Equivalent Citation: AIR1946Nag173, [1946]ILR Nag126

IN THE HIGH COURT OF NAGPUR

Criminal Appeal No. 72 of 1945

Decided On: 05.09.1945

Appellants: MaganlalVs.

Respondent: King-Emperor

Hon'ble Judges/Coram:Mr. Justice Niyogi and Mr. Justice Hemeon

Counsels:For Appellant/Petitioner/Plaintiff: Dr. T.J. Kedar, V.T. Kedar, S.K. Wankhede and E.J. Moharir in Criminal Appeal No. 72 of 1945 and G.J. Ghate and Y.G. Shirke in Criminal Appeal No. 73 of 1945

For Respondents/Defendant: M. Hidayatullah, Advocate-General and W.B. Pendharkar, Additional Government Pleader for the Crown in Criminal Appeal Nos. 72 and 73 of 1945

Subject: Criminal

Acts/Rules/Orders: Arms Act 1959 - Section 19 (f), Arms Act 1959 - Section 20; Explosive Substances Act, 1908 - Section 4, Explosive Substances Act, 1908 - Section 5, Explosive Substances Act, 1908 - Section 6;Indian Evidence Act, 1872 - Section 118, Indian Evidence Act, 1872 - Section 137, Indian Evidence Act, 1872 - Section 25, Indian Evidence Act, 1872 - Section 45, Indian Evidence Act, 1872 - Section 60, Indian Evidence Act, 1872 - Section 83; Indian Penal Code (45 Of 1860) (IPC) - Section 108, Indian Penal Code (45 Of 1860) (IPC) - Section 120-B, Indian Penal Code (45 Of 1860) (IPC) - Section 121, Indian Penal Code (45 Of 1860) (IPC) - Section 121A, Indian Penal Code (45 Of 1860) (IPC) - Section 122, Indian Penal Code (45 Of 1860) (IPC) - Section 123, Indian Penal Code (45 Of 1860) (IPC) - Section 124, Indian Penal Code (45 Of 1860) (IPC) - Section 127, Indian Penal Code (45 Of 1860) (IPC) - Section 147, Indian Penal Code (45 Of 1860) (IPC) - Section 149, Indian Penal Code (45 Of 1860) (IPC) - Section 307, Indian Penal Code (45 Of 1860) (IPC) - Section 353, Indian Penal Code (45 Of 1860) (IPC) - Section 395, Indian Penal Code (45 Of 1860) (IPC) - Section 397, Indian Penal Code (45 Of 1860) (IPC) - Section 411, Indian Penal Code (45 Of 1860) (IPC) - Section 412, Indian Penal Code (45 Of 1860) (IPC) - Section 436, Indian Penal Code (45 Of 1860) (IPC) - Section 454, Indian Penal Code (45 Of 1860) (IPC) - Section 457, Indian Penal Code (45 Of 1860) (IPC) - Section 94

Catch Words

Mentioned IN

Overruled / Reversed by:Tilkeshwar Singh and Ors. Vs. The State of Bihar, MANU/SC/0035/1955

Disposition: Appeal Dismissed

Case Note:Penal Code, Indian (XLV of 1860), sections 94, 108, 121 - Waging mar against the King, Offence of--Ingredients--Abetment of offence under section 121, Successful and unsuccessful--Punishment--Distinction, Absence of--Distinction between principal and accessory--Compulsion--Defence--Criminal Procedure Code (V of 1898), sections 162 (1), 164, 537--Offence--Reports by two persons to different places one after the other--First information--Admissibility of evidence--Mandatory provisions, Breach of--Failure of justice, Absence of--Irregularity not vitiating the conviction--Section 537, Applicability of--Evidence Act, Indian (I of 1872), sections 33, 118--Evidence--Cross-examination--Opportunity not available to a party--Admissibility.

Neither the number of persons nor the manner in which they are assembled or armed is material to constitute an offence under section 121 of the Indian Penal Code. The true criterion is the purpose or intention with which the gathering assembled. The object of the gathering must be to attain by force and violence an object of a general public nature thereby striking directly against the King's authority.

While under the general law as to abetment a distinction is made for the purpose of punishment between abetment which has succeeded and abetment which has failed, section 121 of the Indian Penal Code does away with the distinction and deals equally with an abettor whose instigation has led to1 a war and one whose instigation has taken no effect whatsoever. There is thus no distinction between principal and accessory and all who take part in the unlawful act incur the same guilt.

When two different persons make reports about the commission of an offence at two different places, one earlier in point of time than the other, the later report is not a statement made to a police officer in the course of investigation but is an independent first information report and can therefore be used in evidence by the prosecution.

The mere breach of a provision even though mandatory cannot be said to be an illegality necessarily vitiating the proceedings and unless there is a failure of justice occasioned thereby, it will not warrant the quashing of conviction.

No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination.

JUDGMENT

Hemeon, J.

1. The appellant Maganlal "Marwadi has been convicted and sentenced to undergo transportation for life under s. 121, Penal Code, s. 307, ibid, and Defence of India Rule 35,10 years rigorous imprisonment under S. 397, Penal Code, 10 years rigorous imprisonment and a fine of Rupees 2000 under s. 436/149 and two terms, each of 2 years rigorous imprisonment, under Ss. 147 and 353, ibid, in sessions Trial No. 37 of 1944 by the Additional Sessions Judge, Nagpur. All the sentences run concurrently. In the same trial, Mallu Koshti was convicted and sentenced under s. 121, Penal ?ode, to undergo

transportation for life, under s. 307/149, ibid, to 8 years rigorous imprisonment, under S. 436/149, ibid, to 8 years rigorous imprisonment, under S. 395, ibid, to 5 years rigorous imprisonment and under S. 147 to 2 years rigorous imprisonment, all the sentences running concurrently, and his appeal, viz., Criminal Appeal no. 73 of 1945, will be considered in this judgment. Maganlal and his elder brother Champalal are the owners of a money-lending firm in Hansapuri mohalla, Nagpur, as well as, field and a house in mouza Baroda which is about 16 miles from Nagpur and 6 miles from mouza Maudha. The appellant Mallu, who is a wrestler, resides in Maudha where he deals in handloom cloth and Shamlal Nai (who was acquitted in the trial) is an ex-constable of police who lives in Nagpur.

2. The prosecution case is briefly stated as follows. Maganlal and Shamlal Nai were the organisers and officers of the Hindustan Red Army, the head office of which was in Nagpur in front of the former's house. "There were branch offices at Umrer and other places close to Nagpur. Its flag was a red flag with a hammer and sickle on it and the uniforms consisted of red shorts and khaki shirts bearing on the shoulders a metal badge with the letters H. L. S., i.e., the initials of the words "Hindusthan Lai Sena." The officers wore Sam Brown belts, topes , boots and stockings with or without puttees. The strength of this force was about 300 and on certain occasions, e.g., Jalianwala Bag and Independence days it used to go on route marches under the command of its officers including Shamlal Nai and Shyamuarayan Kashmiri, Among their slogans was 'Inkilab Zindabad' (Long Live Revolution) and Maganlal and Shamlal addressed public meetings, one on 23rd September 1939 at Umrer and the other, presided over by V. S. Dandekar, on 25th June 1940 in Chitnavis Park, Nagpur, in which they stressed the weakness of the British forces on the continent of Europe and exhorted their listeners to seize the opportunity and secure India's independence. In the last week of July 1942, Maganlal went to Maudha and under the pretext of relieving the extensive damage caused by the Kanhan floods raised a Sanrakshak Dal consisting of about 100 volunteers who were, when the time came, to mobilise on the blow of a whistle. On the, 12th of the following August, the police outpost of circle no. 4, Nagpur, was burnt down and next morning Balgovind, constable, who was attached to that outpost was killed. 3 muskets Nos. 438, 445 and 447 and 60 rounds of ammunition were removed by the raiders. That evening Maganlal and Shamlal went to Baroda and on the following morning, viz., Friday 14th August 1942 they conspired with the people of that village to deal with the Maudha station-house in the same way. In pursuance of this arrangement, pits were dug in the road between Baroda and Maudha, the Kanhan bridge and culverts were broken and big trees were placed across the road in order to sever communication with Nagpur. Babulal Gupta and others were despatched to Maudha in order to assemble a force for the attack on the station-house; others were posted at the Kanhan bridge in order to prevent communication with Nagpur and Maganlal and Shamlal who were each armed with a gun and Baliram who was armed with spear waited at a culvert which is about 50 yards from the station-house.

