Shearer, J.:— The appellants in two of these three appeals are or were constables belonging to the armed police in the districts of Patna, Gaya and Monghyr. Ramanand Tewari, the appellant in the third appeal, was at one time a constable, but was dismissed in 1942. The appellants were prosecuted in consequence of the part taken by them in what has been described as a rebellion, but what may, I think, more accurately be described as a, mutiny among certain sections of the police force stationed in five districts of the province, which occurred, in the spring of 1947. Although Ramanand Tewari had ceased to be a member of the police force five years previously, he was the president of an association formed by constahles and havildars. This association or police union, as it was called, had not then been recognised by the Provincial Government, the reason, apparently, being that the Provincial Government was of opinion that no one should be permitted to be an office-bearer of such an association unless he were a serving member of the police force. On the 20th of March, 1947, a havildar Kamta Singh was called to give evidence in the court of Mr. Bishwambhar Chaudhuri the Sub-divisional Magistrate at Gaya. In consequence of some incident which occurred. Mr. Chaudhuri prosecuted this havildar for contempt of court and sentenced him to pay a fine of Rs. 100. Kamta Singh was unable to pay this fine immediately, and instead of giving him time to pay it, Mr. Chaudhuri committed him to jail. The constable or constables on duty in his court declined to remove the havildar, and thereupon Mr. Chaudhuri came down from the dais and himself removed the havildar to the hajat. Not unnaturally, perhaps, this incident aroused a, great deal of indignation among the havildars and constables at Gaya. At one of the meetings, which, took place in consequence of it, they decided to go on strike from the 23rd of March, 1947, and a telegram communicating this decision was sent by or on behalf of the police union to the Superintendent of Police. This telegram was despatched at about midday on the 21st of March, 1947. On the day following Ramanand Tewari arrived in Gaya and held consultations with the leaders of the havildars and constables and also with certain prominent Congress men in the town. At a meeting, which was held at 8 p.m on the 23rd of March, 1947, the decision to go on strike was affirmed, and at the roll call, which took place at 9 p.m that night none, of the constables in the police lines attended. At this time the communal situation in the town of Gava and elsewhere in the province was tense, and, largely in consequence of this, a number of constables belonging to the armed police were stationed at various points in the town. These constables abandoned their posts and returned to the lines, taking their arms and ammunition with them. The armed guards over the armoury and over the treasury remained, however, at their pots, and on the day following and indeed throughout the period of the strike the treasury was permitted to function. The armed police at two of the three outlying sub-divisions, namely, Jehanabad and Nawada, also went on strike. At Nawada they prevented the sub-treasury from functioning, but at Jehanabad, as at Gaya, the working of the sub-treasury was not interfered with. At about midday on the 24th of March, 1947, a sergeant, J.C Lacey, was sent by the sergeant major to the armoury to obtain ropes and handcuffs with which to bring under-trial prisoners from the jail to the court of session. Sergeant Lacey was permitted to open the armoury and take out the handcuffs and ropes, but, when he was about to take them away, he was stopped and was also compelled to hand over the key. On the evening of the 25th of March 1947, a public meeting was held in the Whitty Park at Gaya, which was addressed by Ramanand Tewari and by certain constables, among them one of these appellants. While this meeting was in progress, certain events, to which I will refer presently, were taking place in Patna and, in consequence of them, the action which the Provincial Government decided to take against Mr. Chaudhuri had no effect, and it had eventually to call in troops in order to recover possession of the armoury. At 5 p.m on the 27th of March 1947, an armed force consisting of officers and men of the Bihar Regiment surrounded the police lines and also the treasury. An armoured car was sent into the police lines and drew up at a distance of 35 yards or so in front of the armoury. The sergeant major of police, who was in the armoured car, climbed on to the top of it and called on the havildars and constables to surrender. One of them fired a shot at him which, fortunately went wide. The officer in charge of the armoured car then ordered his crew to fire a number of shots at the wall of the armoury, which they did. Certain constables, who were in possession of rifles and ammunition, had taken up positions in the armoury and also at some other points in the police lines. Some of there men fired on the troops, and the fire was returned, two constables being killed and one, who died later, being wounded. Eventually, after a desultory exchange of shots over a period