traced is, I think, clear. He says that the Rs. 30,000 was handed over to his maternal uncle Ashutosh Roy for payment to the Police. Ashutosh Roy is said to be on terms of friendship with the Police. that the Uaja intended to make a present of Rs. 30,000 to his maternal uncle in ten-rupee notes is not, I thick, likely. The plaintiff has, however, failed to call Ashutosh Roy and without Ashutosh Roy s evidence no Court could assume that the money readied the Police. Then the Rajaspdo as to Lal Mohan and Noresh coming to him after he was released and asking for this Rs. 30,000 to be paid, as they said there was going to be an inquiry, and they might lose their posts. Whilst I am not prepared to say that the Raja s story as to this visit is untrue, it is obviously insufficient to prove the receipt by the Police of the Raja s money. Indeed, the case of the defendants is that Ashutosh Roy has "pocketed," as Lal Mohun said, the bulk of the money himself, and there certainly appears to be some ground for this suggestion. Before parting with the Raja I must express my strongest disapproval of the language used by the Advocate-General with regard to him. Unfortunately, owing tot-he acoustic properties of the Court being so bad I did not myself catch the remarks of the Advocate-General at the time. The Assistant Registrar has, however, supplied me with a copy of a verbatim note of the words as taken by Dr. Suhrawardy, one of the Counsel for the plaintiff in the case.

302. The words are as follows: "There he (the Raja) sat, a disgusting sight, drink-sodden, more beast the n mar." No words more insulting to a witness could be imagined, that Dr. Suhrawardy s note is substantially correct there can be no doubt, for Mr. Norton informed me that he was instructed that the Advocate-General stated that the Raja was "more best the n man." If I had heard at the time the words used by the Advocate General I should instantly have checked him. The Raja, it must be remembered, is a nobleman amongst his own people, and, however dissipated or disloyal the Advocate-General may think him |to be, it does not entitle him to use such language.

303. The evidence of two of the plaintiff s witnesses has been relied on by the defence.

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4. The first is Rash Behari Bose. Doubtless there appears to be strong suspicion to connect him with that very improper portrait sent to Mr. Weston and which has been referred to as the stabbing portrait. But how does this connec him with the conspiracy said to have been related by Rakhal which maka.s no mention of this portrait The other witness is Moti Lal Mookerjee. The defendants rely on his earn because he did not surrender until the 17th October although a warrant had been issued against him on the 26th August. His evidence is that he was lying ill in Calcutta and was attended by Dr. Pushong and, therefore, did not surrender earlier. Then, the fact that his father-in-law s residence was No. 2, St. James Lane, Calcutta, has been relied on because this address is given on one of the exhibits in tills earlier. These facts are obviously wholly insufficient in any way to establish the truth of the story said to have been given by the informer.

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5. The evidence, therefore, as to the truth of the informer s reports stands as follow:

On the side of the defendants there is the evidence of the witnesses to whoso evidence I have already referred. There is also the deliberate attempt to got the witness Grajendra Bhunia to give false evidence. On the side of the plaintiff there is a body of some 30 witnesses, some of them men of irreproachable character, all of whom have stated that they did not do what was alleged against them in the alleged reports of the informer. These, coupled with the improbabilities of the reports said to have been given by the informer, lead me to the clear conclusion that the informations are not true.

306. Whether the informer actually gave these reports, or not it. is impossible to say that they were evolved by a drunkard like Rakhal, the informer, does not; appear probable. Nor is the account of the way is which the reports are said to have been by written as given by Moulvi and Asadulla satisfactory. In the absence of Rakhal it is impossible to way who wrote the reports.

307. Mr. Norton has stated that the plaintiff ought to have called Rakhal as a witness.

This obviously the plain HIT could not do. Moreover, it appears from some of the documents used at Mr. Macpherson s inquiry that the Police had Rakhal out of jail and examined him at that inquiry.

308. I must now go back and deal with the evidence relating to the period between the 8th July (when Santosh was arrested) and the 23rd July (when the plaintiff was arrested).

309. The reason set out in the written statements of the defendants Weston aid the Moulvi for the arrant of the plaintiff is "of there being reasonable grounds for the belief that the plaintiff has boon accessory to the commission of an offence under the Explosive Substances Ant, in connection with the said bomb which was found in his house." This is the case in the pleadings which the defendants set up in reply to the plaintiff s case and upon this they came to trial.

310. The application for the warrant to arrest Peari on the 23rd July 1908 (Exhibit R in No. 1) states that "the surrouding circumstances of the conspiracy give rise to a reasonable suspicion that the abused Santosh Dass s father Babu Peari Mohan Dai who...lives in the same home and megs with the accused is fully aware of the operations and tie possession of the bomb for an unlawful object."

311. Now the case set up in the pleadings of the defendants Weston and the Moulvi that the plaintiff was arrested as there were reasonable grounds for the belief the plaintiff had been accessory to the commission of an offence under the Explosive Substances Act in connection with the bomb found in his house has been wholly abandoned at the hearing and an attempt made to set up a wholly different defence to that raised in the pleadings.

312. The defendants are obviously not entitled to pursue such a course. The case the defendants are now endeavouring to set up is not that they arrested the plaintiff or caused him to be arrested on (he ground that they reasonably believed him to be accessory under Section G of the Explosive Substaticas Act, 1908, but that they arrested or caused him to be arrested under Section 5 of the same Act.

313. Section 5 of the Act is in the following terms: "Any person who knowingly has in his possession or under his control any explosive substance under such circumstances as to give rise to a reasonable suspicious that he does no; have it in his possession or under his control for a lawful object shall, unless be can show that ho bad it in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to 14 years.

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4. The learned Advocate-General stated that under this section whenever a bomb is found in a house every member of the family is liable to be arrested that, in my opinion, is far too broad a statement. In this country the joint family system prevails and the family frequently consists of a very large number of persons that every person in such family should, merely on the ground that a bomb is found in the joint family residence, be liable to be imprisoned and tried for an offence under the Explosive Substances Act is not, in my opinion, the law. Section 5 of the Explosive Substances Act only applies when a person has in his possession or under his control an explosive substance. Though doubtless when once it is established that a person has in his possession or under Ms control an explosive substance the Statute estate the onus of proving that be had it in his possession or control for an innocent purpose on such person, but still one has to come hack to the question, when an article is found in the residence of a joint Hindu family, in whose possession or under whose control it is. If the article is found in a portion of the house of which one member of the family has the exclusive use, then no difficulty arises, for such member must prima facie be held to be liable for anything that is found there. But if an article is found in a portion of the house of which all the members of the family have the use then prima facie the Karta (the managing head) of the family is responsible.

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5. But in either case it is only a presumption which may be rebutted and if the Police act on information, which they believe, showing that an article found in a house is in the exclusive possession of one member of the family and the article is found in a portion of the joint family residence of which nil the members of the family have the use, then I apprehend that the head of the family is not liable to arrest merely on the ground that the article is found in a portion of the house to which all the family can resort.

316. These seem to be the principles which are reasonably deducible from the decision of Queen Empress v. Sangam Lal 15 A. 129. In the present case there is not a word in the reports of the informer on which the defendants say they acted to suggest that the plaintiff was in possession of the bomb.

317. The story told by the defendants here is as follows: That Mr. Weston did not know of the application for the search warrant on the night of the 7th July and that when ho came to hear of the search on the 8th July and saw the other two defendants, he asked them why they had not arrested the plaintiff. They said it had not occurred to them to arrest the plaintiff as the information regarding the bomb implicated Santosh only. The Moulvi and Lal Mohuu then offered to return and arrest Piyari, but Mr. Weston said that was not necessary as the plaintiff would not ran away and be would wait until ho knew whether the article was really a bomb or only a hoax. that until the evening of the 20th July, when the Moulvi says he got the demi-official of the Chemical Examiner s report, which he says he gave to Mr. Weston that same night or on the next morning, Mr. Weston was not certain whether the bomb was a dangerous article or not. But that upon receiving the demi-official report to the Chemical Examiner Mr. Weston directed that the plaintiff should be arrested as the owner of the house. Then inquiring the date for which Santosh s case was fixed and being told it was fixed for the 23rd July Mr. Weston said it would hi sufficient if the plaintiff wore arrested on the 23rd July and accordingly the plaintiff was so arrested. The whole of this story rests upon one fact, namely that Mr. Weston did not know the nature of the article found at the plaintiff s house on the the 8th of July earlier the n the evening of the 20th July or the morning of the 21st July.

318. This time has to be fixed, as Mr. Weston admits that he had an interview with the plaintiff on the 19th July and also because the plaintiff s preserved a note (Exhibit h) which Mr. Weston wrote to him on the 20th July. If it is established that after the date when Mr. Weston was fully aware of the character of the article found in the plaintiff s house on the 8th July, Mr. Weston not only had an interview with the plaintiff but also wrote in him appointing another interview, then the story fold by the defendants that, as soon as the character for the article was ascertained Mr. Weston decided that the plaintiff should be arrested and after that date had no communications with the plaintiff, falls to the ground.

319. Now on the 9th July Major Weinman gave a certificate (Exhibit 36) as to the bomb found at the plaintiff s house on the 8th July.

320. The certificate states that "the core consisted of a yellowish brownish powder mixed with shot."

321. With regard to this Mr. Cornish states; "after I had soon Major Weinman s certificate I had no doubt as to the dangerous character of the article found in Santosh s house," and again, "on the 11th July the Moulvi and Lal Mohun had no doubt as to what the bomb contained nor do I know that Mr. Weston had any doubt.

322. Mr. Nelson states that, "I had no doubt after Major Weinman had examined the bomb as to its dangerous character."

323. But we have a much more extraordinary piece of evidence than the statements of Cornish and Mr. Nelson. On the 12th of July the Moulvi addressed to Mr. Weston a letter (Exhibit 70) asking for permission for himself and Lal Mohun to have an interview with Santosh in jail to question him about the bomb. This letter ends with the very significant sentence: In his statement before the Joint Magistrate in charge of the Sadar Sub-division he (i.e., Santosh) said it was a ball made of rags and intended for benati whereas on examination if has been found to contain certain explosives and shots." Mr. Weston slates that ho does not remember seeing this document. But that he saw it is clear from the endorsement by Mr. Weston in the margin: "Jailor please allow this, D. Weston. 11th July 1908." And why should Mr. Weston allow the two Police officers to question santosh in jail as to an article he thought might be a hoax

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4. Then, again, the evidence shows that Mr. of the Chemical Examiner s report earlier (sic) than the night of the 20th July or the morning of the 21st, July.

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5. The copy of the demi official report sent to Midnapore has written beneath it "Calcutta July 1908. Copy forwarded to W.H. Cornish, Esq., Superintendent of Police, Midnapore. (Signed) G.C. Denham, Special Assistant S.B. Bengal 17-7." The evidence shows that a letter posted in Calcutta in the evening reaches Midnapore carly next morning and that a letter posted in Calcutta in morning reaches Midnapore the same evening.