3. Meanwhile, at about 5 P.M. Babulal Gupta ascertained the strength of the police force at the station-house and arranged with the volunteers then in the market place to make the announcement that V. S. Dandekar would give a lecture. The object was to attract a gathering of people and when it was assembled someone announced that as the British raj had been displaced by the Congress raj, there was no need for police and all should proceed to burn down the station-house. A whistle was then blown and a force of about 200 proceeded to raid the thana. Meanwhile, Shaikh Daood, constable, who had been sent with a letter by Mendulal, Sub-Inspector, invoking assistance from Nagpur, was molested and detained at the Kanban bridge by Maganlal and his companions. At about 5-30 p.m. news reached the station-house of Dandekar's lecture and Mendulal, Gajanan Prasad (P.W. 22), head constable, and some constables, got ready to attend it while Gourishankar (P.W. 26), head constable, went to his quarters to take a meal. The station-house was locked up at that time and while the police party were awaiting the return of Gourishankar, Shankar

(P.W. 43), constable, came running to report the decision which bad been reached on the parade ground. Almost immediately afterwards, the attacking force arrived at the culvert and Maganlal and Shamlal shot Gajanan Prasad in the left arm. The mob including the appellant Malluthen proceeded to the lamp post in front of the station-house and Maganlal shot Gourishankar in the knee. The mob thereafter raided the station-house, broke the doors and windows, set fire to the building, registers and furniture before making away with 4 police muskets nos. 537 to 540 with bayonets, oil cans, pull-throughs, handcuffs, police uniforms, oil can (article f), pull-through {article g) and the great coat (article E). The raiders then proceeded to the Gram Panchayat where Maganlal told Premlal, the Gram Panchayat Officer, what had happened and asked him to guard the road on the Bhandara side. Shankar, constable, who had taken to flight from the station-house when the firing opened was found hiding in a temple and when produced at the Gram Panchayat was taken by Maganlal and his companions to his house where his great coat (article D) and other things were removed. Maganlal demanded and received from Balaji Appa, treasurer of the Sanrakshak Dal Committee, Rs. 300 for the expenses of his men and he and his group returned to the Kanhan bridge from where they took Shaikh Daood and Shankar constables to mouza Baroda where they were detained until the morning of the 16th August 1942 when they effected their escape. Jamshed Khan (P.W. 50), station-house officer, recorded Gourishankar's first information report Ex. P-7 next day and started the investigation.

4. Of the 29 persons who had not absconded and were subsequently prosecuted, 8 were acquitted, one was discharged and the remaining 20 were sentenced to varying terms of imprisonment ranging from 1 to 10 years by the Special Judge, Mr. G. J. Ambardekar. The Review Judge modified the latter's judgment by reducing the sentences imposed on 3 of the accused persons. All 20 appealed and as will be seen from ('45) 32 MANU/NA/0091/1944  : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218 I.C. 294, Baliram Tikaram v. Emperor, we maintained the convictions of 8 appellants, altered Baliram's convictions to a conviction under s. 411, Penal Code, and set aside the convictions of the remaining 11 appellants. The appellants Maganlal and Mallu as well as-Shamlal had absconded before the investigation began and Mallu was arrested in Nagpur on 8th June 1943 by Sadashiwa (P.W. 30), Sub-Inspector. Shamlal was arrested in Bombay on 18th July 1943 by Pradhan (P.W. 4), Sub-Inspector, who with the C. I. D. Inspectors-Tiwari (P.W. 49) and Pinto arrested Maganlal 10 days later in Bombay. Maganlal in examination disclaimed all connection with the Hindusthan Red Army and declared that from 6th August 1942 until the date of his arrest he was in Bombay. Mallu who admitted that he was a member of the Sanrakshak Dal Committee at Maudha on 14th August 1942 asserted that on or about 19th or 20th August 1942 be was by reason of police harassment compelled to move to Nagpur where he resided with his brother. As to his movements on the Friday in question his version was that he was occupied in distributing grain from 3-30 P.M. to 7-20 P.M. Neither appellant, however, adduced any evidence in support of his alibi.

5. Before discussing that part of the case which relates to the happenings immediately before and on 14th August 1942 at Maudha, it will be fitting first to refer chronologically to occurrences which took place after that date, in order to show Maganlal's associations and activities while he was absconding and the link which existed between the raiders on the police outpost at Nagpur and the police station-house at Maudha. Maganlal, Shamlal and Mallu had, as we have noted, absconded and on 20th and 21st August 1942 the District Superintendent of Police, Nagpur, issued proclamations offering rewards for information which would lead to the arrest of Maganlal, Shamlal or any member of the gang associated with the former in the attacks on the Maudha station-house and two of its head constables. On the morning of 20th October 1942 Baliram at Nagpur boarded a bus in which he had previously deposited a long bundle and some bags and after the bus had been driven by the driver Shriram (P.W. 45), in accordance with police instructions, to the

Sitabuldi station-house, the bundles and bags were opened and found to contain musket no. 447, 2 great coats, 5 live cartridges, oil can no. 537 and pull-through no. 537. The musket was one of those removed from police outpost, Circle No. 4, Nagpur, on 12fch August 1942 and the great coats, oilcan and pull-through were articles taken at Maudha two days later when the station-house was raided. Baliram wag, as adumbrated, subsequently sentenced ('45) 32 MANU/NA/0091/1944  : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218 I.C. 294, Baliram Tikaram v. Emperor to 8 years rigorous imprisonment under S. 411, Penal Code, for the dishonest receiving of these articles.

6. On 11th November 1942 a bomb exploded outside the bungalow of Mr. Farquhar, I.C. S., and of the 16 persons prosecuted in respect of this offence and other offences, Ramrao and six others were convicted and sentenced to terms of imprisonment ranging from five to two years' rigorous imprisonment under s. 120-B read with ss. 436, 454 and 457, Penal Code, Ss. 4, 5 and 6, Explosive Substances Act, and Defence of India Rule 35, by the First Additional Sessions Judge, Nagpur. Their appeals were dismissed by Pollock J. on 81st January 1945. Five days before this explosion, Chandkhan (P.W. 32), constable, apprehended Sajit Banerjee who had set fire to a telephone cable lead in the Sadar Bazar, Nagpur, and took him to the Sitabuldi station-house where he disclosed to Ramsingh (P.W. 38), Sub-Inspector that the organiser of offences of that kind was Chourey but claimed that he was unaware of his address. Information regarding this was not secured until 22nd January 1943 when Ingole (P.W. 36), Sub-Inspector, learned in Ridhora that Maganlal, Shamlal and others used to meet in B. R. Chourey's house on the Telankheri road in Nagpur. B. R. Chourey, an employee of the Nagpur Municipal Committee, occupied this house which is on the Amraoti road in the vicinity of the Telankheri tank from November 1942 to 23rd January 1943 when he was arrested there by the police who in the course of a superficial search seized a book entitled "Revolution or Counter-revolution," a letter to General Awari with his reply, a document issued from the office of the Hindustan Red Army and two forage caps, among other articles. Gulabrao (P.W. 23 ), constable, was deputed by Ramsing (P.W. 38), Sub-Inspector, to keep watch over the house from midnight until 7 A.M. next day when he was relieved by Santosh (P.W. 40) constable. At about 8 A. M., when Santosh was talking to Hiralal (P.W. 37), constable, a woman who was carrying s small bundle emerged from the house and while Santoshrao pursued her Hiralal kept watch on the house and noticed that a boy who arrived on a bicycle and entered it came out with two bags (articles J-50 and 51) which he placed on his bicycle before proceeding on it towards Nagpur city. When he disregarded Hiralal's order to stop, Hiralal followed him first on foot and then in a rickshaw up to the gate of Nawab Khujji's bungalow where the boy abandoned the bicycle and the bags. Hiralal directed a passer-by to keep guard over these articles while he went to summon the police. He was met on the way by Abdul Rashid (P.W. 25), head constable, and Ingole (P.W. 36), Sub-Inspector, and on their return to the gate they seized the bicycle and the bags which were found to contain five pistols and revolvers, nine fused, coils, black gunpowder, 33 leaden balls, detonators and gelignite. The police party then went to the house in question where an earthen pot containing a bottle of some white substance and a packet of some sticky substance was discovered under the staircase. The house was then locked up and the police decided to make a thorough search of it. This began next day at about 9 A. M. in the presence of Santosh Prasad (P.W. 21), Abidali (p.w. 26) and Imranali (P.W. 29). When the compound was dug up a wooden box, containing 28 coils of fuses, four gelignite cartridges and four detonators, was found and not far from it a flowerpot covered by an iron pan which contained Maganlal's diary. B. R. Chourey was subsequently convicted and sentenced by the S. 30 Magistrate, Nagpur, to five years rigorous imprisonment under Defence of India Rules 38 (1) (a) and 38 (5), three years rigorous imprisonment under S. 19 (f), Arms Act, five years rigorous imprisonment under S. 20, ibid, five years rigorous imprisonment under s. 4, Explosive Substances Act, and to the same term under s. 5, ibid, all sentences running concurrently. His appeal to this Court was dismissed on 9th November 1944.

