Patna High Court
Shyama Charan Bharthuar And Ors. vs Emperor on 21 March, 1934
Equivalent citations: 151IND. CAS.393, AIR 1934 PATNA 330
JUDGMENT
1. These five appeals from convictions by the Additional Sessions Judge of Gaya at one trial have been heard together and will be governed by this judgment. The argument on behalf of the appellants has been conducted mainly by Mr. 8. N. Sahai who appears, in appeals Nos. 332, 335 and 334 and by Mr. Baldeo Sahai who appears for Satruhan Saran Singh, an appellant, in appeal No. 531. The Advocates representing the other appellants have adopted the argument advanced by these senior Advocates.
2. On March 20, 1933, Rai Sahib Ajit Kumar Ganguli, Inspector of Police, filed a complaint before the District Magistrate of Gaya against 19 persons under Section 121-A, Penal Code, and under Section 120-B of that Code read with Sections 19 (e) and 19 (f) and 20, Indian Arms Act, and under Section 120-B read with Sections 392 and 395, Penal Code, accompanied by the sanction of the Local Government under Section 196, Criminal Procedure Code, to the prosecution under Section 121-A, Penal Code, and the previous sanction of the District Magistrate of Gaya to the prosecution under Sections 19 (e) and 19 (f) read with Section 120-B, Penal Code.
3. After inquiry by a Special Magistrate seventeen of the accused were committed to the Court of Session on charges (1) under Section 121-A, Penal Code, of having during the years 1929 to 1933 at Gaya, Palmerganj, Daltonganj, Benares, Patna and Calcutta, conspired among themselves and with fifteen other persons named to deprive the King-Emperor of the sovereignty of British India or to overawe by means of criminal force or show of criminal force the Government of India and the Local Government; (2) under Section 120-B inasmuch as the object of the said conspiracy was to commit dacoity, being an offence punishable with transportation for life, and (3) under Section 120-B inasmuch as the object of the said conspiracy was to commit offences punishable with imprisonment for a term of more than two years, namely (a) robbery, and (6) offences under Section 19 (e) and 19 (f), Indian Arms Act. Several of the accused were also charged with specific offences committed in pursuance of the said criminal conspiracy, to wit, Shyama Charan (or Sham) Bhartuar, (28), Sahadeo Singh (20) and Kesho Prasad (27) under Section 19 (f), Arms Act, of illegal possession during the years 1931 to 1933 at Gaya of revolvers including the weapon Ex. 6 without a license; Jagdeo Lohar (33) under Section 19 (f) and 19 (a), Arms Act, for being, at his home at Atrauli, in illegal possession on February 13, 1933, of parts of guns and of manufacturing and repairing arms; Lala Prasad, under Section 19 (f), Arms Act, of having been on August 2, at Gaya in illegal possession of ammunition; "Mahant" Bhagwat Das (22) under the same provision of having been on January 16, 1933, at Pahsi Kothi in Gaya, in illegal possession of the pistol, Ex. 2, the revolver Ex. 6 and the five cartridges; Ex. 7 : Mithilesh Kumar Singh (27) under the same provision of having on January 19, 1933, at Jamhor in the Gaya District being in illegal possession of five live cartridges; Sahadeo, Satrunan (26) and Deodhari (35) under Section 399, Penal Code, of having on March 8, 1933, at Palmerganj in Gaya District made preparations for committing a dacoity of postal cash; and Biswanath alias Birendra (18), Sayamnath Tandon or Malaviya (16) and Jagdeo Malaviya (17) of having under Section 392, Penal Code, committed robbery of a postal bag from mail-runner Basrath Dusadh at Sadignur (Khizrsarai) in the Gaya District.