of about an hour, the havildars and constables decided to surrender. According to Captain. Chet Singh Parwal, who was the officer in charge of the troops which surrounded the treasury, a number of constables had taken up their positions on the roof of the treasury and had trained their rifles on him and his men. These constables, however, did not open-fire, nor, in consequence, did Captain Chet Singh Parwal. At about 9 p.m, when these constables realised that the constables in the police lines had surrendered, they too agreed to come out and surrender. It seems clear that the resistance which as put up to the troops by the havildars and constables in the police lines was largely due to incidents which had taken place in Patna on the previous two days. In the afternoon of the 25th of March, 1947, the constables at Patna organised a meeting in the police lines at which, presumably, they intended to express their sympathy with the constables at Gaya and also, possibly, to decide to go on strike themselves. Mr. S.P Varma, the City Superintendent of Police, and several other police officers went to the police lines and attempted to prevent the meeting being held. Mr. Varma was assaulted, and those of the other police officers who went to his assistance were assaulted also. The District Magistrate of Patna decided to call in the assistance of the military, and troops belonging to a British regiment, which was stationed at Dinapur came to the police lines and trained machine guns on the constables assembled there. Those constables thereupon surrendered. Prior to this, however, one Barbamdeo Singh, a constable employed as the driver of a motor vehicle, succeeded in getting away from the police lines with his truck and also with some rifles and ammunition. Barhamdeo Singh and the other constables, who were with him in this truck, drove to Gaya, stopping on the way at the police-stations at Fatwa, Bakhtiarpur and Bihar, in order to tell the constables there what had happened and to call on them to go on strike also. Their purpose in going to Gaya was to get into communication with Ramanand Tewari. Ramanand Tewari decided to go at once to Patna and presumably, because he suspected that his truck had been followed, Barhamdeo Singh took another route via Bikram. Bihta and Maner. At each of the notice-stations the truck was stopped and Ramanand Tewari got out of it and urged the constables there to join in the strike. On reaching Patna, Ramanand Tewari drove, in the first instance, to the new police lines and thence to the police-station at Pirbahore where, apparently, he incited the constables to join in the strike. From, the Pirbahore police station he set out for the Kadamkuan police-station, but in the meantime police officers in Patna had got to know of his arrival and had set out in pursuit of him. The truck driven by Barhamdeo Singh was overtaken in a narrow road which was partially, blocked by a stationary motor car in which two civilians were sitting. The men in the truck got out of it and one or more of them opened fire on their pursuers. This fire was returned, and, most unfortunately, the two civilians in the motor car were killed, as also was one of the occupants of the truck. Ramanand Tewari himself got away and went either that night or early next morning to Chapra. Another ex-constable, Indradeo Singh, who has been described as a lieutenant of Ramanand Tewari, left Patna immediately after this incident for Monghyr. Indradeo Singh appears to have assumed that, as British troops had been called in on the previous night, it must have been British troops who were responsible for opening fire on the occupants to the truck driven by Barhamdeo Singh in Kadamkuan. His resentment at the employment of British, troops and at what be supposed, suit wrongly it would seem, had been their behaviour had, I am inclined to think, a good deal to do with what took, place at Monghyr and also possibly at Gaya. Indradeo Singh reached Jamalpur at about 5 p.m and went to the police lines and called on the havildars and constables there to go on strike. Sergeant Ashton, on being told of what was going on in the lines, at once went to the armoury and ordered Indradeo Singh out of it. Indradeo Singh called on him to hand over the key of the armoury, and, when Sergeant Ashton declined to do so, he was assaulted, one constable striking him a blow on the head with an iron bar. Indradeo Singh then took possession of the key and opened the armoury and issued rifles and ammunition to the havildars and constables. Prior to this Indradeo Singh had been in communication by telephone with the police lines at Monghyr. At about 7 p.m the alarm was sounded there and the havildars and constables decided to go on strike. At about 13-30 p.m the armoury was broken open and rifles and ammunition were issued to those constables who were not already in possession of them. In the meantime the District Magistrate and the Superintendent of Police, Mr. A.B Banerji, who had displayed much tact and had done his utmost to prevent a strike, received orders from Patna that the military should be called in to suppress it. Shortly after midnight a detachment of troops took up positions