7. Jagmohan Prasad (P.W. 49), who had gathered from Maganlal's diary that Dr. Vaze was in touch with him and in possession of some of the missing muskets, had questioned Lila, an accused in the Chourey case, and learned from her that Dr. Yaze had before his arrest given Maganlal's arms and ammunition to his patient and relative Durga Bai Joshi who subsequently passed them on to Martand Jog (P.W. is) in September or October 1942. The latter had kept the bayonet No. 539 and 75 cartridges in his house and thrown the four muskets nos. 537, 539, 540 and 445 into a well in his compound. All of these articles were produced by him on 10th February 1943 and duly seized under memo. Ex. P-42. Musket No. 445 was, as already shown, one of the muskets removed from the police outpost in Nagpur on 13th August 1942 and muskets Nos. 537, 539 and 540 were three of the four muskets removed from the Maudha station-house on the following day. Dr. Vaze who was prosecuted thereafter, pleaded guilty and was on 12th April 1943 sentenced to undergo one year's rigorous imprisonment under s. 412, Penal Code, by the First Class Magistrate, Nagpur.

8. Maganlal's diary, of which-Ex. P-54 is a translation, covers his activities from 22nd October to 12th December 1942 and shows that on 23rd October 1942 his three companions and he, disguised as a Muslim, left Nagpur where he was staying with B. R. Chourey, as the police searches were intensive and Baliram had been apprehended with a musket from Maudha. After some days the party, alarmed by the news that Dr. Vaze had been arrested and his compounder Rambhau had disappeared and by the fact that these persons had much of their saman, decided to return to Nagpur, Madho (who has not been traced) was sent in one direction while the other three repaired a pistol and set out for Nagpur. A halt was made at a village en route as V. S. Dandekar had once told them that shelter could be obtained there, but the kamdar had not received a message from the owner and refused to harbour the trio. Dandekar's house in Nagpur was reached in due course, but they were unable to gain contact with one of their friends and returned for the night to jungle not far from Nagpur. When they eventually met him, the situation arising from Dr. Vaze's arrest was discussed and it was decided not to stay in Nagpur but to " start.....work on the Bombay line, " an operation for which, the diarist recorded, all the instruments were with him. Their travels then took them to a village not far from Wardha, Hinganghat and Sindi where Maganlal suggested to his companions that after the railway line, station and wires had been dealt with, the Sindi station-house should be raided. One of them was sent to Nagpur to bring rifles but on return he pointed out that their custodian would not deliver them to anybody other than him (Maganlal). As the Congress leader in the village was also far from enthusiastic and his followers shared his apprehensions, the diarist and his associates returned to Nagpur on 8th November 1942 and he stayed in a house in the second story of which bombs were being manufactured. The receipt of information, however, that bombs carried by two young men on bicycles had exploded on Telankheri road and Ramrao, one of their accomplices, had confessed renewed his fears and after a brief visit to his wife he took up residence in the country-side. On one occasion he returned to Nagpur in order to meet B. R. Chourey and other workers and with them planned the programme for the future. Two or three weeks later there was another move to Nagpur and during his stay there he met Madhorao to whom he gave funds.

9. A similarly written diary, of which Ex. p-61 is a translation, was recovered on 28th July 1943 from a bag which was found in the room where Maganlal was arrested in Bombay on that date. It opens with a reference to 22nd July 1943 when Sewakram Gupta and he travelled together from Calcutta to Gwalior where they stayed in the dharamshala at which on 25th July 1943 Maganlal and a friend of his had " some talk about the work." In argument Maganlal's learned advocate did not address us in any detail with regard to the finding that the diaries were in that appellant's script. Mr. Dixit (P.W. 48), Government Examiner of Questioned Documents, gave adequate reasons for his opinion that they were and we have no hesitation in concurring in the finding of the learned Additional Sessions

Judge on this point. Mr. Dixit did not claim infallibility for his opinion, but Maganlal made no attempt to adduce evidence in rebuttal and the contents of the diaries clearly indicated that the scribe must have been Maganlal and no other person. The contents of Ex. P-54 also demonstrated his association with V. S. Dandekar, B. R. Chourey, Dr. Vaze, his compounder Rambhau and Baliram and revealed that his departure from Nagpur was because of the fact that Baliram had been arrested with a musket which he thought was one of those captured in Maudha and that his return to Nagpur was compelled by the fact that Dr. Vaze and Rambhau had much of their material. This diary also made it cleat that he had a pistol in his possession, occupied a house in which bombs were manufactured and was planning the destruction of railway stations, lines and cables as well as police station-houses.

10. The diary which had been concealed in B. R. Chourey's compound contained material to show that he lived in that house and among the extensive discoveries at that place there were not only weapons and explosive substances but the photographs (articles 0-30 and 0-81) of Maganlal. Another photograph (article N) which was seized on 9th August 1942 from the office of the Hindusthan Red Army at Umrer is a group photograph of the Hindusthan Red Army and in it are Shamlal Nai, Maganlal and Shyamnarayan Kashmiri standing side by side while V. S. Dandekar is several rows behind them. "When Shyamlal was arrested on lath July 1943 at Bombay by 0. R. Pradhan P.W. 4, Sub-Inspector, the half torn envelope Ex. P-58A, the letter Ex. P-58-B in it and the printed leaflet Ex. P-580 were found in his pocket. The envelope had been despatched by post from Calcutta in July 1943 and the untorn part of the address which was written in green ink and the postal seal gave the clue to the post office viz., Kalbadevi from which delivery was to be made. The letter which was also in green ink was written by Maganlal and Gupta to Prem, the name given by Shamlal Nai to the police at the time of his arrest, and it contains a reference to Maganlal's despatch to him of a leaflet which had been issued in Na i.e., Nagpur. This leaflet was presumably Ex. P-580 and the contents of that exhibit are as follows :

"Warning to the C. P. Government and the Police by the free soldier Ka. Maganlal Bagdi. Tarachand and C. P. Police.

Salutation.

