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In Re, Umayyathantagath Puthen Veetil Kunhi Kadir
Factual and Procedural Background
The accused appealed against his conviction by the Special Tribunal sitting in the Malabar District for an offence under Section 121 Indian Penal Code and against his sentence to be hanged and to forfeit his property. The prosecution case, supported by the Deputy Superintendent of Police and the Deputy Inspector‑General of Police, was that a crowd of two or three thousand attacked police and military who were searching for war‑knives; police fired in self‑defence, killing nine and wounding three; the accused was seen in the front rank of the mob near the standard bearer, was later found in a mosque and arrested, and after his arrest told the mob to disperse. Additional witnesses deposed that the accused had been Secretary of the Khilafat movement, preached non‑cooperation and subversion of British rule, held a mock court, and urged an armed attack on Tirurangadi; a flag (M.O.1) from the incident was produced. On appeal the court considered objections to the sanction under Section 196 CrPC, to the absence of the complainant's oathed examination, the substantive question whether the acts amounted to waging war under Section 121 IPC, and the propriety of the sentence (including forfeiture of property).
Legal Issues Presented
- Whether the sanction of the Local Government (Ex. B) under Section 196 CrPC is defective because it authorises prosecution in the alternative under Section 121 or Section 121‑A IPC.
- Whether the trial was irregular for not beginning with the examination of the complainant on oath as contemplated by Section 252 (warrant cases) / Clause 6 of Ordinance III of 1921.
- Whether the accused's acts amounted to the offence of waging war against the King (Section 121 IPC).
- Whether the sentence should include forfeiture of property and whether the death sentence should be interfered with on appeal.
Arguments of the Parties
Appellant's Arguments
- The sanction (Ex. B) is defective because it permits prosecution in the alternative under Section 121 or Section 121‑A IPC, contrary to the requirement that sanction specify particular sections (relying on Barindra Kumar Ghose v. Emperor).
- The trial was irregular for not examining the complainant on oath at the outset as required for warrant cases.
- Counsel (Dr. Swaminathan) contended the accused's acts did not amount to waging war.
Respondent / Prosecution's Position
- The sanction Ex. B was a valid and specific authority to prosecute under the two specified sections, leaving open only which of the two applied to the proved facts.
- The procedure followed (hearing the complainant without oath) did not render the trial irregular and caused no shown prejudice to the accused.
- Evidence showed organised armed attack with the accused in the front rank, speeches urging subversion, and use of a flag indicating non‑peaceful purpose; thus the acts amounted to waging war.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Barindra Kumar Ghose v. Emperor | That "the sanction should be specifically directed to the particular sections of chapter VI in respect of which proceedings are to be taken" and that the Local Government should not give a roving power to advisers to determine under what sections proceedings should be taken. | The court accepted these observations but distinguished the present sanction from the sanction in that case and held Ex. B sufficiently specific; the objection failed. |
| Lord George Gordoni, and Regina v. Frost | Leading statements of law bearing on the offence of waging war against the King. | The court held that the statement of law in these leading cases "fully supports" its view that the accused's acts amounted to waging war. |
Court's Reasoning and Analysis
The court addressed each point sequentially. First, the sanction objection: it accepted the legal principle cited from Barindra Kumar Ghose v. Emperor that sanction must be specific, but distinguished that case because there the sanction gave general authority to proceed under any other section; here Ex. B specifically named two sections and left only which applied to proved facts, so the sanction was valid.
Second, on procedure under Clause 6 of Ordinance III of 1921 and Section 252, the court noted that Section 252 requires the Magistrate to "hear the complainant" and then to take evidence; nothing shown establishes that "hearing" requires examination on oath, no authority was produced to that effect, no objection was raised at trial and no prejudice to the accused was demonstrated, so the procedural objection failed.
Third, on the merits, the court accepted prosecution testimony that a large mob attacked police and military during searches for war‑knives, that the accused was in the front rank near the standard bearer, was later arrested in a mosque and ordered the mob to disperse; the accused offered no effective defense or cross‑examination. Independent witnesses corroborated that the accused, as Secretary of the Khilafat movement, had urged non‑payment of revenue, non‑cooperation, the subversion of British rule, destruction of government property, and an immediate attack on Tirurangadi; a banner with a non‑peaceful inscription used at the incident was produced. Applying the law on waging war (as stated in the cited leading cases), the court concluded these acts constituted waging war against the King under Section 121 IPC.
Finally, on sentence, the court found that the Lower Court had imposed forfeiture of property without awareness that forfeiture had been abolished by Act XVI of 1921 (assented 29 September 1921); that part of the sentence was set aside. Given the character of the occurrence, the court found no reason to interfere with the death sentence and confirmed it.
Holding and Implications
Appeal dismissed.
Direct effects: the conviction for waging war under Section 121 IPC was upheld; the sentence of death was confirmed; the order for forfeiture of property was set aside because forfeiture had been abolished by Act XVI of 1921 (assented 29th September 1921). The opinion applies existing authorities but does not purport to establish a new precedent beyond its application to the present facts.