at or near the gate of the Fort close to the police lines. An order to surrender was given, and, when this was not obeyed, the officer commanding ordered six of his men to fire one round each into the police lines. This fire was returned. Between 3 a.m and 4 p.m the constables at Jamalpur decided to abandon the armoury there and to move in to Monghyr. They stopped and boarded a cooly train which arrived in Monghyr at ahout 4 a.m and proceeded to the police lines to join the constables there. The latter mistook them for troops and opened fire on them, and several of the Jamalpur constables were wounded, before the mistake was discovered. Orders to stop firing were then given and the Jamalpur constables were admitted into the police lines. At about 7 a.m next morning Mr. Banerji made another effort to put an end to the strike, and on this occasion; succeeded in getting the constables to surrender. Indradeo Singh succeeded in getting away and appears to have crossed the river with the intention of creating trouble at Begusarai. So far, however, as appears from the record, he either did not go there or did not succeed in his mission Ramanand Tewari arrived in Chapra on the 27th of March, 1947, and between 4 p.m and 6 p.m on that day addressed a meeting of the constables in the police lines. A number of men at this meeting decided to go on strike. Any attempt to obtain possession of the armoury was, however, foiled by the energy and courage of Sergeant Major Chandradeo Singh who was in charge of the special, armed police force. This man and hist, jamadar, Manzoor Khan, succeeded in preventing their own men from taking any part in the meeting, and, when it appeared that an attempt might be made to take possession of the armoury, marched their men there, and ordered them to resist. The strike at Chapra was, in consequence, very much less serious although, apparently, troops had to be brought from Muzaffarpur before it was finally quelled. The only other district in which any constables went on strike was Shahabad. At Arrah the ring-leaders were apprehended with the assistance of troops from. Dinapur, and, in consequence, nothing untoward happened. At Sasaram the armed police deserted their posts and took up their positions at the sub-treasury although, as at Jehanabad, they allowed the staff of the sub-treasury to carry on their work as usual. This strike was brought under control by the Superintendent of Police apparently without any assistance from the military, on the 29th of March, 1947.
The evidence relating to these various events is extremely voluminous. It is, however, quite unnecessary to refer to it as Mr. Awadhesh Nandan Sabay, for the appellants, has conceded that it is substantially correct. The decision of each of the appeals depends mainly, if not wholly, on certain point of law, and, as such evidence as has a material bearing on these points of, law was adduced at each of the three trials, the three appeals can conveniently be disposed of in one and the same judgment.
The appellants in Criminal Appeal no. 115 of 1949 have been convicted under section 121 of the Penal Code for having waged war against the King. So far as some of these appellants are concerned, there was no evidence on which such a charge could possibly have been framed. So far as the remaining appellants are concerned, the charge is sought to be sustained on the ground that they were among those who took possession of the armoury on the 23rd of March, 1947, and, so far as a small minority of them are concerned, also on the ground that they took part in the resistance which was put up to the troops on the 27th of March, 1947. The expression “waging war” means and can, I think, only mean “waging war in the manner usual in war.” In other words, in order to support a conviction on such a charge, it is not enough to show that the persons charged have contrived to obtain possession of an armoury and have, when called upon to surrender it used the rifles and ammunition so obtained against the King's troops. It must also be shown that the seizure of the armoury, was part and parcel of a planned operation and that their intention in resisting the troops of the King was to overwhelm and defeat these troops and then to go on and crush any further opposition with which they might meet until either the leaders of the movement succeeded in obtaining possession of the machinery of Government or until those in possession of it yielded to the demands of their leaders. That this is so is, I think, made quite clear by an examination of the Bill which led to the insertion of section 121A in the Penal Code. The section, as it appears in the Bill and, more particularly, the latter portion of it is not precisely the Same as the section, which was ultimately enacted. For our present purpose the relevant words in the Bill were:
“Whoever……………… conspires to wage or abet civil war shall be punished with transportation for life, or any shorter term; or with imprisonment of either description which may extend to ten years:”
Explanation 2 ran thus:
“Civil war means permanent and organised hostile operations carried on by any one section of the community against any other section of it.”