Indian brothers,

The 9th August 1942 -will be written -with golden letters in our National Movement, specially the History of India. We came out for breaking the chain of mother India and became free on 9th of August. The dishonest English (men) are living in India against our wish. The Reverend Mahatma Gandhi asked them again and again to leave (or -quit) India, but this daeoit and thief English who has entered for the last one hundred and fifty years did not quit (India). It is our duty to make our slave country independent and to drive away these dishonest persons from here.

Brothers, the brutal atrocities, which these dishonest persons have done on the Indians from 9th of August till now, are thousand times greater than those of the fascists. That description of atrocities has not been produced before the public today. But the All India Congress Committee has appointed a Committee. I am preparing a report of the informations which have come to me as secretary of that Committee. As soon as it is prepared

it will be published from my Head Quarters before the public in the shape of service.

In my eyes the C. P. Police and the Government is inefficient. The police of this place tried hard to arrest me, but it did not meet with success. I know this also that Mr. Tarachand (City Superintendent) has undertaken to arrest me. It is welcome. X am ready at all times. You can arrest me. But, Mr. Tarachand why do you harass the poor and innocent? So far as I have information you have tried to harass much the relations, mothers and sisters of the soldiers of the Indian Bed Army. If you have courage and if you have strength why do you not arrest me? I know this also that in order to arrest me you are running towards Bombay, Madras, Poona, Marwad, Delhi and Bhopal. But this free soldier is not going to leave his Subha (probably circle) and go away, because I have to acquaint myself with the C. P. Government.

Appeal to the Public.

Brothers I Have you become nervous? Do you not wish to see India independent? You ought to know very well that at this time the British Empire is on the way of dying. On one side Germany and Japan are destroying these and on the other side the entire world is rising against them. At this time if the Indian brothers resolve in their mind they can at once free India from bondage. Will you deceive Reverend Mahatma Gandhiji at such a time ? Will you forget the brave persons who sacrificed themselves ? Brothers, will you forget him who received bullets on his chest ? Now the time is nearing. You shall have to apply strength once again. Make preparations. I assure you that victory is yours. You have no need to be nervous. Such condition is approaching and if three and a half lac public of Nagpur takes it in heart the Government of Nagpur Subba cannot stand before you. When time comes I shall not remain at all without giving an account of myself to the C. P. Government,

Published from the third Head Quarters,

Yours, free soldier,

Azad Press Maganlal Bagdi,

Long live revolution.

Long live Indian Bed Army. Long live free India."

11. This document indicated Maganlal's connection with the Hindusthan Red Army, his revolutionary sympathies and his plans for the removal of the Government established by law in India. The letter Ex. P-58B revealed the connection between Shamlal Nai, Maganlal and Babulal Gupta who was arrested as an absconder with Maganlal at Bombay on 28th July 1943 when a fountain pen containing green ink was found on his person. He (Babulal) was prosecuted with these two persons, but the prosecution was withdrawn in the committal Court following an application by the Public Prosecutor in which it was stated

that the evidence against him was insufficient. He was, however, clearly an associate of Maganlal and it may safely- be presumed that he was the Gupta referred to in the later diary {vide Ex. P-61) as that appellant's companion in his journey from Calcutta. That diary significantly ended with a reference to 25th July 1948 when they were at Gwalior and the probability is that an account of the remainder of the journey was not recorded as Maganlal was travelling for the next two days to Bombay where he was arrested on 28th July 1943.

12. The case relating to Maganlal's activities prior to the Maudha incidents will now be examined. It was clear from the evidence of G. R. Dixit (P.W. 24), Sub-Inspector, that Maganlal and Shamlal were organisers and officers of the Hindusthan Red Army which came into existence in April 1939 in Nagpur and consisted at the end of 1941 of 150-200 members. Its activities and uniforms have been described in para. 3 of this judgment. A branch which had been formed in Umrer also in 1939 and mustered about 160 in August 1942 was under the local control of B. R. Tikale (P.W. 41) who acted as Secretary, but the evidence of Timizzuddin Ahmed (P.W. 46), constable, showed that Maganlal and Shamlal used to visit that place wearing the uniforms of officers of that organisation. It was further evident from the Camp-book ex. P-13 maintained by Tikale that there was a camp for such officers from 15th to 30th May 1942 at which Maganlal and Shamlal held military ranks and were members of the Court-martial Committee and Maganlal and V. S. Dandekar gave lectures on "How to organise for political purposes." On 9th August 1942, the date on which the Army was banned, a red flag, books, uniforms and equipment including a bugle were seized from the office and the dak book article P-14 showed that the branch had dealings with the head office at Nagpur to which periodical reports were sent. Meanwhile, on 23rd September 1939, Maganlal had addressed a public 'meeting attended by about 200 persons at the New Ideal High School, Umrer, at about 3-30 P. M. and another one at about 6 P. M. in Mangalwari at that place. Shamlal had sung a song, the opening verse of which was "Paida Huye Ho To Gulam Ajad Hoke Mar." Abbas Ali (P.W. 12), head constable, and Tamizzuddin Ahmed (P.W. 46), constable, attended both meetings and the latter recorded notes of Maganlal's speeches (vide Ex. P-32). He then read out these notes to Abbas Ali who prepared the report (vide Ex. P-31) for transmission to the office of the District Superintendent of Police at Nagpur. Maganlal in the course of his speeches on that occasion suggested that the Tahsildar, Naib-Tah3ildar and Police officers at Umrer should be taken into custody and replaced by themselves. He also stressed his resolve to assail the Government which was encircled on all sides, counseled his listeners to join the Red Army and told them that he would inform them when the attack was to be made.

13. A public meeting attended by about 200 persons was held under the auspices of the Hindusthan Red Army under the Presidentship of V. S. Dandekar at 7 P. M. on 25th June 1940 in Chitnavis Park, Nagpur, and was attended by Mr. Mohammad Ikram (P.W. 17), Naib-Tahsildar, and Mr. G. R. Dixit (P.W. 24), Sub-Inspector, who respectively recorded the notes (Exs. P-44 and P-79) from which they subsequently prepared the reports (Exs. P-45 and P-80). Shamlal was introduced to the meeting on that occasion as the man whose house had been searched for a bomb and Maganlal in his speech advised his audience to terminate the rule of the British who were embroiled with Germany. For this he was sentenced to undergo 1 1/2 years rigorous imprisonment by the Additional District Magistrate, Nagpur, under Defence of India Rule 38 (5) and in appeal the conviction was maintained but the sentence was reduced to 9 months rigorous imprisonment. Before adverting to the evidence regarding the appellants' participation in the attack on the Maudha station-house, we propose to resolve a question raised as a result of our decision in ('45) 32 MANU/NA/0091/1944 : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218 I.C. 294, Baliram Tikaram v. Emperor. In that case at page 163 we held that the evidence of the witnesses who could not be subjected to effective cross-examination in consequence of the destruction of the statements recorded by the investigating officer under s. 162, Criminal P. C, was not admissible and proper for consideration. The learned Advocate-

General while conceding that such evidence was not proper for consideration, questions the correctness of the proposition as to its admissibility. His argument is that as the persons were competent witnesses under s. 118, Evidence ¯Act, their evidence could not be treated as inadmissible.

14. The learned Advocate-General's argument would have great force if the admissibility of evidence were solely dependent on the competency of the witnesses. That is however not so. A witness may be competent in view of s. 118, Evidence Act, yet his evidence may be inadmissible if it does not speak to facts but to opinions, inferences and beliefs (S. 45) or if it refers to what the witness had not seen and heard (S. 60), i.e., hearsay, or when the witness happens to be a police officer and he seeks to prove a confession made to him (s. 25). Coming to the particular question before us, Ss. 137 and 13S, Evidence Act, clearly show that cross-examination is as essential as examination-in-chief for eliciting from a witness material which is to constitute evidence. In ('67) 9 W. E. 587, Gorachand Sircar v. Earn Narain at page 588 it was observed:

Now it is certainly the right of every litigant, unless he waives it, to have the opportunity of cross-examining witnesses whose testimony is to be used against him.... It follows that evidence given when the party never had the opportunity either to examine or to cross-examine, as the case may be, or to rebut by fresh evidence, is not legally admissible as evidence for or against him, unless he consents that it should be so used.

