Madan, J.:— On the morning of 5th July 1936 a loud explosion took place in a house occupied by Ramkishun Lal in Patna City. The house is situated on the bank of the river Ganges close to the Khaje Kalan Ghat which is leased to a contractor, Ramkishun and Radhekishun are in charge of the ghat under the lessee. One Mohiuddin who heard the explosion tried to enter the house but was not allowed to do so. He proceeded to the Khaje Kalan thana a quarter of a mile distant, where he lodged a first information at 11-30 A.M Sub-Inspector S.M Ishaque reached the spot shortly afterwards and found the door of the house dosed. He pushed the door open and went inside where he found Ramkishun Lai. He also found Ramkishun's son Ragho Prasad, who is a student of the Patna City School and is one of the appellants before us, injured and bandaged. He recorded the statements of both these persons, and meanwhile the Assistant) Superintendent of Police, Patna City, also arrived. The Assistant Superintendent of Police and the Sub-Inspector inspected the room said to have been occupied by Ragho Prasad and found damage to the furniture, pictures, ceiling doth and walls. They recovered a gamcha (Ex. 5) which was torn and showed marks of burning, and they also found yellow marks on a chauki in the room and on the durries and elsewhere. They heard that other articles had been thrown away at the riverside, and they proceeded there accompanied by one Thakur Kurmi, a servant of Ramkishun. Thakur pointed out a place where the police officers recovered, from the river bank and from under the water, a pocket book (Ex. 9) and other articles. On a search of Ragho Prasad's room, further articles wore recovered including a note book (Ex. 16), an account book (Ex. 23) and a manuscript speech (Ex. 24). The same day the houses of Panna Lal and Ram Babu, who are the remaining appellants before us, were searched, and both of them were arrested. They also are students of the Patna City School of about the same age as Ragho Prasad. In the case of Panna Lal witnesses have been examined to prove that he brought a bundle to the room of Ragho Prasad shortly before the explosion and that he returned there shortly afterwards. At about 2 p.m a doctor examined Ragho Prasad in Patna City hospital, and found lacerated wounds on the right side of the body, and slighter marks of injury on the right side of the neck and the face. There were indications that these injuries had been caused as a result of some kind of explosion.
2. The next day, 6th July, Ragho Prasad made a statement in hospital to Sub-Inspector Abdul Hafiz of the Malsalami thana with the result that search was made at a house in Sabalpur on the outskirts of Patna City, which is said to be a garden house belonging to the father of Ram Babu from the house was recovered a stone slab (Ex. 1) and from the compound a piece of wood (Ex. 49) and a rag (Ex. 48). Some books were also recovered from an almirah in the house. Articles recovered from the various searches were sent to the Inspector of Explosives and found to con tain traces of red sulphide of arsenic, chlorate of potassium and sulphur, such as are used for making explosives.
3. On 21st July Ragho Prasad made a confession which was recorded by Mr. Najmul Hoda Mian, Sub-Deputy Magistrate of Patna City. The confession was retracted before the committing Magistrate, but has been held to be genuine and has been admitted in evidence. On 26th August, charge-sheet was submitted against the three appellants and two other persons, Deokinandan Missir and Hari Narain Lal. Charges were framed under Sections 4(b), 5 and 6 of the Explosive Substances Act, and also under S. 120-B, I.P.C, for conspiring to commit offences under that Act. Thirty-seven witnesses were examined for the prosecution. Ragho Prasad filed a written statement to the effect that his confession was untrue and that he was tutored to make it by the police. He stated that he did not know how the explosion occurred as he was asleep at the time. Panna Lal filed a written statement to the effect that he had been falsely implicated in order to save Ragho Prasad. Ram Babu, examined in Court, denied all concern with the affair. The trial was held with the aid of four assessors, two of whom found Ragho Prasad and Ram Babu guilty under all charges while the other two found them guilty only under Sections 5 and 6 of the Explosive Substances Act. Two assessors found Panna Lal not guilty under any of the charges, one found him guilty under all the charges and one found him guilty only under S. 120-B. All the assessors found Hari Narain Lal not guilty. Two assessors found that Deokinandan Missir was not guilty while the other two found him guilty under S. 120-B. The Additional Sessions Judge, who tried the case, acquitted Hari Narain Lal and Deokinandan Missir on the ground that in their cases the confession of Ragho Prasad had not been corroborated. He convicted Ragho Prasad and Panna Lal under Section 4, 5 and 6 of the Ex plosive Substances Act, and under S. 120-B. He convicted Ram Babu under Ss. 4 and 6 of the Act and under S. 120-B. He sentenced them each to five years rigorous imprisonment, and they have now appealed to this Court. A preliminary objection has been taken before us that the Court was not properly constituted and that the trial was coram non judice and that the whole proceeding is bad; first, because the assessors were not chosen in accordance with law; and, secondly, because one of the assessors could not read English. It appears that the usual precept was issued to the District Magistrate for summoning assessors in accordance with Section 326 of the Cr PC, but when the case came up for trial, only three of the assessors summoned were present. There was, however, present in Court a gentleman whose name is on the list of persons qualified to serve as assessors, and the Judge caused a summons to be served on him. The Judge then chose as assessors the three persons previously summoned and this fourth gentleman summoned on the date of the trial.