4. The other two accused, Brijbhusan Sahai (30) commonly called B. B. Sahai, and Bageshwati Prasad Singh (38) were examined as approvers. Kesho Prasad a homeopath, sometimes styled "Doctor," declined the offer to be made approver, and a previous confession which he had made was proved. Shyama Charan, Kesho, Biswanath, Ganesh (22), Lala (17),' Radhamohan (28) and Brijbhusan are all Kayasths of the Gaya District, Satruhan, Sahdeo, Bhagwat Das and Bageshwari are Babhans of that district (the last mentioned a native of Patna but at Gaya since school days), the Malaviyas are Brahmans of Allahabad, Mithilesh is a Rajput, Jagdeo is a Lohar, Deodhari a leper, is apparently a Goala but describes himself as Manushya, and the Bengalis are respectively a Brahman of Daltonganj and a Baidya of Chittagong and Benares. The local men belong to the Aurangabad Sub-Division or are connected with the town of Gaya.
5. At the Sessions trial a jury of five was empanelled to try the charges under Section 392 and 399 and they acted as assessors in respect of the main charges which are not triable by a jury. The trial commenced on June 20, 1933, but for reasons set out by the learned Sessions Judge little progress was made for a long time. All the accused were defended ten of them at the expense of Government from July 8, on which the cross-examination of P. W. No. 1 commenced. On August 18, after fifty-two prosecution witnesses, including as the Judge states, most of the important witnesses such as the complainant, the approvers, persons who were associated with some of the accused' and search witnesses had been examined and the major portion of the trial had been completed each of the accused except B. K. Das Gupta filed an application which, except in the cases of P.N. Mukharji and Ramdhyan Singh contained a clear plea of guilty on the charge under Section 121-A. The learned Judge thought it right to ask each of the fourteen accused whether he had filed the petition and on receiving an answer in tile affirmative, asked him to state orally. The reply in each case was: I plead guilty to the charge under Section 121-A, Indian Penal Code and to further question that the accused did not wish to say anything more. The answer of Sahadeo was a little different when the Judge said: "Please say orally what you have to say about the petition," his reply was "consider myself guilty under Section 121-A, Indian Penal Code."
6. The Public Prosecutor thereupon prayed for a short adjournment in order to take instructions on the situation which had thus arisen. An adjournment was allowed to August 22, and then, owing to illness among the jurors, from the 22nd to the 24th and again to August 28. On August 28, the Public Prosecutor announced that he would proceed against the three accused who had not pleaded guilty and that in respect of the fourteen men who pleaded guilty, he would await the orders of the court in respect of the pleas of guilty. The learned Sessions Judge thereupon took the opinion of the assessors as to the pleas of guilty and when the assessors indicated that they considered them guilty on their confessions, the Judge in agreement with this unanimous opinion accepted the plea of guilty of each of those fourteen accused, convicted them under Section 121-A and set out that the only question was to assess the sentences to be passed on them.
7. Thereupon the Public Prosecutor withdrew the charges under Section 120-B and the Judge having assented, the Public Prosecutor further prayed that the trial in respect of the remaining charges be proceeded with. The Judge, however, in the exercise of his direction under Section 240, Criminal Procedure Code, stayed for the present the trial of the fourteen accused whom he had convicted of the charge under Section 121-A and acquitted of the charges under Section 120-B and in doing so again indicated that only the question of sentence to be passed upon them under Section 121-A remained for consideration. The record in the order sheet proceeds.
I therefore asked the defence Advocate and the learned Public Prosecutor that they could address me on this question if they chose to do so Mr. Sinha on behalf of these fourteen men has argued that they should be leniently dealt with and has urged certain points for my consideration. The learned Public Prosecutor has very fairly stated that the Grown does not want to be in any way vindictive against any of these fourteen men.
8. The Judge then made reference to certain decisions and removed from the dock the persons who had pleaded guilty to be brought for sentence later. In his view it was not fair to the remaining three accused that the fourteen accused who had pleaded guilty should continue to be tried along with them on the remaining charges.