In ('23) 10 A.I.R. 1923 Pat. 53 : 24 Cr. L.J. 595 : 73 I.C. 339, Moti Singh v, Dhanukdhari Singh at page 597 it was observed:

Now, it is an elementary principle of law that an examination-in-chief of a witness, without an opportunity being offered to the opposite party to cross-examine, is not legally acceptable. Therefore the evidence of the witness in the present case was not such as upon which the Magistrate could act.

The rule in England is in no way different as will appear from S. 831 at page 756 of Vol. XIII of Halsbury's Laws of England (Hailsham Edition). There it is said:

Any party is entitled to cross-examine any oilier party or his witnesses, in the same litigation, and no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination.

This aspect of the importance of cross-examination comes into bold relief in S. 83, Evidence Act. In ('30) 17 MANU/PR/0234/1929  : A.I.R. 1930 P.C. 79 : 52 All. 1 : 57 I.A. 14 : 122 I.C. 8 (P. C), Dal Bahadur v.Bijai Bahadur at p. 81 their Lordships of the Judicial Committee of the Privy Council rejected as not admissible a previous deposition of a witness on the ground that when the witness had been examined, the party sought to be affected by his previous deposition had not the opportunity or right to cross-examine him.

15. In the present case, as in the previous one, there is no dispute as to events that happened in Maudha on the critical day but only as to the participation or presence of the accused persons in the unlawful assembly which committed the crimes of attempt to murder and of burning and looting the police station. If on this point the statements recorded by the police in the course of investigation were the only material for cross-examination and that was not available to the accused in consequence of their destruction or otherwise, it must be said that the accused had no opportunity to examine the

witnesses on the particular point and the evidence bearing on the point would, therefore, be inadmissible. But it must be noted that in ('45) 32 MANU/NA/0091/1944  : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218 I.C. 294, Baliram Tikaram v. Emperor the evidence of some witnesses was held inadmissible not because the notes of their statements were destroyed but because their destruction resulted in depriving the accused of the opportunity of cross-examination. Hence, the main point for consideration is whether in regard to any particular witness the accused has been deprived of opportunity for cross-examination by reason of the absence of the witness's previous statements to the police. If there is on the record any statement by any witness to the police, particularly if it purports to be based on personal knowledge, that statement can -well be used by the accused for cross-examination and if he omits to avail himself of it he cannot be heard to say that he was denied the opportunity to cross-examine the witness. It is on this principle that in the above-mentioned case this Court had given an opportunity to the accused to cross-examine Sheikh Daud with the aid of the report which he had made to the police (see at p. 171). The evidence of Gaurishankar (P.W. 6) would accordingly be admissible for the reason that his earliest recorded statement was available to the accused for the cross-examination of that witness and it could not be said that the police had deprived them of their material for that purpose. The evidence of Shankar (P.W. 46) will be discussed hereinafter, but that of Laxman (P.W. l), Sahedeo (P.W. 2) and Nilkanth. (P.W. 8) will, for the reasons given above and for those stated in ('45) 32 MANU/NA/0091/1944  : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218 I.C. 294, Baliram Tikaram v. Emperor in which they were also examined as witnesses, be excluded from consideration.

16. It was strenuously contended that Gourishankar's report (ex. p-7) which was recorded on the afternoon of 17th August 1942 was not a first information report, as it had been preceded by reports made by Abdul Khalique, constable, and Mendulal (P.W. 35), Sub-Inspector, to the District Superintendent of Police at Nagpur on 15th or 16th August 1942 and by a report by Gourishankar himself and Gajanan Prasad to Jamshedkhan (P.W. 50), station-house officer, on 16th August 1942. This contention, however, lost sight of the conditions which prevailed in Maudha immediately after the attack on the station-house. Jamshedkhan was unable to return there until 9-30 p. m. on 15th August 1942 and for the major part of the next two days his time was fully occupied in restoring law and order, pacifying the terror-stricken villagers and accompanying his superior officers to Baroda. The machinery of Government was then almost in a state of suspension and in ('44) 31 MANU/BH/0050/1943  : A. I. R, 1944 Pat. 211 : 23 Pat. 139 : 216 I.C. 142, Mahant Dukhandas v. Emperor a delay of 11 days in recording a first information report during contemporaneous disturbances was condoned. Here the delay was considerably less and it is evident that when the head constables were first interrogated, the station-house officer was no-t acting as an investigating officer in pursuance of a first information report made to him. The condition of the bead constables also must not be overlooked. As they were suffering from gunshot wounds, any statement from them soon after the shootings was likely to be somewhat vague; and in ('23) 10 A.I.R. 1923 Pat. 550 : 2 Pat. 517 : 73 I.C. 561, Gansa Oraon v. Emperor, as also in ('42) 29MANU/OU/0024/1941  : A.I.R. 1942 Oudh 60 : 43 Cr. L.J. 115 : 197 I.C. 121, Qamrul Hasan v. Emperor and ('31) 18 MANU/WB/0247/1931  : A.I.R. 1931 Cal. 745 : 58 Cal. 1312 : 135 I.C. 289, Manimohan Ghosh v. Emperor, the view taken was that information of that kind cannot be treated as coming under S. 154, Criminal P. 0., so as to make it incumbent on the officer in charge of the police station to start an investigation and he may reasonably require more information before so doing. The fact that reports had been made prior to 17th August 1942 to police officers other than Jamshedkhan does not alter the position. A Division Bench in ('36) 23 MANU/BH/0110/1935  : A.I.R. 1936 Pat. 11 : 160 I.C. 181 : 36 Cr. L.J. 235, Emperor v. Lalji Rai held as follows:

Where a report about the commission of an offence is given to the police at two different places by two different persons, and one is earlier in point of time than the other, the later report is not a statement made to a police officer in the course of investigation but is an independent first information report and therefore can be used in evidence by the prosecution.

17. A similar view was taken in ('40) 27 MANU/UP/0243/1939  : A.I.R, 1940 All. 291 : 188 I.C. 649 : 41 Cr. L.J. 647, Emperor v. Aftab Mohd. Khan and in ('35) 22 A.I.R. 1935 Pesh. 165 : 159 I.C. 890 : 37 Cr. L.J. 225, Mir Rahman v. Emperor. It was also patent in the case now before us that the investigation had not begun before the report ex. P-7 was recorded and that, on the other hand, the investigation was initiated by it.

18. Even if, however, it could not be held to be a first information report, it could be regarded as a statement made to a police officer in the course of an investigation and unless otherwise incurably inadmissible could be made available to the accused to contradict its maker. Its inadmissibility was claimed to be due to the fact that as it was signed by Gourishankar it contravened the mandatory requirements of s. 162 (l), Criminal P.C. In 14 A.I.R. 1927 P. 0. 44 : 5 Rang. 53 : 54 I.A. 96 : 100 I.C. 227 : 28 Cr. L.J. 259 (P. C), Abdul Rahman v. Emperor, however, their Lordships of the Judicial Committee of the Privy Council pointed out that the mere breach of a provision even though mandatory cannot be said to be an illegality necessarily vitiating the proceedings and unless it is accompanied by any probable suggestion of any failure of justice having been thereby occasioned, it will not warrant the quashing of the conviction. In the face of this pronouncement, it is no longer open to Courts in India to hold that the mere fact that a mandatory rule of procedure has been broken is enough to vitiate the trial or proceeding; and as was observed by one of us in ('45) 32 MANU/NA/0091/1944  : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218 I.C. 294, Baliram Tikaram v. Emperor, the sole test is whether there has been a failure of justice. A finding in that case that there had been such failure was founded on the fact that the defence was deprived of material with which fully to cross-examine certain prosecution witnesses, but Ex. p-7 in the present case provided abundant material for that purpose and it is clear that the defence was in no way prejudiced by the fact that it was signed by Gourishankar. A similar view, moreover, had been taken by a Division Bench of this Court in Criminal Appeals Nos. 140 and 181 of 1944, decided on 17th July 1944, in which ('33) 20 A.I.R. 1933 Sind. 188 : 141 I.C. 879: 34 Cr. L.J. 256, Abdulla Khan v. Emperor and ('34) 21 A.I.R. 1934 Sind 78 : 150 I.C. 917: 35 Cr. L.J. 1170, Muhammad Panah v. Emperor had been followed.