326. Mr. Cornish s evidence is that he showed the demi-official report of the Chemical Examiner to Mr. Weston immediately after he received it by post and then made it over to the Moulvi. The defendants s case is that Mr. Cornish gave the document to the Moulvi and that the Moulvi showed it to Mr. Weston I accept, Mr. Cornish s evidence on this point. Then, again, Mr. Cornish says: I must have received it (i.e., the demi-official report.) on the 18th July. The defendants case is that the document was not received in Midnapore until the 20th July.

326. In my opinion the demi-official report was in Midnapore without doubt on the 18th July. It is not likely that the document would be three days in the post between Colcutta and Midnapore nor that Mr. Denham having signed the copy of the demi-official report on the 17th July would not have it posted in the ordinary coarse. I, therefore, lied as a fact, that the demi-official report, of the Chemical Examiner was received by Mr. Cornish on the 18th July and immediately shown by him to Mr. Weston.

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27. I do not accept the date written by the Moulvi on Exhibit 79 as a genuine date.

328. On the evidence I come to the conclusion that defendants, after Major Weinman s report of the 9th July, had no doubt as to the dangerous character of the bomb although probably they did not know the nature of the explosive used. On this view of the evidence the defendants story as to why the plaintiff was not arrested falls to the ground. I am satisfied that this story put, forward by the defendants has no foundation in fact. It was suggested by Lal Mohun that Mr. Plowden had given orders for Peari s arrest. But this Mr. Plowden says is not so. Mr. Plowden did say that when he saw Lal Mohun he did make a remark, "just a casual remark," as to whether the owner of the house had been arrested. I think Mr. Plowden s memory is at fault with regard to this. He spoke to this remark long after it had taken place and it is possible that Mr. Plowden may have been asked about this incident and quite honestly after discussion have thought he remembered it.

329. The evidence shows clearly that Mr. Plowden in fact, had nothing to do with the arrest of the plaintiff.

330. I now turn to the plaintiff s story as to the reason why he was arrested.

331. On the 9th or 10th July Peari presented a petition to the Joint Magistrate (Mr. Nelson) praying that he might, be allowed to supply Santosh with some clothes in jail. Under the provisions of the Prisons Act and the Jail Code the plaintiff was entitled as of right to be granted this. Under-trial prisoners are not required to wear jail clothing. This application was rejected by Mr. Nelson.

332. Moti Lal Mukerjee, the Pleader, states he saw this petition being taken with a red slip on it towards Mr. Weston s house. Mr. Nelson states that on the 9th July I distinctly remember an application being made to me by Peari for leave to send clothes to Santosh in jail. I cannot remember what I did with it. I did not send it to Mr. Weston for orders. Mr. Weston says he does not remember this petition.

333. That Mr. Nelson rejected this petition is clear. But why Mr. Nelson could hardly he desirous of preventing Santosh from having proper clothing in jail. Mr. K.P. Dutt suggests that Mr. Nelson rejected this petition at the instance of Mr. Weston so that the plaintiff might go and present a petition to the higher authority, Mr. Weston. There is nothing on the evidence to show that that was so. The result, however, of the rejection by Mr. Nelson of that, petition was that Peari went to see Mr. Weston on the 11th July.

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4. It is unfortunate that the petition presented by Peari to Mr. Nelson, like many other document s in this case, is missing. It ought to have been with the record in the Joint Magistrate s Court.

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5. On the 11th July the plaintiff went to Mr. Weston s house. It is admitted by Mr. Weston that the plaintiff had an interview with him on that day. The plaintiff s evidence is that at that interview Mr. Weston did not say anything about the desirability of making Santosh confess. Mr. Weston says that the plaintiff asked his advice and that he advised that the beat thing for Santosh to do would be to confess, or rather make a clean breast of it, if he were guilty and penitent and perhaps the Court would take a. lenient view of Santosh s offence. Mr. Weston is not an inexperienced officer. He noted for some years as Chief Presidency Magistrate in Calcutta, and he must have known that, if Santosh followed his advice he could not hope to get a, light sentence. Moreover, Mr. Weston s evidence is that at this time he was only waiting for the Chemical Examiner s report to see if the plaintiff should be arrested. On the other hand, it cannot have escaped Mr. Weston s notice that, with regard to the conspiracy said to have been reported by Rakhal he had no evidence on which he could hope to convict the conspirators--nay more, on the evidence then in his possession it might even be difficult to convict Santosh. This statement of Mr. Weston s as to the advice he then gave the plaintiff does not, seem to fit in with his statement that he did not know the character of the article found at the plaintiff s house on the 8th July. For, if Mr. Weston then felt any doubt as to the dangerous character of the article or thought it might be a hoax, one would have expected him to advise the plaintiff to wait and see what the article proved to be. On the 11th July the plaintiff under an order obtained from Mr. Weston went to the jail to see Santosh, but he was not allowed to do so as the jail authorities said Santosh was not well.

336. After seeing the plaintiff on the 11th July Mr. Weston saw the Moulvi and Lal Mohun and gave them an order to visit Santosh. On the same day, the Moulvi and Lal Mohun went to the jail and had an interview with Santosh in his cell. They say they were with Santosh for about 15 minutes but Santosh said he was not well and told them that they should come the next morning. Santosh, on the other hand, says ho was perfectly well and that the Police were with him for over an hour. The jail gate register shows that the Police officers or rather the Moulvi was in the jail from 4.10 P.M. to 6 P.M.: Santosh s statement as to the time the Police were with him is far more probable than that of the defendants. Nor could Santosh s illness be of such a seriou character as to prevent him holding a conversation with the police officers, for the Police officers say they saw him at 8.45 next morning, that is only about 15 hours later, when Sontosh appears to have been perfactly well.

337. Santosh s account of what took place at that meeting on the 11th July wan that

the Moulvi and Lal Mohun told him that he ought to confess and that all that ho would have to any was that the Raja had gone to Jamini Mullick s the night before his (Santosh s) arrest and also he would have to speak to the meeting at Kamini s and at Saroda and Baroda Dutt s and to some other meetings. Santosh says that the Police officers also told him if he did not consent to make a confession his father would be arrested and that they would come again to-morrow by which time he had better make up his mind.

338. On the following morning, the 12th July, the Moulvi and Lal Mohun again saw Santosh in his cell. The interview took plane about 8.45 A.M. The Moulvi and Lal Mohun say that the Moulvi questioned Santosh about secret meetings, bur, he made no reply and all that he said was that be would make a statement to the Magistrate after consulting his father.

339. Santosh, on the other hand, says that the Police officers asked him to admit being present at the meetings held at Baroda and Saroda Dutt s, at Kamini s and at Upendra Nath Maiti s and also as to the Raja of Narajole going to Jamini Mullick s on the evening of the 7th July. Santosh also says that the Police officers showed him a warrant for the arrest of his father the plaintiff and that by threat and persuasion they made him write a letter to the Magistrate (Exhibit 69). The Moulvi and Lal Mohun say they never saw Exhibit 69) until they saw it in the Sessions Court.

340. The truth of Santosh s account of this interview must, therefore, largely depend on whether Santosh s story as to the writing of the letter, Exhibit 69, to Mr. Weston is true, Santosh says that the Moulvi produced from his pocket a piece of paper, and pen and ink having been sent for, he wrote the letter at the dictation of the Moulvi.

341. This letter Exhibit 69 is written on a piece of country made paper commonly called "Bally" paper.

342. The Jail Code provider that in case of convicted prisoners their correspondence shall be written upon Jail Miscellaneous Form No. 87. True it is that the Jail Code does not in words provide that the correspondence of under-trial prisoners shall be written on the same form, but Capt. Salisbury s and other evidence shows that when an under-trial prisoner expresses his desire to write a letter, he is given a Jail Miscellaneous Form No. 87.

343. The Jail Code, moreover, provides that all correspondence of both convicted and under-trial prisoners shall pass through the Jailor who shall certify that the contents of the letter are admissible under the rules and the Jailor shall then take the orders of the Superintendent of the Jail who may direct that the letter may be posted.

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4. Now what do we find with regard to this letter of the 12th July (Exhibit 69) First, it is not written on Jail Miscellaneous Form No. 87, nor does it been the usual endorsement of the Jailor that the contents are admissible under the rules, nor the order of the Superintendent that the letter may be posted. There is also the absence of the usual official covering latter from the Superintendent to the District Magistrate, "Jail Miscellaneous Form No. 79."

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5. In place of those we find a memorandum endorsed, without any date: "Forwarded to Magistrate of Midnapore for favour of disposal, S.C. Chakravarti, for Superintendent of Central Jail, Midnapore." The practice is, as Exhibit 68 shows, for the Super-intendent to forward such letters to the District Magistrate with a covering latter. Mr. Weston says he cannot say how Santosh s letter of the 12th July came into his possession. The Moulvi and Lal Mohan say that they had nothing to do with this letter. I accept Santosh s story supported as it, is by all the probabilities that this letter was written by him in his cell on paper supplied by, and at the dictation of, the Moulvi and that the Moulvi took the letter away with him. That being so, I in sub-stance accept Santosh s account as to what took place at the interview in his cell on the morning of the 12th of July. Early on the came morning, the 12th July, the plaintiff had presented to Mr. Weston a petition. (Exhibit (sic)) asking that he might be allowed to visit Santosh in .jail on that day and on every alternate day. Mr. Weston sent this petition to the Superintendent of the Jail for disposal and on the same day Major Weinman ordered that the plaintiff should be allowed interviews with Santosh, twice a week, on Wednesdays and Sundays.

346. The plaintiff s story is that; he and his son Ashutosh drove together to the jail on the morning of the l2th July, that the plaintiff on going to the jail office found the Moulvi and Lal Mohun there. The plaintiff also says that, on seeing Santosh, he told the plaintiff that the Moulvi and Lal Mohun had been trying to get him to implicate respectable people, and had made him write to the Magistrate. Ashutosh says that he did not go into the jail office but remained outside, and that when Santosh was being brought from the jail, their eyes met, and he shouted out to Santosh that he was convinced of his innocence and would see that, it was established. That thereupon the Moulvi and Lal Mohun having Police canes in their hands rushed at Ashutosh, but the plaintiff intervened and told Ashutosh to go and sit in the carriage. The Moulvi denies this story altogether but says that as the and Lal Mohun were driving away from the jail, they passed the plaintiff s carriage going to the jail.

347. Immediately they had passed the plaintiff s carriage the Moulvi suddenly recollected that he had forgotten to give a private message to the Assistant Jailor. The Moulvi thereupon stopped the carriage and got down and walked back to the jail. There he saw Ashutosh making signs to Santosh.