4. The first objection taken is that although in the case of a jury trial S. 326 empowers jurors to be chosen from persons present but unsummoned in order to make up a deficiency in the number of jurors, S. 284 contains no such provision, and it has been held in 3 PLJ 1411 that, where a Sessions Judge had chosen from those present in Court a person who is not on the list of persons qualified to act as assessors, that person could not be considered to be an assessor, and, as without him the statutory number of assessors was incomplete, the trial was contrary to law and the conviction and sentence had to be quashed. But in the present case Pandit Chhatrapati Sarma is a gentleman whose name appears in the list of persons qualified to act as assessors, and a summons to him to appear and to act as such had been issued and served. It is said that summons had not been issued and served in accordance with S. 326, but this section lays down the procedure which “shall ordinarily” be followed and is not mandatory. S. 327 gives an emergency power to cause jurors or assessors to be summoned when such direction is found to be necessary. Then it is said that as there were not more assessors present than were required to serve, it was not possible to choose assessors by lot as contemplated by S. 281 or indeed to choose them at all, there being no choice. But S. 284 does not prescribe that the assessors are to be chosen by lot. In fact it does not say that they ought to be chosen in any particular manner. Until the amendment of 1923, the law was “two or more shall be chosen as the Judge thinks fit” and though the words “as the Judge thinks fit” have been omitted from the section as it now stands, it cannot be said that the effect of the amendment is to require the assessors to be chosen in any particular manner. It is not, in my opinion, the law that the assessors must be chosen by lot. As to the argument that assessors cannot be “chosen” unless there are more present than are required, this is an argument which was not accepted by a Full Bench of the Calcutta High Court in 57 Cal 12282 which has been followed by the Patna High Court in 10 Pat 107,3 and I do not think that the use of the word “chosen” necessarily implies that there ought to be a selection from a larger number. The contention that the assessors were not chosen in accordance with law must therefore fail.
5. The other point taken is that one of the assessors, namely Maulavi Saiyid Sahabuddin, did not know English, and reference was made to the Privy Council decision in 12 Pat 811.4 That was a jury trial, and the conviction was set aside on the ground that one of the jurors did not know English and so could not follow some of the evidence, the arguments and charge to the jury, which were given in English. The language of the Court is Hindi, and it has never been doubted that Hindi-knowing jurors and assessors are competent to take part in the trial of cases in which the evidence, arguments and summing up are given in Hindi. If evidence is given in Hindi, the fact that it is taken down in English would not make any difference. The provisions as to the language of proceedings are in Sections 356 to 361 of the Cr PC, S. 360(3) requires that, if the evidence is taken down in a language different from that in which it has been given, and the witness does not understand the language in which it is taken down, the evidence so taken down shall be interpreted to him in the language in which it was given or in a language that he understands; and S. 361 requires that whenever any evidence is given in a language not under, stood by the accused and he is present, it shall be interpreted to him in open Court in a language understood by him. There is a provision in S. 282 for the case in which in the course of a trial it appears that any juror is unable to understand the language in which evidence is given, or, when such evidence is interpreted, the language in which it is interpreted; in such a case a new juror has to be added, or the jury has to be discharged and the trial must commence anew. There is no similar provision with regard to assessors; but assuming that the principle applies, the fact that an assessor does not understand English will not invalidate a trial unless there had been a failure to interpret in Hindi evidence which had been given in English. There is no material before us to show any such failure; nor has any such thing been alleged in the memorandum of appeal on behalf of any of the accused. We are given to under, stand that the arguments in the case were given in Hindi and that there was no summing up. It was contended that as some of the documents are in English the assessor who did not know English was incompetent. We were not referred to anything in the statute in support of this contention. It may be less convenient to have an assessor who did not know the language of the documents thereby necessitating loss of time in interpreting etc., but the matter does not go to the competency of the assessor or the lawful constitution of the Court. The preliminary objection must therefore fail.