19. We are, however, as stated, of the view that Ex. P-7 is a first information report, and although it is not a piece of substantive evidence it can be used not only to contradict but to corroborate the statement made subsequently by Gourishankar who was, as we have held above, a competent witness in virtue of the provisions of s. 118, Evidence Act. That his evidence was substantially corroborated by Ex. p-7 is clear and it seems to us that if this report was the result of collaboration between the investigating officer and him it would have contained a specific reference to Shamlal Nai. This head constable was certain that Maganlal, who was accompanied by his co-appellant Mallu and others, had shot him in the knee when he was in the vicinity of the lamp post in front of the station-house and that these appellants and their companions had broken into the station-house and removed furniture and records from it before setting fire to all of them. He had also noticed prior to this that there was a big crowd in which a Congress flag was carried and he heard shouts of "Hindus-than Azad Hai"

20. In ('45) 32 MANU/NA/0091/1944  : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218 I.C. 294, Baliram Tikaram v. Emperor we had held that that part of Shankar's (P.W. 9 in that and P.W. 43 in this case), evidence relating to what he had seen at the Kanhan bridge

was proper for consideration, as his statement to the investigating officer concerning that aspect of the incident had been recorded and a copy of it was available to the defence. Here the position is the same and we find from scrutiny of this part of his evidence that he was taken to the Kanhan bridge by Maganlal and Shamlal, who were armed, and others and that this group had with them the four muskets removed from the station-house.

21. It was, therefore, abundantly clear that Maganlal was in Maudha on that day and this finding is reinforced by the fact that in the cash book (Ex. p-2B) duly seized from Chindhooji, President of the Sanrak. shah Dal Committee. On 20th August 1942, there is a debit entry dated 14th August 1942, i.e., the date of the occurrence, which shows that Es. 300 in cash had been given to Premlalsao for payment to Maganlal. Our finding was also strengthened by the circumstances that he made no attempt whatever to show either that he was in Bombay or not in Maudha on that date and that he shortly afterwards absconded and avoided detection for almost one year. During part of that period he kept a diary and in it disclosed his fears on learning that Baliram had been arrested with a musket from the Maudha station-house. The musket was actually one from the police outpost at Nagpur, but Baliram was also found to have been in possession of 2 great coats, oil can and pull-through which had been removed from the Maudha station-house on the date of the occurrence. The diary also revealed the writer's apprehensions on learning of Dr. Vaze's arrest and Dr. Vaze had, as adumbrated, subsequently pleaded guilty to the possession of a musket removed from the Nagpur police out-post, three muskets and a bayonet removed from the Maudha station-house and 76 cartridges. As 5 cartridges were recovered from Baliram, the total recovered from Dr. Vaze and him was 80, significantly the exact number which had been removed from that station-house. The diary also-revealed that much of Maganlal's saman i.e., arms and ammunition was with Dr. Vaze that after Chourey and he had discussed the situation arising from Dr. Vaze's arrest they had decided to start operations on the railway line to Bombay and that there was a project to raid the station-house at Sindi. The illation that the diarist was a person who would be likely to have taken part in the attack on the station-house at Maudha on 14th August 1942 when he was in that village is clear and there is, as we have noted, the direct evidence of Gourishankar to show that he shot him, as well as that of' Shankar to show that he was armed and with others in possession of the four police muskets. "We can, moreover, discover no reason why these police officers should have falsely incriminated him and it seems to us that if the police had schemed to involve him, Mendulal (P.W. 35), the officiating station-house officer, would have testified to his presence on that occasion.

22. Mallu was admittedly in Maudha at that time but he made no attempt to show that he was, as he claimed, occupied with the Sanrahshah Dal Committee, of which he was a member, distributing grain from 3-30-7-30 P. M. His examination was so marked by tergiversation that although he admitted his membership of this Committee, he feigned, ignorance of the manner and time of its formation as also of its records and resolutions. He also feigned ignorance of everything which happened in his village on 14th. August 1942. Ignorance of this kind was-incredible and it was significant that no questions regarding his grain distributing activities was put to Nilkanth (P.W. 8), another member of the Committee. His statement that he stayed at Maudha for 8 days after the occurrence before taking his family to the house occupied by his brother in Nagpur was manifestly untrue as his name appeared in the first information report (ex. P-7) and Jamshed Khan (P.W. 60), who was bound to arrest him, if traceable, on or after 17th August 1942 the date on which that report was made, searched for him without success in his house and that of his relative in Maudha as well as in that of his relative in Nagpur. All of these facts and circumstances demonstrate the truth of Gourishankar's averment that Mallu was one of the mob which had set fire to the station-house, its furniture and records and removed the muskets. This averment was corroborated by the first information report and this

appellant was unable to specify any particular or adequate reason why Gourishankar should have inculpated him without justification in the present case.

23. We have, therefore, no hesitation in maintaining the convictions of Maganlal under S3. 307, 436, 149, 397, 353/147, Penal Code, and Defence of India Rule 35, and the convictions of Mallu under ss. 307/149, 436./149, 895 and 147, Penal Code. The sentences awarded were not in all the circumstances of the case either harsh or excessive and they are to run concurrently. We now turn to the question of the propriety of the convictions under S. 121, Penal Code, which runs as follows:

Whoever wages war against the Queen, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or transportation for life, and shall also be liable to fine.

This section is remarkable for the fact that it specifically provides for the offence of abetment of waging war. Under Expln. 2 to S. 108, Penal Code, the offence of abetment is constituted even when the act abetted is not committed and, as was pointed out in ('10) 34 Bora. 394 : 5 I.C. 854, Emperor v. Ganesh Damodar Savarkar, while under the general law as to abetment a distinction is made for the purposes of punishment between abetment which has succeeded and abetment which has failed, s. 121, Penal Code, does away with that distinction and deals equally with an abettor whose instigation has led to a war and one whose instigation has taken no effect whatever. Another unusual feature is that in virtue of the provisions of s. 94, ibid, compulsion is not a defence to a charge under s. 121, although it might well according to the circumstances operate in mitigation of punishment : cf. ('31) 18 A.I.R. 1931 Bang. 235 : 9 Bang. 404: 135 I.C. 849 : 33 Cr. L.J. 205 (S.B.), Aung Hla v. Emperor.

24. Relying on the observations made by Jenkins C. J., in ('10) 37 Cal. 467: 7 I.C. 359: 11 Cr. L.J. 453, Barindra Kumar v. Emperor at p. 506 it is contended that the interpretation placed by the English Judges upon the English Law of treason should not be followed in India. This contention overlooks the fact that the learned Chief Justice's observations referred to the argument advanced in that case that "it was intended by the framers of the Indian Penal Code to reproduce the English Law of Treason in its entirety, that is to say, not only the Statute Law but also the interpretation placed upon it by the cases." The meaning of the observations becomes clear at p. 507, ibid, where the learned Chief Justice finds that collection of weapons for a far-off revolution amounts, though not to waging war, to a conspiracy to wage war. What he really laid down was that the words 'wages war' must be understood in their ordinary sense and that overt acts such as the collection of arms and ammunition for that purpose do not amount to waging war.