348. The Moulvi says he gently reproved Ashutosh, telling him it was very wrong of him to make signs to Santosh, Having given his message to the Assistant Jailor the Moulvi left the jail. He says he did not see the plaintiff. Lal Mohun says he did not see the plaintiff s carraige pass them on the way to the jail.

349. The story about the Moulvi, immediately he passed the plaintiff s carriage, suddenly remembering that he had a message to give to the Assistant Jailor and his return to the jail and the gentle reproof to Ashutosh appears to me to be highly improbable. I accept the plaintiff s account of what happened at the jail office on the 12th of July. To return now to Exhibit 69, the letter of Santosh of the 12th of July to Mr. Weston.

350. Mr. Weston now says that he has no recollection whatever as to how he received Exhibit 69. Before the Sessions Judge Mr. Weston said: "I received this (Exhibit 69). On it, I must have allowed Santosh s father to see him. I sent the petition on to Mr. Cornish."

351. Mr. Cornish s evidence here is: "An interview must have been arranged between the father and the son. The application was made to the Magistrate. The interview took place. The Magistrate arranged it."

352. Now if this be true, as I think it is, then the probabilities are that Mr. Weston sent for the plaintiff after receiving Exhibit 69. The plaintiff s story is that he received a chit from Mr. Weston on the 13th or 14th July asking him to come and see him. With regard to chits received by the plaintiff from Weston, the plaintiff s evidence is that "Mr. Weston sent me chits asking me to came and see him." "I received three. I lost two. Lal Mohun and Moulvi brought, them all. I got two chits between the 12th and 19th July." Having regard to Exhibit, 69 and Mr. Cornish s evidence the probabilities are strongly in favour of the plaintiff having received a chit from Mr. Weston on the 13th or 14th, July. The plaintiff says that the next interview he had with Mr. Weston was on the 14th July. All the probabilities are that this interview took place following on the receipt by Mr. Weston of Exhibit 69 (Santosh s letter of 12th July).

353. The plaintiff s account of what took place at that meeting is as follows:--He says he swore before God that his son was innocent, Mr. Weston said he should not be so nervous as the Police had made no reports against him (the plaintiff). But if he sought his son s safety, he should get his son to be an approver. The plaintiff fixes another interview with Mr. Weston on the 15th or 16th July, but as to this there is nothing to confirm him, I hold this interview not to be proved.

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4. The next interview that took place is common ground between the parties--that is the interview on the 19th July.

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5. Now, why should the plaintiff go and see Mr. Woston on the 19th July 1998 which was a Sunday It could not be that he wanted to see Mr. Weston in order to get an order for an interview with Santosh in jail on that day, for the plaintiff had already under Exhibit, 67 got an order to see Santosh on all Wednesdays and Sundays.

356. I can hardly think, in these circumstances, that the plaintiff went to Mr. Weston of his own accord. If he did not, then the probabilities are that Mr. Weston sent a chit for him to come and see him. If that be so then this would account for the third chit which the plaintiff said he received from Mr. Weston. Mr. Weston says he does not remember what took place at that interview except that the plaintiff wanted to see his son.

357. That does not seem satisfactory in view of the documentary evidence that we have, Exhibit H., which is a note sent by Mr. Weston to the plaintiff on the 20th July in the following terms:-- "[cannot see you as arranged at 7 p.m. on Tuesday. Come at 9 A.M. on Wednesday."

358. Now why did Mr. Weston arrange an interview with the plaintiff at 7 p.m. on Tuesday which was the 21st July, (sic)

359. The hour, Mr. Weston agrees, is unusual as he usually sees people on these matters in the early morning. He says that he thinks 7 P.M. in the evening was probably fixed so that the plaintiff might see him after he had seen Santosh.

360. There can be no doubt that this note (Exhibit H) shows that this proposed interview on the 21st July with Piyari was arranged by Mr. Weston so that he might see the plaintiff after he had had an interview with his son Santosh. But what did Mr. Weston want to see the plaintiff for after he had seen his son in jail

361. Mr. Weston says he remembers nothing further that passed at the interview on the 19th July except that the plaintiff, wanted to see his son.

362. The plaintiff s evidence is that Mr. Weston told him the only way to save his son was to make him an approver and that if he could not manage to get his son to make a statement he himself would be arrested.

363. Then we have the fact from Santosh s history ticket that the plaintiff did see Santosh in jail on the 2lst July which was a Tuesday. Mr. Weston must have authorised this visit. I have no doubt but that the plaintiff s account of this interview is correct.

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4. The next interview that the plaintiff alleges he had with Mr. Weston is on the 22nd of July.

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5. By this note of the 20th July (Exhibit H) Mr. Weston had appointed 9 A.M. on the 22nd of July as the time of meeting.

366. The plaintiff, however, says that he did not keep the appointment as he had failed to induce Santosh to agree to make a confession on the 21st, In the afternoon of the 22nd July, the plaintiff says, he mustered up courage to go and see Mr. Weston. The plaintiff says that Mr. Weston told him he would give him one more chance and that he gave him an order so that he might be allowed to see Santosh in jail. The plaintiff says that when he arrived at the jail, he saw the Superintendent who told him that he had come late and it was just about closing time. But as the plaintiff had brought an order from the Magistrate, he allowed the plaintiff to see Santosh. Santosh, however, the plaintiff says, did not agree to make a confession. The plaintiff says he returned to Mr. Weston and told him the result of his interview with Santosh and Mr. Weston said he would think over what should be done.

367. Next morning, Santosh was produced before Mr. Nelson and the plaintiff, either in the Court room or just outside it, was arrested. Between the 12rh July and 23rd July interviews in jail took place between the plaintiff and Santosh, as appears from the history ticket, on the 15th, 19th, 2lst, and 22nd July. There was also, according to the evidence of the plaintiff and Santosh, the second meeting in jail on the 22nd July, late in the afternoon.

368. In his retraction, dated the 7th September 1908, Santosh states: "My father while visiting me in jail in the afternoon previous to the day of his arrest (that is the 22nd July) told me, if I did not turn an approver, then the Magistrate would cause him to be arrested. Ho also showed me a slip that the Magistrate had given him."

369. The evidence also satisfies me that during the period between the 9th and 22nd of July, there were frequent visits by the Moulvi and Lal Mohun to the plaintiff s house and that, pressure was brought to bear on the plaintiff to induce him to get Santosh to confess and as time went on, this pressure passed from inducement and persuasion into threats.

370. The evidence on the part of the plaintiff is that some of those visits took place when Romesh Bose, the plan-maker, a Government servant, was present making: a plan of the plaintiff s house for the purpose of being used in the criminal case. The plan-maker has not been called by the defendants as a witness.

371. The story as to the Moulvi explaining the Explosive Substances Act to the plaintiff and his wife is, I think, true.

372. There is also substantial corroboration of the story told by the plaintiff and his witnesses in the statement of Ashutosh of the 18th August 1903 sent to the Government on the 27th August. Counsel for the defendants has suggested that this statement is the invention of the Bar at Midnapore. This suggestion seems to me to be quite impossible having regard to the date and other circumstances relating to the document. The document, was, I think, clearly a genuine statement of Ashutosh s. As against this evidence given on behalf of the plaintiff, there is the case set up by the written statements that the plaintiff was arrested as an accessory which has been wholly abandoned and the case attempted to be made at the trial that Mr. Weston determined to arrest the plaintiff as soon as he knew the dangerous character of the article found at the plaintiff s house, which has wholly failed.

373. I must now take, shortly, the events subsequent to the plaintiff s arrest on the 23rd July.

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4. The history ticket of the plaintiff states that on his entry to the jail "health bad old age"; across the corner of the history ticket I find written "to be strictly segregated." The evidence shows that the plaintiff was kept in solitary confinement during the whole time he was in jail. The plaintiff who was suffering from diabetes with accompanying ailments might surely have been let out on bail. His applications for bail, however, were opposed, but each of the defendants has denied that he had anything to do with the opposition to them.

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5. The treatment of the plaintiff in jail was in clear breach of the provisions of the law. The rules contained in what is known as the Jail Code are rules framed by the Local Government under the powers contained in the Prisons Act and subsequently sanctioned by the Governor-General in Council. Rules when so framed and approved have the same force as the Statute and it. is not open to any person to set aside the provisions of such rules.

376. Then who was responsible for the order on the plaintiff s history ticket "to be strictly segregated"

377. It must be either Mr. Weston, Mr. Nelson, or Major Weinman. All three of them deny any knowledge of this order. Accordingly, I am unable to decide by whose authority the plaintiff was kept in soli any confinement, a result which cannot be considered satisfactory. On the 29th of July, the Moulvi and Lal Mohun again visited Santosh in his cell.

378. Now what were the Police doing in the cell of Santosh again on the morning of the 29th of July

379. There can be little doubt, to my mind, that they had come to see the effect of the father s arrest on the son. The plaintiff was sent for and taken to Santosh s cell. There the Police appealed to the higher feelings of Santosh to save his father in his old age and to make a confession. But the plaintiff said that they must have some time to think the matter over.

380. Later in the day, the Police returned to Santosh s cell representing that, his father had consented to his making a statement and took him to Mr. Weston s house Mr. Weston says he examined Santosh and finding that he was willing to make a confession he sent for Mr. Nelson to record the confession. Mr. Weston admits that he was present at the recording of the confession and that he did put some questions to Santosh from papers he had in his possession and suggested other questions to Mr. Nelson.

381. This course cannot be justified at all. Mr. Weston obviously had no right to be present at the recording of the confession. Then much has been made of the preliminary questions put by Mr. Nelson to Santosh which are as follows:

"Do you know who I am"

"Yes."

"Any statement you make will he of your own free will. You are under no compulsion I understand." It has been much argued as to whether the words, "I understand", are an answer to the questions that go before or form part of the previous sentence. I think obviously they are not an answer. First, "I understand" is not an answer to the question "You are under no compulsion." Then in the whole of the confession I cannot find that Mr. Nelson has omitted to write a full stop in any other place where one ought to appear. It. seems to me clear that Mr. Nelson did not properly comply with the provisions of Section 16th of the Code of Criminal Procedure, Mr. Nelson says that he never heard the Police officers had been visiting. Santosh in jail. Probably, if he had known this he would have been more careful to comply with provisions of Section 16th. Now Santosh had come to confess how he had come into possession of a bomb. Instead of doing this, he commences to relate his history as from October or November, 1907.

Then we have the extraordinary coincidence that in Exhibit 56 the name of a man said to be present at some of the meetings alleged to have been held is given as Gosto Behary De, his real name is in fact Gosto Behary Chandra. The name of this man as given in Santosh s confession in two places was originally Gosto Bahary De, the word "De" being subsequently struck out and the word " Chandra" written in place thereof.

Moreover, in Exhibit G. this man s name is written "Gosto Behary Chandra (Dey)

382. Then, again, in the confession Santosh states that he attended a meeting on the 30th June. This is also the date given of this meeting in Exhibit 56. According to the defendants, subsequent inquiries show that this meeting was held on the 29th of June.