9. The Crown thereafter examined twenty-one further witnesses against those three accused. No witnesses were examined for the defence and the Judge delivered judgment on September 12. Dealing with the fourteen persons whom he had found guilty under Section 121-A on their own plea under which they stood convicted, he observed that the only point which remained was what sentence should be passed upon them. He considered the submissions of Mr. D.P. Sinha on their behalf and having set out the principles which should guide him in awarding punishment, he proceeded to consider the application of those principles to the case of each accused as it appeared in the evidence recorded up to August 18, with the result that he sentenced the chief offenders Shyama Charan, Kesho Prasad and Biswanath to seven years' rigorous imprisonment, Satruhan Saran Singh, Sahadeo Singh and Jagdeo Lohar to five years' rigorous imprisonment, Mithilesh to four years, Lala Prasad to three years, and Ganesh Prasad to two years' rigorous imprisonment and in each case a fine of Rs. 200 except in the case of Ganesh Prasad where the fine is one of Rs. 150. These nine accused are appellants. He also sentenced the two Malaviyas, youths of Allahabad, Shama and Jagadeo, who were associated with Biswanath in the Khizrsarai mail bag robbery, to three years' rigorous imprisonment; Bhagwat Das, an unsuccessful aspirant to Mahantship, to two years and a fine of Rs. 150 and Deodhari Jadab, a leper, to one year and Radhamohan, a Kayasth of Gaya, to two years' rigorous imprisonment. These five have not appealed, perhaps because their sentences are comparatively light.
10. The learned Judge then considered at. length the cases of Promotha Nath Mukharji, Bijoy Kumar Das Gupta and Ramdhyan Singh. In agreement with the unanimous opinion of the assessors he found Promotha guilty under Section 121-A, Indian Ponal Code, and as he was already undergoing three years' rigorous imprisonment for the theft and illegal possession of a revolver at Daltonganj, he sentenced him to four years' rigorous imprisonment and a fine of Rs. 200. Agreeing with three assessors, he convicted Bijay Kumar Das Gupta of Chittagong and Benares under Section 121-A and sentenced him to two years' rigorous imprisonment. He acquitted both accused of the charges under Section 120-B. Agreeing with all the assessors, he acquitted Ramdhyan Singh.
11. After the Sessions Judge had delivered judgment, the Public Prosecutor prayed for an adjournment to enable the Crown to consider the question of the suspended charges and on September 15, he intimated that the Local Government had decided not to proceed with the specific charges under Sections 392 and 399, Penal Code, and Section 19, Clause (e) and (f), Arms Act, against 11 out of the 14 accused who had pleaded guilty. The Court, consenting to the withdrawal, directed that the withdrawal should have the effect of an acquittal on the charges withdrawn unless the conviction be set aside in appeal by the High Court or subject to such orders as may be passed by that Court.
12. Under Section 412, Criminal Procedure Code, no appeal lies except as to the extent or legality of the sentence when an accused person has pleaded guilty and has been convicted by a Court of Session on such plea. Prima facie, therefore, these appeals, except No. 332 preferred by Promotha and No. 335 preferred by B.K. Das Gupta, are restricted to the question of sentence. It is, however, contended on behalf of the appellants that this provision has no application since (1) the conviction was in fact based on the evidence actually recorded; (2) a plea of guilty offered after the accused has claimed to be tried is not within the contemplation of the Code; and (3) as is urged on the strength of three affidavits in similar terms, these appellants were induced to plead guilty upon a promise of the District Magistrate of Gaya that.
Government will not be vindictive and will not press for deterrent sentences and the other charges will be withdrawn.
and thus the so-called plea of guilty being but a confession irrelevant under Section 24, Evidence Act, as being caused by the promise proceeding from a person in authority and sufficient to give the maker.
grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
is not such a plea as is contemplated by Section 412. Reference is also made to Section 343 which prohibits the use of any influence by means of any promise to induce an accused person "to disclose any matter within his knowledge." In my opinion these submissions are not valid and do not avail these appellants.