25. In the present case we are only concerned with the words 'levying war' occurring in the English statute and the explanation by the English Judges of their meaning. As the term 'wages war' is acknowledged to be a substitute for 'levying war' in the English Statute of High Treason viz., Statute 25 Edward III, C. 2, it will be fitting to examine some English authorities in the matter. In (1781) 21 State Tr. 486, Rex v. Gordon at pp. 644, 645 Mansfield C. J., laid down :

There are two kinds of levying war : one against the person of the King : to imprison, to dethrone, or to kill him; or to make him change measures, Or remove counselors : the other, which is said to be levied against the majesty of the King, or, in other words, against him in his regal capacity; as when a multitude rise and assemble to attain by force and violence any object of a general public nature; that

is levying war against the majesty of the King; and most reasonably so held, because it tends to dissolve all the bonds of society, to destroy property, and to overturn Government; and by force of arms, to restrain the King from reigning, according to law... Lord Holt C. J. in Sir John Friend's case (1688-1700) Holts Reports 681, 682 says, 'if persons do assemble themselves and act with force in opposition to some law which they think inconvenient, and hope thereby to get it repealed, this is a levying war and treason'... The question always is, whether the intent is, by force and violence, to attain an object of a general and public nature, by any instruments; or by dint of their numbers. Whoever incites, advises, encourages or is in any way aiding to such a multitude so assembled with such intent, though be does not personally appear among them, or with his own hands commit any violence whatsoever, yet he is equally a principal with those who act, and guilty of high treason.

26. That was in 1781 and in 1820 Lord President Hope in his charge to the jury in (1820) 1 State Tr. (N. S.) 1353, Rex. v. Wilson at p. 1354 observed :

The circumstances necessary to constitute a levying of war is not that there shall be a regular trained force, nor a regular army; and, indeed, from the nature of the thing in common sense, I am sure it must strike you that, except where a foreign enemy invades the country, war never can be levied in that manner in the commencement of an insurrection. If an insurrection is to be raised they must provide arms, and they must get them an the best manner they can; they will be ill-disciplined and ill-arrayed at the first; but as the insurrection gains ground these things may be acquired and discipline learnt-Like to our unhappy rebellion in 1745. How did that begin, with that poor deluded Prince who landed at the head of, I believe, not many more men, or better armed or clothed, than you have at this meeting at Strathavant ? When he landed upon the coast he was at the head of nobody but the boat's crew Who landed him, and some foreign officers and he was joined by a few half-naked Highlanders. Now I state to you as law, and you will see it is sense, that he and his followers, from the highest to the lowest-every one of them was as guilty of treason in the act of first joining him as they were at the last liour.... In short, what is a treasonable number, as the counsel for the Crown very properly put it ? What is the quantity of arms persons must have ? The offence is not in their numbers, not in their force, but, in the language of the law and all the authorities, it is in the object and purpose which they have in view. If they rise to effect a general public purpose by force and numbers, that object -renders the rising treason, be the number great or small. And, indeed, gentlemen, how is an insurrection to be raised, how is a regular army to be got together, but by the march of small numbers to the place of rendezvous? How are people to raise an insurrection ? A great town may turn out in great numbers, but if people in the country are to rise, how is it to be effectuated, but by each parish arming its inhabitants, and marching to the place of rendezvous ? And then, as they all assemble, that is admitted to be treason. But it is less treason when they march with the same purpose ? I lay down, as the undoubted law of the land, that the smallest body which rises in arms to effectuate a general purpose (they may have more or less hopes of success arising out of their number) is treasonable, and constitutes a levying of war.

27. In (1820) 1 State Tr. (N. S.) 765, K. v. Hardie, a case decided in the same year, the same learned Judge made the following observations:

It is the law that, in order to constitute a levying of war against the King, it is neither the number engaged, nor the force employed, nor the species of weapons with which they may be armed, that will constitute the overt act of treason. To prove such levying of war it is the purpose and intention, the object which they have in view, which congregates and assembles them together, -which gives them the impulse in their arming and in their rising; it is that which constitutes treason, and distinguishes the crime from that of riot, or any other rising for any private purpose that can be imagined; and the law is positive, and it has been so laid down by all our writers, and found by Judges and juries again and again, that, if a rising and insurrection be for a public purpose, to resist the King's authority, to compel him to do or to refrain from doing what it is part of his prerogative to do or not to do as he thinks proper, if it be to compel him to change his measures and councils, it amounts to treason.

28. Then in 1839 Tindal O. J., in charging the Grand Jury in (1839) 4 State Tr. (N.S.) 93, R. v. Forst laid it down that:

An assembly of men, armed and arrayed in a warlike manner with any treasonable purpose, is a levying of war, although no blow be struck; and the enlisting and drilling and marching bodies of men are sufficient overt acts of that treason, without coming to a battle or action. And, if this be the case, the actual conflict between such a body and the Queen's forces must, beyond all doubt, amount to a levying of war against the Queen.... and, as has already been adverted to, it is quite unnecessary to constitute the guilt of treason that the tumultuous multitude should appear to be accompanied with the pomp and pageantry of war, or with military array. Insurrection and rebellion are more humble in their first infancy, but all such external marks of pomp will not fail to be added with the first gleam of success.... It may be proper to inform you, that in the case of treason the law knows no distinction between principal and accessory; all who partake in the treason incur the same guilt, and are liable to the same punishment; the treasonable design once established by the proper evidence, the man who instigated, incited, procured, or persuaded others to commit the act, though not present in person at the commission of it, is equally a traitor, to all intents and purposes, as the man by whose hand the act of treason is committed. He who leads the armed multitude towards point of attack, and then retires before the blow is struck; he who remains at home, planning and directing the proceedings, but leaving the actual execution of such plans to more daring hands; all these are equally guilty in the eye of law of the crime of high treason.

29. These authorities have been followed by the Courts in India and commentators on S. 121, Penal Code. In ('31) 18 A.I.R. 1931 Bang. 235 : 9 Bang. 404: 135 I.C. 849 : 33 Cr. L.J. 205 (S.B.), Aung Hla v. Emperor cit. sup. a Full Bench held as follows:

"When a multitude rises and assembles to attain by force and violence any object of a general public nature, it amounts to levying war against the King. It is not the number or the force, but the purpose and intention, that constitute the offence and distinguish it from riot or any other rising for a private purpose. The law knows no distinction between principal and accessory, and all who take part in the treasonable act incur the same

guilt. In rebellion cases it frequently happens that few are let into the real design, but yet all that join in it are guilty of the rebellion.

A deliberate and organized attack upon the Crown forces would amount to a waging of war if the object of the insurgents was by armed force and violence to overcome the servants of the Crown and thereby to prevent the general collection of the capitation-tax."

30. In ('44) 31 MANU/BH/0087/1943  : A.I.R. 1944 Pat. 58 : 22 Pat. 662 : 212 I.C. 266 : 45 Cr. L.J. 606, Jubba Mallah v. Emperor a Division Bench of the Patna High Court held;

"Although the offence of waging war against the King and committing a riot may often run into each other the distinction between them is clear.

Where the rioting or tumult is merely to accomplish some private purpose, interesting only to those engaged in it, not resisting or calling in question the King's authority or prerogative, then the tumult, however numerous or outrageous the mob may be, is only a riot. But wherever the rising or insurrection has for its object a general purpose, not confined to the peculiar interests of the persons concerned in it, but common to the whole community, and-striking directly against the King's authority, then it assumes the character of treason. The numbers concerned and the manner in which they were equipped or armed are not material.

Prima facie, persons who attack a police-station are guilty of rioting, and that if the Crown charges them instead with waging war against the King, it is incumbent on the Crown to show that there is an insurrection and not a riot, and that insurrection is for the accomplishment of an object of a general nature."