Appended to this were two illustrations, one of which was:
“An attack upon an arsenal might be civil war if it was intended as the first step towards permanent hostilities,” (Gazette of India, dated August 27, 1870.)
The then legislative member of the Government of India was Sir James Fitzjames Stephen who later, became one of the judges of the High Court in England and was perhaps the greatest authority of his generation on criminal law. In his Digest of the Criminal Law, 8th edition, page 57, one of the meanings given to the expression “to levy war” is “attacking in the manner usual in war the King himself or his military forces, acting as such by his orders, in the execution of their duty”. It is, I think, quite impossible to say that any of these appellants waged war in the sense in which that expression, as it occurs in section 121 of the Penal Code, was used. The appellants or some of them were in possession of the armoury at Gaya for several days, and it is perfectly clear that they never intended to use it as a base for further operations. As to the engagement, if it can be called an engagement, between them and the troops who were sent against them, it has to be remembered that very fantastic rumours had apparently been spread as to the treatment which had been meted out to the constables at Patna. It may be that those of the appellants who were inside the police lines and the other havildars and constables who were there with them expected the troops to shoot them down and determined to put up as much of a desperate resistance as they could before they were shot down. That, I think, is suggested by what was said by Sergeant Lacey who was inside the police lines and who described the constables having run about “like mad fools” when the armoured car proceeded towards the armoury. The utmost that can I think, possibly be said is that their leaders were determined to make the troops sent against them have recourse to force in order to arouse public sympathy in their cause and to put or try to put the Provincial Government in the wrong. Even, however, if that was so, the convictions under section 121 of the Penal Code cannot be supported. The appellants were no more guilty of that offence than any other persons who, when called upon to submit to arrest, offer resistance.
When any body of men whether factory operatives or clerks or police men go on strike, their object, clearly is to coerce their employers into yielding to their demands. Until the early part of the 19th century combinations of this kind in England were criminal. Subsequently it ceased to be a crime for the great, majority of workers to resort to a strike although certain acts done by strikers were and are still punishable as crimes. Policemen, however, and certain other classes of employees are forbidden by law to go on strike. Each one of the appellants who went on strike committed an offence and when each of them agreed with the others to do so, they jointly committed another and more serious offence, namely, the offence of conspiracy. A conspiracy is in substance an agreement to do an unlawful act. The only case which I have been able to discover in which a number of public servants simultaneously declined to perform their duties in order to extort concessions in the matter of pay from the State is a very old one decided in 1769, [Vertue v. Lord Clive(1).] Certain military officers in the army of the East India Company simultaneously tendered their resignations of their commissions on the ground that they had not received as much in the way of allowances as they believed they were entitled to. Lord Clive, in order to meet the very dangerous situation which was thus created, had the officers placed under arrest, and, when they returned to England, some of them instituted actions to recover damages for assault and false imprisonment. These actions were dismissed, and, in dismissing them, one of the Judges observed that “this combination was a criminal act”. This decision, however, while it shows that the appellants were guilty of conspiracy, is of no assistance to us in deciding the real point of difficulty arising in the appeal, which is whether, the conspiracy was a conspiracy of such a kind as to attract the operation of section 121A of the Penal Code. The marginal note to section 121A is “conspiracy to commit offences punishable by section 121”. This was a strictly accurate description of the section which it was proposed to enact in the Bill originally introduced in the Legislative Council. It is quite clear that the conspiracies aimed at in the Bill were conspiracies either to wage war against the King in the manner in which it is usual to wage war or conspiracies to raise an insurrection with the object of subverting the constitution. The section, however, as finally enacted brought within its scope other conspiracies also, and the marginal note is not a strictly accurate description of what is contained in it. The word's “conspires to overawe by means of criminal force or the show of criminal force the Central Government