383. Then, again the first four names mentioned in the report of the 30th June in Exhibit 56 are given in exactly the same order as in the confession. These may be coincidences only, but they are, to say the least of it, peculiar.

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4. Then the following expressions. The Raja of Narajole gave Rs. 2 per month," "Satyendra Nath Bose gave nothing" "No bomb was produced," "I think I could identify him," "I can t remember the date." show clearly that portions of the confession which purport to have been given by Santosh in a narrative form must in fact have been given by him in answers to questions put to him.

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5. There can be no doubt to my mind that this confession was not recorded in the manner required by Section 364 of the Code of Criminal Procedure which requires every question put and every answer given to be recorded. But whilst I say this I altogether disbelieve the suggestion that Mr. Weston and Mr. Nelson or either of them put to Santosh questions which they knew to be untrue. The truth of the matter is, I think, that Mr. Weston thought that with a little judicious examination Santosh might make a full disclosure with regard to a considerable portion of the conspiracy. Mr. Weston did not, how-ever, bear in mind the visits of the Police to Santosh and the arrest of the plaintiff.

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86. Although I think Mr. Weston s conduct as to the confession of Santosh was improper and irregular, I can see no ground for suggesting that Mr. Weston put to Santosh questions and received answers which he knew to be untrue.

387. The 7th of August was the day fixed for the production of the plaintiff and Santosh

before Mr. Nelson. It is admitted that niether of them were so produced. This was in manifest breach of the provisions of Section 344 of the Code of Criminal Procedure. Mr. Norton admitted that if Mr. Weston knew of this it would be his duty as District Magistrate to call Mr. Nelson s attention to the fact. I find from a letter dated the 9th August (Exhibit 33) which Santosh wrote to Mr. Weston, the following:--"The date of appearance of the petitioner and his father was fixed on the 7th instant, but they were not brought to Court on that day. If the petitioner s old father be detained here any longer period, he may be deprived of his life."

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88. It would appear, therefore, that Mr. Weston did know that the plaintiff and his son were not being produced before Mr. Nelson in the manner provided by law.

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89. On the 5th of August Mr. Nelson passed an order remanding Surendra Nath Mukerjee to Police custody for seven days, but Surendra owing to ill-health could not, be handed over to the Police until the 7th August when he was handed over by the jail authorities to Lal Mohun.

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90. From the 7th August to the 12th August Surendra was kept at the Midnapur thanah and during such period he says he was tortured by the Police.

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91. Under Section 167 of the Criminal Procedure Code before a Magistrate remands an accused person to Police custody the accused must be produced before him, for the section says: "The Magistrate to whom an accused person is for warded."

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92. The section also requires that a Magistrate remanding an accused person to Police custody shall record his reasons for doing so. Mr. Nelson did not observe any of these provisions.

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93. Moreover, it is provided by the Bengal Police Code, Chap. XVI, pp. 374-388, that an application for remand to Police custody under Section 167 of the Code of Criminal Procedure must be made personally by the Chief Police Officer present to the Chief Magisterial Officer present, that is to say, at the head quarters of a district (as Midnapore is), by the Superintendent of Police to the District Magistrate, unless this is impossible owing to the absence of one of the officers concerned or through some other exceptional cause.

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4. Surendra s story is that between the 7th and 12th August he spent most of his time at the Sub-Inspector s quarters where he was ill-treated by Lal Mohun and other Police officers.

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5. Further, that on the 1lth August the ill-treatment was so severe that after it he was in a state of collapse and that Dr. Bankim Chunder Ghose was sent for by the Police to attend him.

396. It is common ground between the parties that on one occasion while Surendra was in Police custody he was in urgent need of medical aid. The Moulvi and Lal Mohun fixed this date as the 31st July, the day of Surendra s arrest, when they saw Surendra was suffering from an attack of simple fever and they sent a constable to find the Assistant Surgeon, but not finding him at home he brought Dr. Bankim Chunder Ghose. Dr. Bankim s fees are stated by Lal Mohun to have been paid out of the Secrete Service Fund and that a receipt which he gave for his fees was handed to Mr. Cornish. Mr. Cornish was not asked anything about this receipt.

397. Mr. Norton stated it was probable that Surendra did suffer ill-treatment of some sort from subordinate Police officers during this lengthened detention at the thanah in Police custody, but he denies that Surendra was ill-treated by Lal Mohun or the Moulvi. Surendra s statement that he was tortured whilst in Police custody must, of course, be taken with some reserve and can only be accepted if it is either corroborated or fits in with the probabilities of the case.

398. The first point to decide is, when did Dr. Bankim Chunder Ghose attend Surendra

399. Now Dr. Bankim Chunder Ghose has produced two of his books in support of his

statement, namely, a Prescription Book and a Dispensary Book. He had two other sets of books which he has not produced. In the Prescription Book which he has produced I find an entry of the 31st of July of a prescription for Surendra Nath Mukerjee. Counsel for the plaintiff suggested that as the 31st of July was the last day of the month there was a blank space where a prescription might be written in. This standing alone would obviously not be sufficient. But when one takes the entries of the next day the manner in which the book has been altered is apparent. In fact, Mr. Norton admits that the entry is a suspicious one. This entry on the 1st of August is for quinine pills which it is suggested were for Surendra on the morning of the 1st of August.

400. But the merest glanes at the name at the heading of the prescription shows that it was originally "For Upendro," then that a capital "S" has been squesed in between the "for" and Upendro." Then to the "p" in Upeudro has been added a slanting stroke converting it into a capital "R", but with half of the "R" below the line. Dr. Bankim Chunder Ghose admits that the stroke which converts the "p" into an "r" in Upendro is written in different ink to the rest of the latter. The net result of the alterations to the word "Upendro" is that it is altered into "Surendra," the first three letters "Sur" being all capitals, half of the "r" being below the line.

401. Then the word Upendro so altered is penned through and Dr. Bankim writes above it Surendra Nath Mukerjee A.M.B. casa (accused Midnapore Bomb Case).

402. Then I come to the Dispensary Book. Now if you take the entries in the Dispensary Book for the 30th and 31st July and 1st August as originally written, that is omitting the entry of the alleged prescription for Surendra on 31st July and subject to the alteration of the name of the person for whom the quinine pills were prescribed on the 1st of August, the Book before the alterations were made was in correct order. On the pages which contain the entries for 31st July I find the number of every prescription has been altered, the alleged prescription for Surendra being written last on the page.

403. If one tarns back to the page on which the prescriptions for the 30th of July are

entered one finds that the last prescription entered on the 30th of July bears the same

number as the altered number of the first prescription of the 31st July.

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4. Then on the page which contains the entries for the prescriptions of the 1st of August, I find the name of the person for whom the quinine pills were prescribed is altered.

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5. But a portion of the first letter of the name that was originally written is visible and the Court; Interpreter informs me that the portion visible appears to be the tail of a capital Bengali "U" and there can be little doubt that the word written originally was Upendro."

406. Why should these entries be altered in this manner nuless it is to support the case that Dr. Bankim attended Surendra on the 31st July It seems to me quite clear that Dr. Bankim s books have been altered for this purpose.

407. When once one comes to the conclusion that Dr. Bankim attended Surendra on some day other than the 31st July, one gets rid of the story set up by the Moulvi and Lal Mohun.

408. Then it has been suggested that even if Dr. Bankim did not attend Surendra on the 31st of .July yet he may have attended him on some other date for fever. That suggestion it is not possible to accept, the defendants having put forward a definite case that Surendra was treated by Dr. Bankim for fever on the 31st July. Accordingly I am of opinion that Surendra was attended by. Dr. Bankim on the 11th August.

409. Now, why should Dr. Bankim be sent to treat Surendra. on the 111th August Surendra s story in that since he had been in Police custody from the 7th August, he had been subjected to ill-treatment to try and induce him to cofese, and on that day Lal Mohun had so ill usad him that he lost control over himself and having been compelled to evacuate on the floor he lay in a state of collapse, that Dr. Bankim was hurriedly sent for to come and attend him and that a mehter was sent for from the Municipal Office to clean the place and a blanket that, had got soiled.

410. I have looked at certain works on Medical Jurisprudence in order to see if a kick in the stomach would produce the effect that Surendra has stated it produced on him. Apparently the shock to the nerve centre might produce the effect which Surendra has stated. But what has weighed with me more than this is that the defendants called two medical men, Major Weinman and Dr. Bankim Chunder Ghose, as witnesses. No questions were put to them that assuming that Surendra was kicked in the manner he has stated the kick could not have had the effects Surendra has related.

411. Why then are the Moulvi and Lal Mohun so anxious to fix the date of Dr. Bankim s attendance on Surendra as the 31st July which is clearly not the true date

412. It seems to me there can be no other reason for this except that on the date that Dr. Bankim did attend Surendra, something had happened to Surendra which they are anxious to conceal. This being so, I think, one can reasonably accept the evidence of Surendra corroborated by Bholauath, Ramtullah and Sanyasi as to the main incidents as to what happened on that day.

413. It is only fair to Mr. Weston, however, to state that I am satisfied that he knew no-thing about the treatment of Surendra at the thanah.

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4. On the 12th August, Lal Mohun started for Salboni taking Surendra with him. He returned to Midnapore on the 13th August, the train arriving at Midnapore Railway-Station at 1.30.

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5. According to Ashutosh s evidence, from the 24th July he was having frequent inter-views with the Moulvi. He also from time to time saw Mr. Weston. It is not, however, necessary to go into this portion of the evidence, although some interviews are admitted, or as to whether during this period attempts were being made to got Ashutosh to be a witness in the Conspiracy case, It will be sufficient to start with the incidents of the 13th of August. But before considering the incidents of the 13th August I ought to state that Mr. Weston saw the plaintiff in jail on the 5th. August, Mr. Weston says the only complaint the plaintiff made to him was that, the jail officials had taken away his bed-stead. Mr. Weston says that upon inquiring of the jail officials, why this had been done, he was told that they were afraid that the plaintiff would commit suicide by standing the bed-stead on its end and then hanging himself to it. It does not seem to have occurred to Mr. Weston to question the jail officials as to what sort of treatment the plain till: had been subjected to that they should be afraid ho would commit suicide. Mr. Weston ordered the plaintiff s bed-stead to be restored.