The Bench relying on a decision of a Full Bench of the Allahabad High Court in ('43) 30 MANU/UP/0018/1942  : A.I.R. 1943 All. 26 : I.L.R. (1943) All. 238 : 205 I.C. 113 : 44 Cr. L.J. 216 (F.B.), Salig Ram v. Emperor, which had followed ('33) 20 MANU/WB/0176/1932  : A. I.R. 1933 Cal. 186 : 60 Cal. 351 : 142 I.C. 351; 34 Cr.L.J. 345, Probodh Chandra v. Emperor, was also of the view that judicial notice may properly be taken of the facta that at or about the time the police-station in question was attacked, other police-stations and public buildings over a wide area else-where were also attacked by persons who professed to be members of the Congress party and to be acting on its behalf. The evidence as a whole in that case demonstrated that the mob which attacked the station-house was such that the men in it must have come from different villages and that the object of its leaders was to substitute for the authority of His Majesty the King-Emperor in the area round Minapur the authority of the Congress party or of those persons who were or professed themselves to be members of that party and acting on its behalf in that area; and the Bench in finding that the insurrection was one with an object of a general nature decided that any person who voluntarily joined in it must be deemed in law to have waged war against the King.

31. From these authorities the following principles emerge: (i) No specific number of persons is necessary to constitute an offence under S. 121, Penal Code, (ii) The number concerned and the manner in which they are equipped or armed is not material, (iii) The true criterion is quo ammo did the gathering assemble ? (iv) The object of the gathering

must be to attain by force and violence an object of a general public nature, thereby striking directly against the King's authority, (v) There is no distinction between principal and accessory and all who take part in the unlawful act incur the same guilt.

32. It is now necessary to apply these principles of law to the facts of the case in order to determine whether, first in respect of Maganlal, he had as charged waged war against His Majesty, the King Emperor of India, during the period 1939-1943, particularly on or about 14th August 1942 at Maudha, in the Central Provinces and Berar and thereby committed an offence punishable under s.121, Penal Code. Although the Hindusthan Red Army remained in existence from April 1939 until it was banned in August 1942, it was within that period clearly enough a military or semi-military formation, the object of which, to judge from its slogans and the speeches of Maganlal, was the overthrow of the Government established by law and the subversion of the forces employed to maintain law and order. On 12th August 1942, a police outpost in Nagpur was burnt down and on the following morning a constable was killed and a musket and ammunition were removed from it. One of these muskets was eventually recovered from Bahrain who was also found to be in possession of articles removed two days later from the Maudha station-house. Although Maganlal, as his diary shows, was under the erroneous impression that the musket was one of those removed from that station-house, this alone did not connect him with the attack on the police outpost in Nagpur. The facts, however, that he was at Maudha armed with a weapon, which to Shankar resembled a police musket, and that his diary divulged his great apprehension at the arrest of Dr. Vaze, who subsequently admitted his dishonest possession of 3 muskets and a bayonet from Maudha as well as a musket from the police outpost in Nagpur, would appear to indicate his connection with the attack on or the attackers of that outpost. Be that as it may, it was not only established that he had shot Gourishankar at Maudha, that the mob with him was shouting “Hindusthan azad hai" and that it burned the station-house down but that, as Shankar declared, the stonework of the Kanhan' bridge and the bridge itself had been damaged while trees had been placed across various parts of the road between the bridge and Baroda, a village in which Maganlal has property, and pits had been dug in it. Jamshed Khan had also noticed that the road had been badly damaged and blocked over a length of 7 miles; and it was clear that this had been done in order to sever communication with Nagpur.

33. The diary Ex. p.54 contained an admission of the writer's revolutionary activities -and an account of his plans for securing guns from Nagpur and for the depredation of the railway line, station, wires and the station house at Sindi. The printed leaflet issued by him while he was absconding demonstrated, as we have pointed out, his connection with the Hindusthan Red Army, his revolutionary sympathies and his designs for the elimination of the existing Government. This was borne out by his residence in one house where arms and explosives were concealed and in another in which bombs were manufactured. In face of all these facts and circumstances it is clear that the raid on the Maudha station-house was not the outcome of any personal rancour on the part of the raiders towards its occupants, but was "to attain by force and violence an object of a general public nature," namely, the substitution of another authority for the authority of His Majesty the King Emperor, The case was one in fact which was similar to the ('43) 30 MANU/UP/0018/1942  : A.I.R. 1943 All. 26 : I.L.R. (1943) All. 238 : 205 I.C. 113 : 44 Cr. L.J. 216 (F.B.), Salig Ram v. Emperor, cit. sup., and here too, as the evidence of Shankar showed, Maganlal was accompanied by others who were not residents of Maudha itself. At about that time other station-houses over a wide area were attacked and we are forced to the conclusion that the destruction of the Maudha station-house and the shooting of two of its head constables were part of a predetermined plan for the overthrow of Government at a time when it was involved in a world-wide conflict and the chances of its ultimate victory were far from evident. Maganlal's conviction and sentence under s. 121, Penal

Code, were, therefore, proper and they are maintained. His appeal is accordingly dismissed.

34. We do not consider, however, that Mallu should have been held liable under that section. It is true that he participated in the destruction of the station-house, but there is nothing to indicate any previous or subsequent connection between Maganlal and him and it would appear, on the other hand, that he and some of his co- villagers were carried away by Maganlal and his companions on the day in question. He resides in Maudha and unlike the Baroda and Nagpur persons who were closely associated with Maganlal cannot be said to have been fully aware of the object of the expedition to his village. It is true that there is no distinction between principal and accessory in an offence under s. 121, Penal Code, and that in the ('43) 30 MANU/UP/0018/1942  : A.I.R. 1943 All. 26 : I.L.R. (1943) All. 238 : 205 I.C. 113 : 44 Cr. L.J. 216 (F.B.), Salig Ram v. Emperor it was held that any person who voluntarily joined in the attack on the station-house must be deemed to have waged war against the King, but Jubba Mallah in that case was one of the leaders of the mob with a previous record of anti-Government activity and his two co-appellants were identified with him from the outset of the attack. The line of distinction is no doubt fine but it is there and consists of a difference between men who plan and execute a raid and those who swept along in the maelstrom of events and sudden frenzy participate in an offence of that kind. We would, for example, have been inclined to maintain Shamlal's conviction under s. 121, Penal Code, because of his previous activities and his presence at Matidha, but he was acquitted and no appeal against the acquittal has been filed by the Provincial Government. Mallu's conviction and sentence under that section are accordingly set aside.

35. On the authority of ('10) 37 Cal. 467 : 7 I.C. 359 : 11 Cr. L.J. 453, Barindra Kumar v. Emperor it is contended that the order of the Provincial Government under S. 196, Criminal P.C. was defective in that it was vague, roving and made no reference to the incident of the 14th August. That case, so far from supporting the contention, goes against it. In that case the authority under s. 196, ibid, to lay a complaint was given in these terms :

there is reason to believe that during a period commencing from about 16th October 1905 to date at Calcutta and other places the following persons have committed offences punishable under Ss. 121A, 122, 123 and 124, Penal Code, etc.

Jenkins C. J. declined to accept it as a valid authority for the reason that s. 196, Criminal P. C, did not contemplate giving "a roving power to determine under what sections of the chapter the proceedings should be taken." The authority was rejected not because the particulars of the offence were not stated but because s. 121 was not specified. It must be noticed that the authority was accepted as valid in regard to offences under ss. 121A and 122, Penal Code, not-withstanding the omission to state the particulars of the offences. The wording of the Provincial Government's authority in this case is as general as that in the cited case, viz.,

to make a complaint against the persons specified below for offences punishable under Ss. 121, 121A and 122, Penal Code, alleged to have been committed by them in the Central Provinces and Berar during the period from 1939 to 1943 (both inclusive).

Sections 121, 121A and 122, Penal Code, which were specified in that order relate to cognate offences which all come within the category of the offences against the State. These offences are set out in chap. viz. Penal Code, and s. 196, Criminal P.C. lays it down that the sanction of Government is necessary before a, prosecution can be instituted

under any section except s. 127 in that chapter. Here the sanction was, as regards the offences, stated in terms in no way different from those in the Calcutta case and the appellants could not have been in any doubt as to its significance and limits. Maganlal's appeal is, as stated, dismissed and Mallu's, subject to the setting aside of his conviction and sentence under s. 121, Penal Code, is also dismissed.