or any Provincial Government” clearly embrace not merely a conspiracy to raise a general insurrection, but also a conspiracy to overawe the Central Government or any Provincial Government by the organisation of a serious not or a large and tumultuous unlawful assembly. Possibly, in modifying the section as it stood in the Bill, the Legislative Council had in mind the case of Lord George Gordon. Lord George Gordon put himself at the head of a large mob which proceeded to the Houses of Parliament in order to protest against the enactment of certain legislation. After having made its protest, the mob dispersed, but certain members of it proceeded to perpetrate outrages in different parts of the city of London. Lord George Gordon was tried on a charge of high treason and was acquitted the reason apparently being that, while he had intended to make a demonstration outside the Houses of Parliament, he had not been a party to the disorders which resulted from it. Section 121A occurs in a chapter, of the Penal Code which is headed “Offences against the State”, whereas the offence of conspiracy is contained in the preceding chapter, Chapter VA. which is headed “Criminal Conspiracy”. The legislature in enacting section 121A clearly had in mind the English Treason Felony Act of 184.8 and I am very much inclined to think that, in enacting it, it did not aim at conspiracies other than conspiracies which had a political object, that is, conspiracies to overthrow the existing constitution or conspiracies to prevent the enactment of legislation which was considered to be obnoxious or to compel the resignation of a member or members of the Government who had become unpopular. As the section stands, however. I am not prepared to say that in certain circumstances persons who organise a strike among police men or, certain other public or municipal employees might not render themselves liable to prosecution under it. Clearly, however, persons do not commit this crime unless it was part and parcel of their plans to overawe the Central or the Provincial Government by criminal force or show of criminal force. The word “overawe” does not appear anywhere else in the Penal Code except in this section and in another section in the same chapter (section 124). In the Treason Felony Act, 1848, which the authors of section 121A appear to have had in mind, the words used are
“intimidate or overawe both Houses or either House of Parliament”,
and the words there must be read in conjunction with the words immediately preceding them, which are
“in order by force or constraint to compel His Majesty to change his measures or counsels”.
The word “overawe” clearly imports more than the creation of apprehension or alarm or even perhaps fear. It appears to me to connote the creation of a situation in which the members of the Central or the Provincial Government feel themselves compelled to choose between yielding to force or exposing themselves or members of the public to a very serious danger. It is not necessary that the danger should be a danger of assassination or of bodily injury to themselves. The danger-might well be a danger to public property or to the safety of members of the general public. In Rea v. Thomas Gallagher and in Rea v. Deasu(2) certain persons were convicted of treason-felony on the ground that they had entered into a conspiracy to cause explosions with dynamite in different parts of the United Kingdom, their object being to compel the British Government to make alterations in the government of Ireland. I refer to these decisions because, as will appear presently, the object of the promoters of this conspiracy, assuming that they intended to use criminal, force or to make a show of criminal force, was not to bring that force directly to bear on the members of the Cabinet at the seat of the Provincial Government, but to bring it to bear on them indirectly at a number of points in the province. In order to show that the promoters of this conspiracy intended to achieve their objects by means of criminal force, the prosecution relied mainly on what was said by Ramanand Tewari at the meeting which he addressed at Gaya on the 25th of March, 1947, and what was said by him at two of the three police-stations which he visited on his way to Patna next morning and on what was said by his lieutenant Indradeo Singh to the District Magistrate and the Superintendent of Police of Monghyr later on that day. In the sanahas which the Sub-Inspectors of the Bikram and the Bihta police-stations recorded in their station diaries immediately after Ramanand Tewari and his companions left Ramanand Tewari is stated to have said in the one case that he and his associates intended to arrest the Chief Minister as Mr. Bishwambhar Chaudhuri was a relation of his, and in the other that they intended to arrest the members of the Cabinet and also the Inspector-General and the Deputy Inspector-General of Police. The record of what was said by Ramanand Tewari at the other police-station; which he visited, contains nothing of this kind, and in the trial