416. Then, again, on the 11th August, it is agreed on both sides that Santosh in answer to his letter of the 9th August (Exhibit 68) had a further interview with Mr. Weston. Mr. Weston says that Santosh at that interview wished to add two further names to his confession. Santosh says he sought the interview in order to ask Mr. Weston to release this father. Exhibit 68 shows clearly that this was the thought uppermost in Santosh s mind. Then we come to the incidents on the 13th August. It is agreed that on the afternoon of that day both Santosh and Ashutosh saw Mr. Weston. The story of the defendants is as follow:

417. That in the afternoon--the Moulvi fixes the time about 8 o clock--whilst the Moulvi and Lal Mohun were driving with Santosh from the jail to tho thanah, having taken him into Police custody for three days, Ashutosh ran up to the carriage when they were near to Mr. Weston s compound and asked to be allowed to speak to his brother Santosh. The Police officers said they could not allow this without the constant of the Magistrate. Thereupon they drove into Mr. Weston s compound and they all saw Mr. Weston who said Ashutosh might have an interviw with Santosh at the tkanah. Mr. Weston further said that if Ashutosh wished to make a statement the. Police officers might record it, but he warned Ashutosh that he could not expect a pardon if he made a statement.

418. The improbability of the Police officers disturbing Mr. Weston in the afternoon to ask if Santosh and Ashutosh might have an interview may be left out of account for this story is conclusively proved to be untrue. Lal Mohun returned to Midnapore with Surendra on the 13th August by the train reaching Midnapoeo at 1.30 The jail gate-register shows that Santosh on tho 13th August left the jail at 1.

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5. At Midnapore the evidence shows that they keep standard time, it was, therefore, impossible for Lal Mohun to be driving with Santosh to Mr. Weston s house as stated.

419. Ashutosh s evidence, on the other hand, is as follows:

That he had been ordered to be at Mr. Weston s house on the morning of the 13th

August and that he went there as directed, but was told that Mr. Weston was sleeping

and that he was to come back later. That he in accordance with this order went back later to Mr. Western s and after a time the Moulvi arrived in a carriage bringing Santosh with him but that Lal Mohun was not there. That they went in and saw Mr. Weston and that Lal Mohuu arrived subsequently. That it was then decided to take Santosh into Police custody for three days and to confront Santosh, Ashutosh and Surendra together.

420. Santosh s jail history ticket supports this view. There are two entries on the history ticket for the 13th August, the first: "Went to see the Magistrate," the second: "Made over to Police custody for three days."

421. Surendra, in the meantime, who had been left by Lal Mohun at the Police office had been sent back to jail. He was brought back from jail to the thanah. On the 13th and 14th August, Santosh, Ashutosh and Surendra and Jotindra Sen (Ashutosh s nephew) were tutored at the thanah and Suren da porsuaded to make a confession.

422. On the morning of the 15th August Ashutosh and Surendra were taken to Mr. Weston s house. There is a conflict on the evidence as to whether Mr. Weston saw Ashutosh on the morning of the 15th August. Mr. Weston says he did not. All that happened he say a was that he was shown a statement of Ashutosh s which he thought concealed more than it stated and, therefore, he told Lal Mohun to tell Ashutosh to go away. Lal Mohun says that Ashutosh was standing near a Mahomedan shrine in Mr. Weston s compound about 80 or 100 yards from the house and he went and gave Mr. Weston s message. Then Ashutosh left the premises. Ashutosh s story, on the other hand, is that he saw Mr. Weston and he asked Mr. Weston if his father would be released if he made the statement, Mr. Weston stated, that did not rest with him, thereupon Ashutosh said he declined to make the statement until he had seen his father. Mr. Weston gave him an order to see his father and he left Mr. Weston s house. The original of Ashutosh s statement that he made to Lal Mohun is missing. The document purporting to be a copy, Ashutosh says, is not in fact a copy. Whether that be so or not it is impossible to say. It is certainly a most extraordinary fact that so many original documents are not forthcoming.

423. Ashutosh s evidence as to what happened at Mr. Weston s house on the morning of the 15th August is, I think, correct and is substantially corroborated by documentary evidence.

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4. First, there is Lal Mohun s case-diary of the 15th August: Asu Das, brother of San-tosh, at first wanted to make a statement before the Magistrate regarding his knowledge in the affairs and then took time to consider over the matter." This certainly suggests that Ashutosh saw Mr. Weston on that morning.

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4. Secondly, there is Exhibit 45 which is an application by Ashutosh of the 15th August to be allowed to see His father which was allowed by Mr. Weston on the same date.

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5. Ashutosh s evidence is that he wrote this on the verandah of Mr. Weston s house on the morning of the 15th August.

426. Now, this application of Ashutosh s differs from all the other applications that he presented to Mr. Weston as it is written in the vernacular. All his other petitions to Mr. Weston were written for him in English by a dismissed Post-master.

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27. This document shows that the story about Ashutosh s not getting within 80 or 100 yards from Mr. Weston s house is not true. Ashutosh s evidence as to what happened on the morning of the 15th August is, I am satisfied, true and is confirmed by his statement of the 16th August (sent to the Government on the 27th August), Exhibit F.

428. Then Mr. Weston proceeded to deal with Surendra. He sent for Babu Surendra Nath Chakrabatti, Deputy Magistrate, to record Surendra s confession.

429. Surendra s confession was recorded in Mr. Nelson s house by the Deputy Magistrate, Mr. Nelson being present most of the time. If Santosh s confession suggests that portions of it were not given in a narrative form but in answer to questions, Surendra s confession does so with far greater force. In fact, the Deputy Magistrate who recorded it stated in his evidence before me that any one reading the confession would probably think that it had been recorded in answer to questions put to Surendra. The Deputy Magistrate also states that, be was not aware that Surendra was coming out of a long period of Police custody which was obviously a material fact for the recording officer to know.

430. Now, the first matter that strikes one, on looking at the confession and the statement of Surendra recorded by Lal Mohun which was with the Deputy Magistrate and Mr. Nelson at the time when tho confession was recorded, is a most extraordinary coincidence. Lal Mohun in writing the word Das" in English writes the letter "a" open and the letter "S" he forms in a peculiar manner with a tail so that any porson unacquainted with his writing would think the word written was "Dey." Then there is a very extra-ordinary fact that in two places in the con-fession of Surendra which was recorded in Bengalee the word originally recorded was "Dey" instead of Das." This was subsequently altered into "Das." Surendra says this was done at Mr. Weston s house later. Space forbids more than a few instances being given of Surendra s confession which must have been recorded in answer to questions put to him.

431. First, near the beginning where Surendra is purporting to speak of the Basanta Malati Akra: "The Raja of Narajole used to pay a monthly subscription of Rs, 2 for that Akra. I don t exactly remember the name of the Raja of Narajole."

432. Considerably later in the confession we find the following statement:

Before the last Ulta Rath in the month of Asar (I do not remember the date and the day) the Raja of Narajole whose name is Raja Narendra Lal Khan came to Jamini Mullick s house.

433. Can any one doubt that in the first part of the confession a question was put to Surendra as to what was the name of the Raja of Narajole an that he answered, I don t exactly remember" and on the second occasion Surendra was asked if the name of the Raja of Narajole was Raja Narendra Lal Khan Then we come to the part of the confession as to the meeting said to have been held at the Basanta Malati Akra. The confession as to this is as follows:

That meeting was held at about 8 P.M. There was no special arrangement, for sitting. There was only one bench. There was no bed.

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4. I cannot doubt that questions were put to Surendra as to the seating: arrangements at that meeting. Moreover, we have a very significant fast that, in Exhibit G which was drawa up by Asadulla to be used by the informer Rakhal for the purpose of getting up his evidence there is this statement with regard to the meaning at the Basanta Malati Akra, "There was a bench for sitting."

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5. Next, one other statement as to the meeting at the Basanta Malati Akra:

I do not remember what other things were said in that meeting by what other persons." Then as to the meeting said to have been held at the Ras nancha of the Mullicks :

I don t, exactly remember who were present at that, meeting. Jyoti Das, Jamini Mullick and Moti Bahu were there. Hem Chandra, Abhoy Chandra Kunlu too were present. It might be 25 or 30 persons in all. I can say if names are mentioned to me.

Q.--(Suggested by Mr. Nelson, struck out) Was Jogendra Mullick then

A.-- Yes, Jogendra, Gobinda Pal, Hari (sic) Patal, Rakhal Chandra Pal, Ashutosh Kundu, Ashutosh Das (originally written Dey) all these persons were there.... I don t remember what other speeches were made.

436. Then at the meeting at the house of Kamini prostitute:

I don t remember who else made speeches.

437. Then take the meeting at the Raja of Mahisadal s house:

The date I cannot exactly remember.... I cannot say who live at the Mahisadal Raja s house and whether those who live there were present at the meeting." Then, lastly, one further example. The confession originally recorded gave the name of Honorary Magistrate Abinash Chandra Dutt." Later in the confession we find "whether Abinash s title is Mitter or anything else I do not know." Whereupon the former part of the confession "Honorary Magistrate Abinash Chandra Dutt" is altered to "Abinash Babu."

438. In my opinion there can be no doubt but that by far the greater portion of this confession was obtained from Surendra by means of questions put to him and that the confession was recorded in a form in manifest breach of the plain provisions of the law which, according to the Deputy Magistrate s own statement, were well known to him. I do not, however, believe that Mr. Nelson and the Deputy Magistrate knew that the confession that Surendra was making was untrue.

439. The Deputy Magistrate admits that if he knew Surendra was coming out of Police custody he would be much more careful. It is unfortunate that the Deputy Magistrate was not so told.

440. On the 15th August, under the permission given by Exhibit 75, Ashutosh saw his father in jail. Ashutosh informed his father what had taken place and his father advised him to go to thoe Bar Library and see the pleaders. The same afternoon Ashutosh went to the Bar Library and related his story, how his father had come to be arrested and the attempts made to get him to be a witness. A deputation accompanied by Ashutosh waited on Mr. Bradley Birt, the Additional District Magistrate, but Mr. Bradley Birt told him that he could not interfere and that they must go to Mr. Weston, The deputation said that Mr. Weston was absolutely in the hands of the Police. On the 16th August a number of gentlemen of Midnapore wrote to Mr. K.B. Dutt, who was then the Chairman of the Midnapore Municipality, requesting him to acquaint the Lieutenant Govrnot with the existing state of affairs. Pursuant to this requisition, Mr. Dutt telegraphaed to the Chief Secretary on the 16th August, the telegram (Exhibit. N.) in which it is stated: We are satisfied on materials which we desire to place before the Government that evidence implicating respectable and absolutely innocent persons is being fabricated."

441. On the 27th August Mr. Dutt forwarded to the Government two statements of Ashutosh dated respectively the 16th and 18th August, a statement of Jotindra Nath Sen (the plaintiff s grandson) and also a statement of Uperdra Nath Mukerjee (the brother of Surendra Nath Mukerjee).

442. Counsel for the defendants suggest that these statements were invented by the

Bar at Midnapore. That seems to be quite an impossible theory. I think the statements

are genuine and, on the whole, they contain a substantially accurate account of what had happened.