6. It was next objected that the confession of Ragho Prasad ought not to have been admitted into evidence. Under Section 164(3) of the Cr PC, a Magistrate is required before recording a confession to question the person making it in order to satisfy himself that it was made voluntarily. In the present case the Magistrate, in accordance with the form drawn up for recording confessions under S. 164, questioned Ragho Prasad as to how long he had been in custody of the police. The next heading in the form runs as follows:
In order to ascertain whether the accused is prepared to make a statement of his own freewill, he is next examined and cautioned.
7. The record made by the Magistrate under this heading is as follows:
I am a Magistrate; whatever you have got to state before me, yon may do so of your own accord and without being tutored and induced by any one. Whatever yon will state before me may go against you. You are at liberty not to make any statement. Do not make any statement on any temptation or under any pressure.
8. We find therefore that the Magistrate recorded as having cautioned the person making the confession but not as having questioned or examined him. The learned Additional Sessions Judge, when dealing with this matter, has observed that the Magistrate, when he gave evidence at the trial, was not questioned by the prosecution or the defence as to whether he was satisfied, by putting questions to Ragho Prasad or by some other means, that the confession was voluntary. If the record is defective on this point, the necessary questions should have been asked by the prosecution or by the Court; but actually the Magistrate stated in his examination-in-chief that the questions that he put to Ragho Prasad and the warning that he gave had been written down in the confession. It follows that the Magistrate did not question Ragho Prasad as to whether his confession was being made of his own free will, after he had ascertained how long he had been in custody of the police. It was the Magistrate's duty to satisfy himself at that time, by asking the necessary questions, that the confession was not the result of any undue influence. In the Privy Council case, 17 PLT 594,5 their Lordships have made it dear that there is no way of bringing into evidence a confession made to a Magistrate except by following the procedure laid down in the Code of Criminal Procedure. In 135 IC 8386 the Allahabad High Court, following the Oudh decision in 128 IC 215,7 pointed out that the object of recording both questions and answers by the Magistrate before recording the confession itself, is to enable the trial and the Appellate Courts to form their own conclusions as to the voluntary nature of the confession. In the absence of such materials, the Courts could not accept the Magistrate's certificate alone as being sufficient. In 2 Lah 3258 the Lahore High Court has held that failure to ask the necessary questions is sufficient to make the confession inadmissible in evidence. This view was nob accepted by this Court in 3 Pat 872;9 but in that case a question had been recorded by the Magistrate, who was also examined as a witness, and it was held that the confession had been shown to be voluntary.
9. In the present case, the confession was retracted before the committing Magistrate as having been tutored. At the trial, Ragho Prasad alleged that a C.I.D Officer accompanied by one Rajeshwari Prasad Singh, who is the son-in-law of the lessee of the ghat where Ragho Prasad's father is employed, tutored him to make the confession in order to save his life. Rajeshwari Prasad Singh, examined as a prosecution witness, denied the allegation; but Ramkishun Lal, father of Ragho Prasad, said that he asked Ragho Prasad how he came to make a confession to the Magistrate, and that Ragho told him that he had confessed at the instance of various police officers on the under, standing that he would be made an approver. These allegations stand in the way of our acceptance of the confession, not because we are inclined to believe them, but because owing to the Magistrate's failure to observe an important provision of the Code intended to safeguard the voluntary character of the confession, neither the record nor the Magistrate's deposition give us the necessary materials for dealing with them. In these circumstances I do not think that we should rely on the confession. I regret to have to comment with some severity on the failure of the Magistrate, Mr. Najmul Hoda Mian, to record the confession in accordance with the clear provisions of the Code of Criminal Procedure. Apart from the confession, the evidence against Ragho Prasad, who was represented by Mr. Yasin Yunus before us, is as follows: (After dealing with the evidence his Lordship proceeded.) It is fully proved that Ragho Prasad was in possession of the bomb as a member of the conspiracy. I would therefore uphold his convictions both under the Explosive Substances Act and under S. 120-B, I.P.C It has already been found that it was Panna Lal who brought the bomb to the house. He was a fellow student of Ragho Prasad of about the same seniority, and his name appears as a conspirator in the documents found at the search, although no hand, writing in those documents has been identified as that of Panna Lal. The circumstances leave no room for doubt that he is the Panna Lal named in the documents, and that he was one of the actual conspirators. In his case also I would uphold the convictions. Ram Babu, for whom Sir Manmatha Nath Mukharji appeared, was also a fellow-student with Ragho Prasad and Panna Lal, and books bearing his name were found in both their houses, although in each instance the books were not objectionable. The hand-writing of this appellant has been identified among the documents recovered from the possession of Ragho Prasad. A second account book (Ex. IX) was found in a torn condition on the river bank, and also contains accounts for the period from April to June 1936 with the names of the appellants and the two acquitted persons. The Hand, writing Expert found that two pages of this account book were in Ram Babu's hand-writing, and Sir Manmatha Nath Mukharji was unable to suggest any serious criticism of the reasons given by the Expert for his identification, which is enough to prove Ram Babu's connexion with the conspiracy. There is also the evidence regarding the search and recovery of incriminating articles at a garden house belonging to Ram Babu's father. The search took place as a result of a statement made by Ragho Prasad to the police the day following the explosion. The statement was of a confessional character, but the prosecution has brought into evidence, under Section 27 of the Evidence Act, so much of the statement as relates to the actual recovery of the articles found. These are a stone slab recovered from the first floor of the house, and a piece of wood recovered from the compound, on which the Chemical Examiner found traces of sulphide of arsenic, potassium chlorate and sulphur, which are used for making explosives. It was objected that S. 27 does not apply to this case as Ragho Prasad was not in police custody at the time when he made his statement. On that date the Sub-Inspector had reported to the Magistrate that Ragho Prasad owing to his injuries was being treated as an indoor patient in the Patna City Hospital, where he was under a guard of four constables and a havildar. The Sub-Inspector asked that Ragho Prasad might now be treated as being in the Court's custody and that the arrangements made for his guard might be approved, which the Magistrate did. The Sub-Inspector's report was clearly intended as a compliance with the provision of the Code directing that an arrested person must be made over to the Magistrate within 24 hours. Sir Manmatha Nath Mukharji argued that in the circumstances, Ragho Prasad ought to be regarded as being in the Magistrate's custody, and not in that of the police. He referred to 20 Bom 79510 where it was held that an accused who was in jail in a Native State was not in police custody, merely because in that State jail warders were members of the police force. It was however observed that the case might be different if the accused was being guarded in jail by the police officer investigating the offence, an observation which goes against the contention advanced now. Although S. 27 is restricted to persons in custody of the police, I do not see why it should not apply to cases of persons who are in actual police custody although that custody had been ordered by the Magistrate. There is nothing in such a case to offend against the principle of the section, namely that portions of a confession to the police leading to the actual discovery of facts can safely be proved as their truth has been independently guaranteed.
10. The prosecution has thus been able to prove that the discoveries were made in the garden house as a result of a statement by Ragho Prasad to the effect that bombs were being prepared in the garden house of Ram Babu at Sabalpur, and that a stone slab and a piece of wood which were used for powdering ingredients of the bomb were on the first floor of the house and in the compound. The statement was verified as a result of the search, although actually the position would have been little different had the Court been limited to the knowledge that the search was made and the articles recovered as the result of some statement made by Ragho Prasad to the police which could have been proved without recourse to S. 27. It was argued that Ram Babu could not be held responsible for the articles recovered as the house belongs to his father and not to him. There is no evidence that other members of Ram Babu's family were involved in the conspiracy while there is direct evidence implicating Ram Babu. The house is four miles from Ragho Prasad's house on the outskirts of Patna City and is likely to have been thought a suitable place for making experiments with little risk of interference. The circumstances compel the conclusion that access to the house and garden was obtained through Ram Babu, who was in possession of explosive substances there as one of the conspirators. I would therefore uphold the conviction of Ram Babu also.
11. It is suggested that the explosion was merely the result of a boyish prank and not of a serious revolutionary conspiracy. Although nearly 30 injuries were found on Ragho Prasad, they were not serious injuries, and he was discharged from hospital after a few days. This however is to be attributed more to his good fortune than to anything else. The explosion was such as might easily have caused serious bodily injury, and there is ample evidence of the appellants' criminal intention. It is true that there are indications on the record that there are other persons in the background who have been exercising an evil influence over the appellants, and it is regrettable that those persons are not before the Court rather than the younger persons who were to some extent their dupes. I do not however think that the learned Additional Sessions Judge would have been justified in taking a more lenient view of the case, much as we regret the necessity of sending young men like the appellants to jail. It was pointed out that; on the date when judgment was delivered, the appellants had been in custody for about ten months, and this is a circumstance which I think we are justified in taking into consideration by making an equivalent reduction of the sentences. I would accordingly, while upholding the convictions of all three appellants, reduce their sentences to four years' rigorous imprisonment.
Rowland, J.:— I entirely agree.
S.C/R.K
12. Sentences reduced.