court and also in this Court it has been suggested that interpolations were made later, in the station diaries at Bikram and Bihta. The intrinsic evidence afforded by the entries in the station diaries themselves shows that there is no substance in this. The explanation for the apparent discrepancy between the entry in the station diary at Maner and the entry in the station diaries at Bikram and Bihta is, I think, that, while the sub-inspector at Maner thought, and perhaps rightly, that it was of importance to record what the conspirators intended and were in a position to do immediately, the sub-inspectors at Bikram and Bihta were more impressed by the violence of the language used by Ramanand Tewari and thought it important to record what he boastfully said he proposed or hoped to do ultimately in the event of the conspiracy proving completely successful. The conduct of Ramanand Tewari and his companions when they reached Patna shows that there was not then and could not possibly have been, any plot to kidnap the Chief Minister or any member of the Cabinet. It is, I think, a pity that several police officers were not deputed to attend the public meeting addressed by Ramanand Tewari at Gaya on the 25th of March, 1947, and to make as full and accurate a record as possible of what he said. Only one assistant sub-inspector attended this meeting or was called to give evidence, and this assistant sub-inspector did not produce the record which he made at the meeting. Pandey Narsingh Sahay produced in this Court a copy of a report which he submitted after the meeting. This contains the very briefest of summaries of what was said. All that can be gathered from it is, I think, that Ramanand Tewari made it clear that he intended to call put; the whole of the constabulary in the province, numbering some 30,000 men and that, while he had no intention of resorting to force immediately, he was prepared; to resort to it if and when necessary. The District Magistrate and the Superintendent of Police of Monghyr deposed that in the conversation which they had with Indradeo Singh, Indradeo Singh gave them to understand that he was awaiting instructions from Ranianand Tewari and that, among other instructions which he expected to receive, was an instruction to march some of the constables at Jamalpur or Monghyr to Bhagalpur. This statement, it is clear, was not made in pursuance of the conspiracy and was not really, admissible in evidence. It seems to me very doubtful if any such action was really contemplated by Ramanand Tewari and the other leaders of the movement. Even, however, if it was, it does not carry the case for the prosecution appreciably further. It is not usual for a prosecution for conspiracy to be instituted unless the public prosecutor is in a position to put into the witness box one or more persons who have at one time or another been parties to the conspiracy and also to produce, documentary evidence in the shape of letters or communications which have passed between some of the conspirators showing what exactly they intended to do and how they intended to do it. There is no evidence of this kind on the record except the telegrams which were, despatched by Ramanand lewar from Gaya on the 24th of March, 1947. These, however, are of no importance as they merely show that at the time when they were despatched Ramanand Tewari and his associates had not yet finally made up their minds to convert a local into a provincial stride. In this situation, in order so decide what the object of, the conspirators was and how exactly they hoped or, intended to effect it. He are compelled to rely on what they or their dupes actually, did. It appears that in 1946 the police union had made certain demands and that, while the Provincial Government had conceded some of these, it had declined to concede the others. Although before this strike was precipitated no communication was sent by or on behalf of the police union to the Provincial Government, it appears clearly enough from what was said by Ramanand Tewari in the public meeting and at the police-stations which he visited in Patna that it was intended to extort from the Provincial Government the concessions or some of the concessions which they had declined to grant. As to the methods which were to be employed to coerce the Provincial Government, it is clear that the intention of the conspirators was that at each headquarters or in any sub-division in the province in which armed police were stationed and there was an armoury the armed police were to be induced not merely to mutiny and to refuse to obey orders and perform their ordinary duties, but were also to take possession of the armoury and of the rifles and ammunition contained in them, and were further not to yield them up unless compelled to by main force. It was further intended that, where small parties of armed police were stationed at outlying police stations, they should desert their posts and return with their arms and ammunition to the police lines to reinforce the havildars and constables mere. Finally, it