443. The 15th August had been fixed as the date on which the persona arrested on the 31st July should be produced before Mr. Nelson. None of them were so produced. On the 21st August Santosh was produced before Mr. Nelson but not in open Court, but in same other room at the Court premises. This again was in direct contravention of the provisions of the law.

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4. Section 852 of the Code of Criminal Procedure enacts: "the place in which any Criminal Court is held for the purposes of inquiring into or trying any offence shall be deemed an open Court to which the public generally may have access so far as the same can conveniently contain them."

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5. The plaintiff says that on the 21st August be was not taken cut of jail at all. I think he is right in this but it matters little whether he was or was not.

446. The production of Santosh but not in open Court on the 2lst August seems to suggest that his non-production on the 7th August was done of a deliberate and set purpose.

447. On the 21st August two petitions for bail were filed on behalf of Santosh and the plaintiff (Exhibit LXXXVI in No. 1 and Exhibit K.KK. in No 1). The petition of Santosh stated that he was innocent. The plaintiff s petition stated in paragraph 2: The petitioner s Raid son was pressed from the very beginning to make a confession but he denied all knowledge of the bomb. Para 3, That after the arrest of Santosh Chandra Das your petitioner was pressed by Various authorities to induce his son to make a confession whish not being done your petitioner was arrested on the 23rd July, 1908, and was remanded to hajat on the very day where he is rotting since then."

448. This petition sets out clearly the cause of the plaintiff s arrest, viz., his failure to induce Santosh to make a confession. The only thing that is not stated specifically is who were the "various authorities" that caused the plaintiff to be arrested.

449. By the 21st August it had been found out that the confessions of Santosh and Surendra contained mistakes which did not fit in with the reports of the informer. According to Lal Mohun, on the 21st August he went to the Police office at the Court and questioned Santosh as to his confession. Santosh according to Lal Mohun immediately cleared up all difficulties, corrected the dates and brought the incident of the 7th July into line with the alleged reports of the informer. Lal Mohun says that he recorded this additional statement of Santosh. Santosh says he gave no such statement. I accept Santosh s statement. The additional statement, if true, was one of considerable value. No statement of Santosh recorded by Lal Mohun could be used in evidence. There was a Magistrate in the building, and it is inconceivable, if Santosh did make this statement, that Lal Mohun would not at once have taken him before a Magistrate and had his statement recorded.

450. Surendra in his confession had come to grief more, because he had given, as being present at the meeting at the Basnta Malati Akra, Santosh who was then in Ranchi and Satyendra Nath Bose who was then in jail.

451. Lal Mohun says be went to the Jail on the 21st August and saw Surendra who immediately corrected the errors in his confession. Surendra say a he did nothing of the sort. I accept Sureudra s statement. I am satisfied if he had made this important correction he would have been taken before a Magistrate and the alteration would have been recorded. On the 28th of August, as I have already stated, the third batch was arrested. It is said that it was intended to arrest Ashutosh on that day but this could not be done as he was absconding.

452. I am satisfied that Ashutosh was not absconding. He was present in Court on the 31st, of August. It is now said that the plaintiff s house was again searched on the 28th of August by Asadulla.

453. Not a single question as to this search was put to the plaintiff or any of his witnesses.

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4. This search I am satisfied never took place and the return to the warrant by Asadulla is not genuine.

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5. The warrant (Exhibit CCXXV in No. 1) purports to show from the return on the back of it that the search took place in the presence of one witness, Abdulla, only. Section 103 of the Code of Criminal Procedure requires that there shall be at least two witnesses to a search.

456. Asadulla now says that there were two other witnesses--a doctor with leprosy on his hands and a blacksmith, neither of whose names does he recollect.

457. I reject Asadulla s evidence. The search, I am satisfied, never took place. Then, on the 31st of August the plaintiff, Santosh, Surendra and others were produced before Mr. Nelson in Court.

458. Mr. P.K. Bose, a Barrister, who is described in the list of Moderates and Extremists (Exhibit (sic)) as an Extremist and sup-porter of all the Akras, appeared for the Crown. The first thing that occurred in Court on that day was that Mr. Keays applied for bail on behalf of the Raja of Narajole.

459. Then Mr. Dutt applied for leave of the Court to hand over to the plaintiff, Santosh and Surendra three petitions to sign if they desired. It appears that, Mr. Dutt said they were important petitions, (See evidence of P.K. Bose on behalf of the defendants).

460. The petition handed to the plaintiff was, according to Lal Mohun, "a long petition" and when he had read a page or two of it, he got his son Suntosh to read the rest of it to him. The three petitions were then signed and handed back to Mr. Dutt. So far there is nor, much controversy on the evidence on this point.

461. The Court then adjourned for lunch. Lal Mohun s evidence is that he spent the

luncheon interval in conversation with a connection, of his wife who had come down to thw Court to see him. This .I do not believe. The evidence on behalf of the plaintiff is that the Police asked Santosh and Surendra during the adjournment of the Court what the petitions they had signed were and they said they were petitions for bail.

462. The evidence also is that the Policy officers told the plaintiff that he was going to be released but as he had signed a petition he could not be released unless he withdrew it.

463. On the Court resuming after the adjournment the plaintiff asked for his petition back and struck his name out.

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4. A petition (Exhibit B) which is said to have been the petition signed by the plaintiff is produced here. At first it was challenged by Counsel that this was not the petition, on the ground that the petition signed by the plaintiff on the 3lst of August was a short petition. Lal Mohun s evidence put an end to this suggestion for he says the plaintiff s petition was a long petition. Exhibit B consists of a petition written on five and a half sheets of foolscap the writing being on one side of the paper only, anything much shorter than this could hardly be described as a long petition."

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5. The evidence satisfies me that Exhibit B was the petition signed by the plaintiff on the 31st August.

466. To return to what happened in Court on the 31st August after the midday adjournment. Lal Mohun first gave some formal evidence and the case was withdrawn against the plaintiff and two others.

467. Then Mr. K.B. Dutt, made an application for bail for Santosh and Surendra and

some other of the accused. Mr. Nelson s evidence is that it is the usual practice for applications for bail to be founded on petitions.

468. So in the usual course the application for bail on behalf of Santosh and Surendra would be supported by petitions.

469. Santosh s petition (Exhibite 43) withdrew his confession and asked for an opportunity to make a statement which would disclose the circumstances under which he was by threat, inducement and persuasion compelled to make his confession, Surendra s petition (Exhibit, 44) did not formally withdraw his confessions, but he asked that an opportunity should be given him of making a statement in Court.

470. Apparently, while Mr. Dutt was making his application, Mr. Nelson was not paying great attention to it for the evidence shows that he was writing orders on other petitions. Mr. Nelson rejected the application for bail and immediately afterwards the case was adjourned, the record being immediately carried away by the Court Inspector, Rash Behary Sen, who is a Police officer who con-ducts prosecutions in he Court.

471. The Court Inspector at that time had charge of the record in the case. He, was as I have already said, cited as a witness by the defendants in this case but was not called. Presumably, therefore, his evidence on this point, if he had been called, would not have supported the defendants case.

472. The question is, were these two petitions put in on the 31st August or were they,

as Counsel for the defendants says, "smuggled into the record"

473. According to Mr. Norton, Mr. Dutt deliberately cheated and defrauded the Court" on that day.

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4. Mr. Cornish s evidence on this matter is as follows:

On the 31st August I heard of applications being signed by Santosh, Surendra and Peari. I think the Moulvi told me this before I went to the Club, He told me some petitions had been signed and put in. I think he said, but I can t remember, that they had been surreptitiously filed.... He must have told me what the petitions were. He told me I think that they were petitions of retractation of Santosh and Surendra. To the best of my belief I went and reported the matter to Mr. Weston. Mr. Weston wrote to Mr. Nelson and asked him if these petitions had been filed. Mr. Nelson, so far as I remember, knew nothing of them. When Mr. Nelson looked he found that they were with, the record. This was on the 3lst August. The Monlvi told Mr. Weston that the petitions were retractations.

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5. If Mr. Cornish s evidence be accepted there can be no doubt that the defendants knew about these petitions being filed and that they were petitions of retractations on the 31st August.

476. The Moulvi s evidence now is that he was in Court for only a few minutes on the 3lst of August. But before the Committing Magistrate, on the 8th September 1903, he said: "I was in Court on the 31st (i.e., the 31st Augnst). I did not hear of any application s to retract confessions. I do not know up to now if any such petitions were filed. I had not heard that two such petitions were filed and disappeated from the record, I have not heard of the existence of such petitions and their disappearance."

477. To Court. "I have heard of some petitions being smuggled into the record."

478. No reliance can be placed upon the evidence of the Moulvi.

479. Then the evidence of Lal Mohun is that he saw Santosh and Surendra sign the two petitions in Court on the 31st August but they were not filed in Court on that day. At the rising of the Court he says he glanced through the record but could find no petitions filed on behalf of Santosh and Surendra. H) then says he went and informed Mr. Weston that Santosh and Surendra had signed but had not filed two petitions.

480. This, however, does not agree with Lal Mohun s evidence at Sessions where he said:

Bail petitions were made for all the accused on the 31st August. They were presented in my presence.

Q--The petition for bail and the petition for retractation of confession is the same identical petition.

A.--I know now. I did not know at that time.

481. Lal Mohun at the Sessions evidently meant the Court to believe that petitions wore filed on behalf of Santosh and Surendra on the 31st August but he thought they were petitions for bail.

482. Then again, the account given by Mr. Weston here is substantially different from the account he gave at the Sessions.

483. At Sessions, Mr. Weston said: " I had the petitions of retractation in my house because I wanted to see them, I am in the habit of seeing records; it is part of my duty. I sent for them from Court. These were then in a flit file with the record, not part of the record. They came from the custody of the Court. I know there is a dispute as to what had become of them. They were underneath the record forming no part of the record. I heard of their existence because applications were put in for copies of them before the trying Magistrate."

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4. This is a different story to that which Mr. Weston has told here. On the 1st September, an application was made to the Court for copies of the confessions and "also for copies of the petitions filed by Santosh and Surendra filed on the 31st August."

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5. Mr. Nelson rejected the application for copies. In his order of the 2nd September he states: "These petitions were certainly not brought to my notice during the hearing. A perusal of them shows that both Surendra and Santosh demanded to be examined that day." Mr. Nelson had been concerned in recording both Santosh and Surendra s, confessions and one would have thought as soon as he became aware of the petitions of Santosh and Surendra asking for an opportunity to make a statement to him, he would at once either have gone to the jail or have had Santosh and Surendra produced before him and given them the opportunity of making a statement to him.

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86. On the 2nd September Lal Mohun and the Moulvi went to the jail and saw Santosh. The Moulvi says he did not go into the jail and see Santosh but he waited outside and that Lal Mohun only went in.