13. It is clear from what has been set out above, that in fact the learned Judge expressly convicted these nine appellants on their own plea of guilty. No doubt he did question the accused as to their written plea of guilty and take the opinion of the assessors as to the plea. But such action was in no sense illegal and it was certainly highly expedient in the circumstances. Under the provisions of Section 271(2) which runs.
if the accused pleads guilty, the plea shall be recorded, and he may be convicted thereon,
14. it is discretionary for the Court to convict on a plea of guilty. Having regard to all the circumstances of the case as they appear from the judgment and the order-sheet, it was incumbent upon the learned Sessions Judge to make quite certain that the petitions of the accused embodying the plea of guilty to one of the charges emanated from the accused themselves and represented their own wishes. Even in ordinary circumstances a Judge would fail in his duty who did not satisfy himself from the oral statement of the accused that his plea of guilty was voluntary. It is contended that the questions to the accused were not covered by Section 342 of the Code and that there is no other provision whereby the Court of Session may ask the accused questions. But even if a petition in which he admits a charge is not a circumstance appearing in evidence against him it does not follow that he may not be questioned (or, to use the term in Section 364,) examined on other matters, Section 342 is mandatory, but it is not exhaustive as indeed Section 271 itself shows. And there is no more irregularity in recording the questions in the present instance in the form prescribed under Section 364 than there is in recording in that form, as is of ten done, the answer to the question prescribed by Section 271 (1), namely, whether the accused is guilty of the offence charged or claims to be tried. But in any event even assuming that there was a slight irregularity in the proceedings, Section 537 (a), Criminal Procedure Code, amply meets the case unless the Court's action in fact occasioned a failure of justice, a contention which could not possibly be advanced.
15. Further, there could, to say the least, be no harm in taking the views of five intelligent men who had listened to the case for many days, on the subject of the plea of guilty. The question was restricted to the plea and they were not invited to give an opinion as to whether the evidence establishes the charge against the accused. Again assuming that there was an irregularity it could not possibly prejudice the appellant and Section 537 applies.
16. No doubt Section 271 (1) lays down that the question put to the accused at the beginning of the proceedings after the charge had been read over and explained to him, is whether he is guilty of the offence charged or claims to be tried. (Obviously the legislature designedly used this form in order to avoid contagion in India from the Case-law relating to the plea of "not guilty" which obtains in England.) The Code then provides in Sub-Section (2) that if accused pleads guilty, the plea shall be recorded and he may be convicted thereon and if he claims to be tried, the Court shall proceed to choose jurors or assessors and try the case. There is no implication that when an accused in the course of the trial withdraws his claim to be tried and plead guilty, the Court is not entitled to record the plea and either accept it or continue the trial.
17. The expression by the Court in Section 271 and a "Court of Sessions" in Section 412 obviously mean the "Judge" only, who, in his discretion, may convict and in this instance has convicted, on the plea of guilty. Once he has exercised his discretion under Section 271 (2) no consideration can be adduced to show that that discretion was not properly exercised so as to affect the provisions of Section 412. Palpably therefore in the present instance the appeal of these nine appellants is restricted to the question of sentence only even if the suggestions in the affidavit are correct. A word may here be added as to Section 24, Evidence Act. It has been referred to on the view that a plea of guilty is, a confession within the terms of that provision and that if such a confession was irrelevant under that provision, it could not be accepted at all and so Section 412. would not apply where the plea of guilty had been accepted illegally. But the argument does not commend itself. A plea of guilty under Section 271 (2), Criminal Procedure Code, is not a confession such as is dealt with in the Indian Evidence Act in respect of relevance or irrelevance. It is a statement which, if accepted by the Court," amounts to a waiver on the part of the accused of trial in which alone a confession might be utilized in evidence. To come now to the extent or legality of the sentences awarded to these nine appellants, no consideration of any value has been adduced to show that the sentences are severe or illegal. The fact that the appellants tried of a lengthy trial or impressed by the weight of the evidence against them or partly the one and partly the other, decided to cut short proceedings in the hope that a lenient sentence would be passed on them is not in itself a ground for departing from the ordinary tariff