was intended that constables attached to police-stations in the muffasal should similarly refuse to obey the orders of their sub-inspectors and should remain idle at the police stations. The Administration of this country in the mufassil depends very largely on the police and if police constables at every police-station in the mufassil had withheld their services as in this conspiracy, then the machinery of administration would have been seriously dislocated; also sooner, or later, and sooner rather than later, crime against property would, have greatly increased. The Withdrawal of traffic constables and police pickets in towns would have had equally disastrous consequences. It is to the credit of the Provincial Government that they acted with resolution and promptitude and brought the mutiny to an end in the only way that was possible. A great deal was made at the trials oyer the assaults committed on Mr. Varma and the other police officers at Patna, over the skirmish between the Gurkha military police and some of the occupants of the motor truck in which Ramanand Tewari came to Patna and oyer the assaults on Sergeant Lacey at Gaya and on Sergeant Ashton at Jamalpur. The assault on the police officers at Patna and the firing on the Gurkha military police were not acts done in the pursuance of the conspiracy, and the large body of evidence which was adduced as to these incidents was wholly irrelevant. The assaults on Sergeant Lacey and Sergeant Ashton were, do doubt, acts done in pursuance of the conspiracy but the criminal force there used was clearly not intended directly to overawe the Provincial Government. It was used in order to obtain the keys of the armouries. As to the firing at Gaya and Monghyr, this cannot bring the conspiracy under the latter part of section 121A. If, in consequence of these incidents, the conspirators are liable under section 121A. they can only be liable under the earlier and not under the latter part of the section. For the reasons already given, however, the conspirators were not guilty of waging war against the King. The decision, in my opinion, turns on a very narrow point, namely, whether the conduct of the conspirators in seizing the armouries and taking possession of the arms and ammunition, constituted a show of criminal, force. If, having possessed themselves of the rifles and ammunition, any considerable number of constables had swaggered about the streets of Gaya, Jamal put and Monghyr, causing alarm to the citizens in general, it might, I think myself, have been argued that by a legitimate extension of the principle underlying the decisions in Reg. v. Thomas Gallagher and in Reg. v. Deasy, there had been a show of criminal force capable of overawing the Provincial Government, Nothing, however, of this kind happened. The havildars and constables at Gaya remained peacefully in the police lines for several days and, did nothing to intimidate the general body of citizens, but took steps to ensure that the working of the treasury should not be interrupted. The conspirators, I think myself, intended to place the Provincial Government in what they considered would be a dilemma for men who were wedded to the principle of non-violence, that is, they intended, to compel them to choose between yielding to their demands or calling in the troops to compel them to surrender, and, if necessary, to open fire on them. However that may be, it cannot, I think, fairly be said on the evidence that there was any such show of criminal force as is contemplated by section 121A of the Penal Code. In that view of the matter, while there was a conspiracy it was a conspiracy on the part of a large number of havildars and constables to withhold their services. Under the Penal Code, when there has been a conspiracy to commit an offence and the offence has been committed in pursuance of the conspiracy, the punishment provided is the same as the punisnment provided for the offence, I think myself that this is unfortunate. It may not be a very serious matter when a constable or a small number of constables withhold their services, but when a large number of constables all over the province band themselves together to withhold their services, and when troops have to be called in to quell the mutiny, this amounts to a very serious public mischief. Under the common law of England, a conspiracy to commit an offence could be punished more severely than could the commission of the offence itself, and in any case, in England a person who incites constables to mutiny is liable to a sentence of two years' imprisonment. When it is remembered that in England the police are not armed and that there is not one police force but a great many police forces, while in India the police force in every province is a single police force and a not inconsiderable proportion of it is armed the Legislature might well be asked, I think, to consider whether the maximum sentence which can be imposed in this country and which is six months' rigorous imprisonment is not wholly inadequate, at least in cases of this kind.