487. The entry in the case diary of Lal Mohun for the 2nd September is as follows:

With Moulvi Muzbarul Huq went to the jail and questioned Santosh Das about the petition alleged to have been signed by him on the 31st in Court of Joint Magistrate, and he said that he signed it without reading its contents considering it to be a bail application." Why "alleged to have been signed," when Lal Mohun saw Santosh sign the petition in Court Santosh s evidence is that the Moulvi and Lal Mohun came to him in jail and tried to get him to disclaim the petition of the 31st August. Santosh s story is, I think, far more probable.

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88. Fist of all, the Police-officers on the 2nd of September did not go to question Surendra in jail, the reason apparently being that Santosh s petition formally withdrew his confession whilst Surendra s did not do so but only stated that he wanted to make a statement to the Court,

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89. Secondly, when Mr. Reid--Mr. Nelson having been transferred on the 2nd September--went to jail on the 3rd September and asked Santosh and Surendra about the two petitions, they admit their signatures and that the petitions are theirs" (See Mr. Reid s order of the 3rd September), Santosh made no reservation on 3rd September that he thought he had signed the petition as a bail petition.

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90. Mr. Reid s order on the 3rd September was, "Orders will be passed thereon later." No orders were in fact ever passed on these two petitions. I cannot help thinking it would have been wiser that Mr. Reid on the 3rd of September had given Santosh and Surendra an opportunity of making a statement.

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91. The conclusion I come to with regard to (he two petitions of the 31st August is as follows:--First, that the two petitions were without doubt filed in Court on that day, that Mr. Nelson was not attending to what was being said in Court but was writing orders on other petitions. That when Mr. Nelson was questioned about these petitions subsequently he did not know of their existence and, therefore, it was assumed that the two petitions had been improperly put into the record, I think that it was owing to this that the subsequent unpleasant events arose. The evidence doubtless is in some parts suspicious as to there being an attempt to suppress these two petitions, and if Mr. Cornish s evidence is accepted doubtless it goes far to establish the plaintiff s contention. But on the whole after very careful consideration of the evidence I am of opinion that the whole incident arose out of a misunderstanding.

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92. Then the plaintiff s evidence is that on the night of the 31st August and again on the 1st September Lal Mohun came to his house to induce him to try and get Santosh to stick to his confession and that Ashutosh did write a letter to Santosh to this effect. But whether that be so or not, it is common ground that on the 2nd of Saptemaer Lal Mohun and, as I hold, the Moulvi also interviewed Santosh in his cell with reference to his petition. Whatever instructions Mr. Weston may have given the Police officers, I am satisfied that on the 2nd September they tried to persuade Santosh to disclaim his petition of the 31st Augast. On the 4th Saptember, Ashutosh was arrested and put up before Mr. Reid when he filed a petition for bail (Exhibit L.LL.), In this petition he stated that "the Police and the superior officer (Urdhatam Karmachari) have been for a long time trying to make your petitioner a witness in the bomb case." That the "superior officer" refers to Mr. Weston is not open to doubt. I have little doubt but that the arrest of Ashutosh was a move to try and get Santosh to stick to the confession which had required so much trouble to obtain and without which the defendants knew the criminal case would probably go to pieces.

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93. On the 3rd September Piyari Lal Ghosh, Vakil, wrote to the Superintendent of the jail, asking for an interview with Santosh and Surendra and other prisoners. This interview was granted as regards the prisoners other than Santosh and Surendra. With regard to Santosh and Surendra Mr. Weston himself came to the jail with Lal Mohun on the 5th September and says he as asked Santosh and Surendra if they wished to see a Vakil.

Mr. Weston then says he entered an order in the visitors book as follows: "I visited the confessing prisoners with whom a Vakil had asked for an interview, As the prisoners expressed no wish to see him the Superintendent may inform the Vakil accordingly." Other attempts by legal advisers to see Santosh and Surendra proved also unsuccessful. There seems to have been a very heated interview between the Superintendent of the jail and Mr. Keays and Mr. A.N. Chaudhuri.

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4. Major Weinman in his evidence before the Committing Magistrate said: "when the Councel asked me to see Santosh and Surendra, I asked why should I put it into his head that he could see them when he had already said he did not want to see a legal adviser." Major Weinman says, however, that he went and asked Santosh and Surendra, "Do you want to see a Vakil" Major Weinman knows perfectly well that an European or any other Barrister is not described in the vernacular as a "Vakil."

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5. The evidence satisfies me that every possible difficulty was being put in the way of Santosh and Surendra seeing their legal ad visers.

496. The net result was that before being taken to Court on the 7th of September, Santosh had seen his Pleader for three minutes that morning, and Surendra had not seen a legal adviser at all. It is suggested by Conusel for the plaintiff that the Pleader was allowed to see Santosh for three minutes on that morning, because Santosh had formally withdrawn his confession, and that special rules framed by Mr. Weston and Major Weinman as to interviews with confessing prisoners did not apply to Santosh.

497. On the 7th September the accused were taken to Court. Immediately Counsel applied for an interview with Santosh and Surendra. Mr. Reid allowed it "with certain precautions." Mr. Cornish was stationed outside the room in which the interview took place.

498. The interview appears to have lasted about two hours. Santosh and Surendra both signed petitions setting out the facts. They also--Santosh on the 7th September and Surendra on the 7th and 8th September--in the Court of Mr. Reid wrote out more detailed statements. These statements, if true, are of great importance. Now until the morning of the 7th September Santosh and Surendra had seen no one who could have tutored them to make these statements.

499. Counsel for the defendants say, however, that the legal gentlemen at the

interview allowed by Mr. Reid on the morning of the 7th September tutored Santosh

and Surendra. This is pure suggestion and there is not a word of evidence to support it.

500. The legal gentlemen who saw Santosh and Surendra on the morning of the 7th September were Mr. Godfrey, now Assistant Government Advocate in Burmah, Mr. K.B. Dutt, Mr. A.N. Chaudhuri, Mr. A.C. Dutt, and probably also Mr. Keays, now second Presidency Magistrate, and Mr. H. Mullick. There was also the Pleader Piyari Lall Ghose present.

501. The defendants try and get rid of the European Barristers as tutoring Counsel by saying they ware present only a few minutes. There is not the slightest reason to suppose that these statements were not written by Santosh and Surendra without any outside assistance. I have already stated what happened in the bomb case resulting finally in the acquittal of Santosh, Surendra and Jogjiban in this Court. A great deal of evidence has been given on behalf of the plaintiff in this case as to the treatment of the under-trial prisoners in the bomb case in jail.

502. There can be little doubt that the treatment of many of the prisoners was contrary to the provisions of the Jail Code. Major Weinman was a most unsatisfactory witness. He came here and gave evidence that the evidence he gave before the Committing Magistrate was incorrect or as he said it contained many, many mistakes." I think his evidence before me contained many mistakes also and I am not satisfied that his evidence before the Committing Magistrate was incorrect.

503. I refrain from going into the treatment of the prisoners in jail, not because I accept Major Weinman s or Mr. Brett s evidence but because I think that the evidence that has been given here is insufficient to establish that any of the defendants are responsible for such treatment.

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4. To sum up. From a careful appreciation of the evidence and having had an opportunity of seeing the witnesses on both sides in the witnesses-box I find the following facts:

First, that the story given in the reports alleged to have been given by Rakhal Chandra Laha was not in fact a true story.

Secondly, that the plaintiff has not proved that the bomb found in his house on the 8th July, 1908, was placed there at the in-stigation of the defendant, the Moulvi.

Thirdly, that the defendant Weston believed that the story contained in the reports alleged to have been given by Rakhal Chandra Laha was true.

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5. For this purpose it might be sufficient for me to say that the defendant Weston s belief in the story would be sufficiently evidenced by the manner in which he had his house guarded by armed constables. But as in the course of this judgment I have had occasion to severely criticise the defendant Weston s conduct, it is only fair to him that I should state that I am satisfied that not only did he believe in the story set out in the alleged reports of the informer but also that if he had suspected that the reports were untrue he would not have acted on them.

506. I apprehend that it is no part of a District Magistrat s duty to be an expert in criminal investigation. The defendant Weston, however, does appear to have endeavoured to have taken some steps to try and satisfy himself that the story was true. But he had neither the time, for his charge at Miduapore seems to have been an extraordinarily heavy one, nor the experience to do this in a satisfactory manner.

507. In this respect there seems to have been an extraordinary blunder somewhere, Mr. Cornish s evidence is that be was really ousted from any control over the Police officers engaged in the investigation of this case. His control, he says, was altogether nominal and that he understood that the Police officers were walking under the control of the Criminal Investigation Department. Mr. Plowden, the Deputy Inspector-General, having control of the Criminal Investigation Department, says that his Department had nothing to do with the investigation into the Bomb Conspiracy case at all except that occasionally he was asked for and gave advice. The result was that the defendants, the Moulvi and Lal Mohun, were under the control of no superior Police officer. Whether Mr. Cornish s view is correct or not, it is not necessary for me to state. There can be little doubt that Mr. Cornish had not a strong belief in the story related in the reports--nay more, be stated in his evidence that when the bomb was found in the record room of the Dutts on the 31st July, he suspected that the Police had put it there. It does not appear that be communicated this suspicion to the defendant Weston.

508. I think that the defendant Weston was misled as to the truth of the reports by the other two defendants.

509. Fourthly, I find that the defendants, the Moulvi and Lal Mohun, did not believe in the story set out in the alleged reports of the informer.

510. This I infer from the procuring and attempting to procure false evidence, the tutoring of confessing prisoners and others by these two defendants.

511. Doubtless it does not follow as a matter of necessity that because these two defendants did these things that they know that the story was not true. But when evidence has been given establishing these facts it raises a strong presumptive case against these two defendants which if they fail to displace is, in my opinion, sufficient, proof of their not believing in the story.

512. Fifthly, I find that the reason of the plaintiff s arrest was to put pressure on his son Santosh to confess and not in the belief nor with a reasonable or other suspicion that the plaintiff had anything to do with the bomb found in his house, nor on the ground that the plaintiff was the owner of the house in which the bomb was found. I also find that prior to the arrest of the plaintiff, each of the defendants, at first by advice and persuasion and then by threats, tried to induce the plaintiff to get his son Santosh to make a confession and on his failure to induce Santosh to confess the defendants caused the plaintiff to be arrested.

513. The evidence to my mind establishes conclusively that the three defendants were working together in concert for a common object. The motive of the defendant, Mr. Weston, for joining the conspiracy may be very different from that of the two other defendants. But the law does not permit of a man being arrested in order to put pressure on his son to confess, even if the person causing the arrest believes that by so doing he will get evidence that will lead to the conviction of persons engaged in a huge conspiracy.

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4. I disbelieve altogether the suggestions of a corrupt motive that have been made against the defendant Weston.

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5. The story of the sale of his motor car to Mahisadal Raj has been satisfactorily explained by him, although it may not have been very discreet of him to sell it to the Rajat the time the Dewan was cited as a witness for the defence.