of punishment for the offence. Among the considerations urged before us in favour of sentence were, chiefly, the youth of the appellants Biswanath, Sahadeo and Lala, the fewness of the overt acts, the contention that the letters to the District Magistrate and the Superintendent of Jail were only bluff, the period of detention before and during trial and the strain of the trial, as well as the significance of the plea of guilty as an indication of a desire to forsake their methods and aims, reinforced by their Advocate's spontaneous reference to the possibility of an order under Section 106, Criminal Procedure Code, for a period of three ears. Such "significance" is however negatived by the affidavits filed on their behalf. The fact remains that the appellants with others constituted a revolutionary conspiracy, that some of the conspirators, were connected with conspiracies in other parts of the country and that all the accused prepared to defy the law and to commit outrages of great gravity without regard to the consequences to law abiding people. The learned Sessions Judge has very carefully applied correct judicial principles of punishment to the case of each individual appellant and has after giving due weight to all the considerations advanced before him, awarded sentences which in our judgment formed after very careful examination of the relevant considerations sad the extensive submissions to us, are proper in character and carefully adjusted and such as by no means err on the side of severity, especially in the case of the leaders in the conspiracy. There being no ground for interference with the sentences, their appeals fail and are dismissed.
18. It has, however, been urged before us that there is a case for the exercise of our powers under Section 439, Criminal Procedure Code, in which view a re-trial would be directed, that being the order most favourable to them which these appellants could expect in the circumstances. The substance of the three affidavits on which the submission is based, is as follows: (After examining the affidavits and the contention of the accused that they were induced to plead guilty by the District Magistrate and the officers, their Lordships proceeded). There was no promise, no undertaking but a mere announcement of the attitude of Government. As a matter of fact, it is extremely unusual, if not unheard of, for the Government in this Province to ask for a deterrent sentence. These appellants are particularly wideawake persons and they were advised by an Advocate of great and recent experience in defending in such prosecutions. No one could have a keener appreciation of the position than they. It was a case of recognizing the inevitable and cutting short an irksome trial which they perceived could only end in conviction with at least as heavy a sentence, and that too starting from and ending at a later date. If pressure or diplomacy could secure them a light sentence, it would be their gain, if the prosecution could not be cajoled or intimidated, the plea of guilty would be tendered all the same as it would be at least same gain to secure an earlier termination of the trial.
19. It is indeed manifest that the plea of guilty was the accused's own deliberate uninfluenced act determined upon first independently of and then in consultation with their advisers. The leaders among them hoped and schemed for a conclusion on the lines of a conspiracy case of which they had read in the newspapers; but everybody connected with the prosecution was conspicuously weary and refused to entertain any proposals whatsoever, leaving the question of sentence to the Judge to whom it properly belongs. That view receives striking corroboration from the Judge's record (already quoted) in the order sheet as to what took place after the plea of guilty was accepted by the Court in particular the failure of their Advocate even to hint at any arrangement. As already indicated, of the fourteen who tendered a plea of guilty five have not preferred an appeal. They are persons who having been less seriously implicated in the conspiracy, have been awarded sentences which are in proportion to their guilt, and therefore lighter than those of the appellants, though still substantial, The appellants, feel aggrieved because their sentences are heavier than they expected. That point properly arises in their appeal and has been dealt with there. In the disclosures there is nothing further to move the conscience of the Court in respect either of the plea of guilty or the actual guilt of the persons convicted on their plea of guilty.
20. The case is, therefore, not one in which the revisional powers of the Court are to be invoked or exercised. But we desire to say that in the course of hearing we have in fact permitted the learned Advocate to refer to and to comment upon all the recorded evidence at their discretion and the conclusion to which we are constrained is that it is certainly not established that the convictions are unsound or even doubtful and that on the contrary, there is every reason to hold that they are correct and that on the merits no interference with them would be warranted. (Their Lordships then considered the Appeals Nos. 332 and 335 by the two accused who did not plead guilty and dismissed them also.)