The other charge of conspiracy, which was framed at each of the three trials, was not a charge of conspiracy to commit an offence under the Police Act but a charge of conspiracy to commit an offence under section 3 of the Police (Incitement to Disaffection) Act, 1922. It is, therefore, necessary to distinguish between those of the appellants who incited other constables to mutiny and those of them who merely yielded to such incitement and withdrew their services, Ramanand Tewari, in Criminal Appeal no. 584 of 5, 1949, was found guilty of this charge and his conviction will he affirmed, and, as the trial court did not impose any separate sentence on this charge, he will be sentenced on it to undergo rigorous imprisonment for six months; his conviction on the other charges must, however, be set aside. Subject to this modification, Criminal Appeal no. 584 of 1949 is dismissed, in Criminal Appeal no. 115 of 1949 the appellants who are clearly guilty on this charge are Mir Hassan Anan, Rambaiak Singh, Ganga bingh, Mohammad Sabir and Leyakat Mussain, who constituted themselves a committee of action and attended on and assisted Ramanand Tewari, and Brahniadeo Singh, Brijnandan Singh and Suraj Saran Upadhyay, who were on the truck in which Ramanand Tewari went from one police station to another in Patna, inciting constables to desert their posts. The convictions these eight appellants, on this charge will be affirmed, and, as the trial court did not impose any separate sentence, they will be sentenced on it to undergo rigorous imprisonment for six months each. The other convictions of these appellants will be set aside. Subject to this modification, their appeal is dismissed. The appeal of the other appellants is allowed, the convictions and sentences imposed on then are set aside and they will be released and set at liberty forthwith.
In Criminal Appeal no. 156 of 1949, there is evidence that a small number of the appellants, particularly, Dinanath Singh, Mohammad Khalil and Ramnaresh Misra, took a more prominent part in the occurrence than did the others. Unfortunately, however, there is no evidence to show that they or any of the other appellants except Indradeo Singh incited other constables to mutiny. The result is that the appeals of all the appellants except Indradeo Singh must be allowed, the convictions and sentences imposed on them must be set aside and they must be released and set at liberty forthwith. Indradeo Singh was convicted under section 395 of the Penal Code. There is no doubt that he was not merely responsible for the constables at Jamalpur and Monghyr taking part in the mutiny but that he was also responsible for depriving Sergeant Ashton of the key of the armoury. Although it was not he who struck Sergeant Ashton on the head with an iron bar but another constable, this appellant and that constable were acting in concert with one another. The offence, committed was not, however, the offence of dacoity but the offence of robbery, and the conviction of this appellant under section 395 of the Penal Code will be altered to one under section 392 of the Penal Code. His conviction; under section 121A must be set aside, but his conviction under section 3 of the Police (Incitement to Disaffection) Act, 1922, will be maintained. On the former charge he will be sentenced to undergo rigorous imprisonment for seven years and on the latter to undergo rigorous imprisonment for six months, the two sentences to run concurrently.
I cannot, leave this case without commenting on the manner in which the proceedings were conducted. The paper books weigh more than 14 lbs. and contain between two thousand and three thousand closely printed pages. In one case the trial lasted for 80 days and in another for 59 days. In the former, the presiding Additional Sessions Judge, Mr. Brindaban Behari Lal, found it necessary to spend 23 days in listening to arguments while in the latter, Mr. Uma Kanta Prasad Singh, allowed the arguments to continue for 18 days. In my opinion, neither of them can have exercised any effective control or, indeed, any real control at all over the proceedings. The Provincial Government may have been justified in sanctioning the prosecution of at least some of these appellants under section 121A of the Penal Code but it is, I think, unfortunate that their legal advisers did not exercise more control over, the Public Prosecutor. It may perhaps have been necessary to try Ramanand Tewari separately, but the other appellants in each of the other two appeals could and ought to have been tried together. They had all been concerned in the same conspiracy and there was no justification for trying some of them in one trial and the others in another-trial. Apart, moreover, from the same evidence having had to be adduced at each of these trials, a great deal of evidence, which was either wholly irrelevant or was of very doubtful relevance, was adduced. In the time which was wasted oyer these trials the causes of scores of ordinary litigants could have been heard and determined.
Jamuar, J.:— I agree.
Order accordingly.
K.D