516. I most now deal shortly with the points of law that have been raised by Counsel. First, it is said that the standard of proof in a case like the present is the same as if the defendants were being tried for a criminal offence. Doubtless, the English textbook writers are not agreed on this point. Such eminent writers as Taylor and Stephen support the view that the standard of proof is in a case like the present such as would be required in a criminal case The tendency, however, of the authorities in England appears to me to be the other way.

517. However, in India the law of evidence is modified. The Act defines when a fact is said to be proved although, of course, in a case like the present due regard must be had to the presumption of innocence. This matter is, however, not open to argument in this Court. The point has recently been decided by Jenkins, C.J., and Woodroffe, J., in In the goods of Gopessur Dutt 16 C.W.N. 265 : 13 Ind. Cas. 577 [LQ/CalHC/1911/361] , in a judgment delivered so recently as the 18th July 1911 in which they decided that whatever may be the rule in England there is no rule under the Indian Evidence Act that the stand aid of proof in a case like the present must be the same as if the defendants were being tried on a criminal charge.

518. The next point argued is, that a suit to recover damages resulting from a conspiracy is not maintainable in British India The argument is put in this way. That as the only conspiracy which; constitutes a criminal offence under the Indian Penal Code is that of a conspiracy to wage war against the King, therefore no suit can be maintained for damages resulting from a conspiracy. To that argument I am unable to assent. This being a case instituted in a Court in the mofussil the Court has to apply the principles of justice, equity and good conscience to the case; that is to say, the principles of the law of England so far as suited to India and the state of society here.

519. That the Indian Penal Code took away by express words any civil remedy cannot be suggested nor can I see that it did so by necessary implication. I have, therefore, to consider the case apart from the provisions of the Indian Penal Code. On what principle of justice, equity or good conscience ought a plaintiff in a suit in a Court in India not to be entitled to recover damages which have resulted from a conspiracy to injure him In my opinion in such a case the plaintiff has a right of suit in India.

520. To hold otherwise would, I think, be a blot upon our system of jurisprudence.

521. The learned Advocate-General has referred as part of his argument to a memorandum by Lord Dunedin and Sir Arthur Cohen annexed to a report of the Commission on Trade Disputes expressing the view that it was only such conspiracy as amounts to a criminal offence that can give rise to civil liability. But the report obviously refers to conspiracies which are indictable according to the Common Law of England. Lord Macnaghten in his judgment; in Quinn v. Leathem (1901) A.C. 495 : 70 L.J.P.C. 76. 65 J.P. 708 : 50 W.R 139 : 85 L.T. 289 : 17 T.L.R. 749 expressly lays down that because a Statute has exempted certain conspiracies from the purview of the Criminal law, this does not in any way affect civil liability. Nor are Judges of the highest eminence all agreed that it is only such conspiracies as are indictable that can give rise to civil liability.

522. The next point raised by the Advocate-General is that the plaintiff has brought his suit on a conspiracy and he must be kept strictly to the cause of action that, he has set out in his plaint. To that view I assent.

523. But then argues the learned Advocate-General that this suit is in substance only one for malicious prosecution against; joint tortfeasors and, therefore, the plaintiff s suit must fail. To that view I cannot agree,

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4. I take the following from Lord Coke s Commentary on Littleton, Hargrave and

Butler s Edition, published in 1794, a book of the highest authority amongst English lawyers.

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5. Note on 161 A.

II. Where two or more conspire to harass any person by false and malicious suit whether criminally or civilly it is a crime punishable by indictment or the parties injured may sue for damages by writ of conspiracy; and both of these remedies lie at common law, that part of the Statute or Ordinance Articuli super charta which gives remedy against conspirators by writ out of Chancery being according to both Staunford and Lord Coke only an affirmance of the common law, Staunford P.C, 172, 2 Inst. 561, 562.

IV. There is also a remedy for a false and malicious prosecution though the aggravation of a conspiracy or confederacy is wanting and the injury comes from one only: for in such a case the party prosecuted may have an action upon the case for damages.

526. A conspiracy to maliciously prosecute a man is obviously indictable according to the common law of England.

As Lord Brampton pointed out in the case of Quinn v. Leathem (1901) A.C. 495 : 70 L.J.P.C. 76. 65 J.P. 703 : 50 W.R. 139 : 85 L.T. 289 : 17 T.L.R. 749 : "A conspiracy consists of an unlawful combination of two or more persons to do that which is contrary to law or to do that which is wrongful and harmful towards another person, it may be punished criminally by indictment or civilly by an action on the case in the nature of conspiracy if damage has been occasioned to the person against whom it is directed. It may also consist of an unlawful combination to carry out an object not in itself unlawful by unlawful means the essential elements whether of a criminal or of an actionable conspiracy are, in my opinion, the same though to sustain an action special damage must be proved. This is the substance of the decision in Barber v. Lesiter (1859) 7 C B.(N.S.) 175 : 29 L.J C.P. 161 : 6 Jur. (N.S.) 654."

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27. Applying the test given by Lord Brampton, it is clear that if the conspiracy is a criminal one it gives rise to civil liability if special damage has been (suffered by the plaintiff. The conspiracy in the present case would obviously be indictable at common law in England and, therefore, if damage resulted the plaintiff would have a good cause of action in England. In my opinion, he has a similar right in India.

528. The truth of the matter is that in a case like the present the plaintiff, has two causes of action, one to recover the damage that, has been occasioned to him as the result of the conspiracy, and the other to recover damages for malicious prosecution against the defendants as joint tortfeasors. This is well illustrated by the case of Quinn v. Leathern. (1901) A.C. 495 : 70 L.J.P.C. 76. 65 J.P. 703 : 50 W.R. 139 : 85 L.T. 289 : 17 T.L.R. 749. There the plaintiff in his pleading charged in the first four Courts as separate causes of action four separate acts each of which was alleged to have been done wrongfully and maliciously and with intent to injure the plaintiff and to have occasioned him actual loss, injury and damage. The fifth count charge I as a separate cause of action that the defendants unlawfully and maliciously conspired together and with others to do the various acts complained of in the previous counts with intent to injure the plaintiff and his trade and business and that by reason of the conspiracy he was injured and damaged in his trade. The jury returned a verdict in favour of the plaintiff on all five counts and the verdict and judgment were upheld on appeal in the House of Lords.

529. In my opinion the present suit to recover damages resulting from fie conspiracy is maintainable by the plaintiff. These points of law as to whether a suit to recover damages resulting from a conspiracy and as to the nature of the present suit do not in any way affect the merits of the suit. Their importance lies in the fact that if the suit is only one for malicious prosecution then the suit is barred under the provisions of the Indian Limitation Act as being brought after the statutory period has expired. I, therefore, decide the first issue in favour of the plaintiff and also the second issue so far as relates to the overt acts mentioned in Clauses (c), (d) and (e) of that issue.

530. The third issue is whether the defendants were entitled to notice of this suit under Section 80 of the Code of Civil Procedure. In my opinion they were not. A public officer sued in respect of an act done in bad faith is not entitled to notice under section SO. The decisions in this Court of Shahunshah Begum v. Fergusson 7 C. 499 and Raghubans v. Phool Kumari 32 C. 1130 : 1 C.L.J. 542 establish this proposition without doubt See also Muhammad Saddiq Ahmed v. Panna Lal 26 A. 220.

531. In these circumstances, it is not necessary for me to determine the fourth issue.

532. The fifth issue is whether this suit is barred by limitation

533. The Article of the Indian Limitation Act, 1908, which applies to the present suit is I think, Article

86. This suit is, I think, a suit "for compensation for any malfeasance, misfeasance or nonfeasance independent of contract and not herein specially provided for," the period of limitation for such a suit is two years from the time when the malfeasance, misfeasanee, or nonfeasance takes place. In this view the plaintiff s suit is brought within time. I do not agree with the argument that this suit is governed by Article 23 as being a suit "for compensation for a malicious prosecution," the period of limitation for which is one year from the time when the plaintiff is acquitted or the prosecution is otherwise terminated.

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4. If this suit is not governed by Article 33 I should hold that Article 120 applies. That Article fixes six years as the period of limitation with regard to suits for which no period of limitation is provided elsewhere in the Second Schedule to the Act.

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5. I am, therefore, of opinion that the present suit is not barred by limitation.

536. The sixth and last issue is, what damages is the plaintiff entitled to. In order to sustain an action of this nature the plaintiff must prove special damage. The conspiracy must be the proximate cause of the damage or the damage must be such as to have been in the contemplation of the parties.

537. In the present case the plaintiff has given evidence that he was compelled to spend a considerable, though not a heavy sum, owing to his arrest.

538. The question is whether these damages legally resulted from the conspiracy. The case principally relied upon by the defendants is the decision in Barber v. Lesiter (1859) 7 c.B. (N.S.). 175 : 29 L.J.C.P. 161 : 6 Jur. (N.S.). 654.

539. But all that decision laid down was that on the facts alleged in the declaration the conspiracy was not the proximate cause of the damage nor was the damage to the plain-tiff in the contemplation of the parties.

540. The damages is the present case are not, in my opinion, too remote. I adopt Lord Justice Fitzgibbon s statement in his charge to the jury in Quinn v. Leathem 7 C. 499 told the jury that pecuniary loss directly caused by the conduct of the defendants must be proved in order to establish a cause of action and I advised them to require to be satisfied that such loss to a substantial amount had been proved by the plaintiff. I decline to tell them that if actual and substantial pecuniary loss was proved to have been directly caused to the plaintiff by the wrongful acts of the defendants that they were bound to limit the amount of damage to the precise sum so proved."

541. I accordingly award to the plaintiff the sum of Rs. 1,000 as damages. The defendants must pay to the plaintiff his costs of this suit on scale No. 2.

542. Before parting with this case I wish to make a brief reference to a matter which, though not bearing directly on the result, is intimately connected with the conduct of this case and involves a serious imputation of unprofessional conduct, which two senior members of the Bar, one of them being the Advocate-General, have seen fit to make on the conduct of Counsel opposed to them.

543. It was made a matter of deliberate and unrestrained attack on Mr. Dutt that he had not gone into the witness-box. Mr. Dutt has himself explained the reason of his abstention and that reason appears to me to be satisfactory. His client, in whose favour his testimony would have been given, with full knowledge of this saw fit to retain him as his Counsel and it cannot be suggested that there was anything improper in Mr. Dutt s accepting this retainer. Having done this, it was in strict accordance with the rule of professional ethics of almost universal application that having taken up the position of an Advocate he should refrain from testifying on a trial which was being conducted by him. I may observe that this rule of professional conduct was not, I regret to say, observed by Mr. Dutt s opponents. I may further add that I viewed at the time and still view with complete dis-approval Mr. Norton s unfounded and abusive attack on Mr. Dutt s junior, Mr. H.D. Bose.