JUDGMENT
The accused appeals against his conviction by the Special Tribunal sitting at present in the Malabar District of an offence punishable under Sect. 121 Indian Penal Code and his sentence to be hanged and to forfeit his property.
The first point taken is that the sanction of the Local Government which is required by Sect. 196 of the Code of Criminal Procedure is defective in that it does not specify with sufficient clearness the section or the offence in respect of which it is given, The sanction is Ex. B and it no doubt is a sanction for the proseputipn of the accused in the alternative for offences under Sept. 121 or under Sect. 121-A Indian Penal Code, It is urged that a sanction in the alternative is not such as the law contemplates and the judgment of Sir Lawrence Jenkins, C.J, in, Barindra Kumar Ghose v. Emperor(1) is relied on. We respectfully and fully accept the observations of the learned Chief Justice to the effect that “the sanction should be specifically directed to the particular sections of chapter VI in respect of which proceedings are to be taken, and that the order or authority should be preceded by and be the result of a deliberate determination that proceedings shall be taken in respect of a particular section or particular sections of the chapter and no other.” We agree further that “it would be opposed to the true intendment of Sect. 196 Criminal Procedure Code, for the Local Government, by its order to give its legal or other advisers a roving power to determine under what sections proceedings should be taken.” But we see no reason to doubt that those requirements are fulfilled in the present case. The present case in fact differs from that with which Sir Lawrence Jenkins, C. J., was dealing in toto, since the sanction there after specifying a number of sections gave a general authority to proceed under any other section which might be found applicable. Here the sanction is entirely specific and the only question left open, no doubt for the benefit as such of the Court which was to try the case as of the Prosecutor who was to institute the complaint, was which of the two sections specified applies to the facts which might be proved. We hold the sanction proper. This objection therefore fails.
The next objection taken to the proceedings is that they did not begin with an examination of the complainant by the Court. The procedure under Cl. 6 of Ordinance III of 1921 dated 5th September 1921 is to be that prescribed for warrant cases and no doubt the first incident in the trial of such a case under Sect. 252 is to be, that “the Magistrate shall proceed to hear the complainant (if any)” the section providing next that “he shall take all such evidence as may be adduced.” This however in no way assists the accused's contention that a trial without the examination of the complainant on oath is irregular. The expression used in Sect. 252 is “hear the complainant”. The taking of evidence is separately referred to. We have been shown no authority for holding that “hearing” a complainant involves his examination on oath. We may in dismissing this objection Observe that nothing resembling it appears to have been put forward at the trial and that it is not shown how the accused was in any way prejudicied by the procedure followed.
Turning to the merits we have the evidence first of the Deputy Superintendent of Police that the accused was seen in a crowd described as composed of two or three thousand persons which attacked the force of Police and Military, after it had had been engaged under the District Magistrate's supervision in searching for war-knives under the Malabar War Knives Act India Act. XXIV of 1854. The witness says that the mob came on against the force about two hundred Police and Military, that it attacked them with swords, knives, and bludgeons, that the Police had to fire in self defence and that it was only after nine persons had been killed and three wounded by that fire that the mob retreated to Tirurangadi and some of those composing it entered the mosque there. The Police and the Military followed the mob to and the first witness then saw the accused in the mosque. He knew him previously—how he knew him previously we shall explain—and asked him to come out. Accused was then arrested and, at the request of the first witness and others, he told the mob to disperse and it obeyed his directions. The second witness, the Deputy Inspector-General of Police, corroborates this evidence generally, except that he saw the accused only at the mosque. These are two witnesses regarding the actual occurrence. There is, it may be said, no evidence on this part of the case for the accused. He moreover attempted no cross examination. He merely denied that he was present as alleged, but made practically no further attempt to defend himself or to counter the prosecution evidence. In these circumstances we have no hesitation in believing that evidence and holding that the accused was in the mob, as the first witness alleges, and was, as the first and second witnesses allege, at the mosque and that after his surrender the other members of the mob dispersed under his directions. There is the further important fact, which also we accept on the authority of the first witness, that the accused was in the front rank of the mob on the right just by the standard bearer. It is objected to this part of the evidence that it was only given on the fourth occasion on which this witness was examined. It was given, however, in reply to a question put by the Court and we see no reason for doubting that it was a pure accident that it was not mentioned earlier or for thinking that it does not represent what the witness really saw.
The next question is whether these acts of the accused amounted or not to the offence of waging war against the King. Dr. Swaminathan on his behalf has contended that they did not. We are quite ready to recognise that in some cases it may be hard to draw the line between mere rioting of a serious nature., in which numerous persons take part, and the offence with which we are dealing. But we do not think it necessary to quote at length the law bearing on the case; for we have no doubt that the statement of it in the leading cases of Lord George Gordoni, and Regina v. Frost(2), fully supports the view we take of the nature of the offence of the accused in this case. The object of the mob was not merely resistance to the District Magistrate or to any isolated action, or for any particular purpose, but, as appears from the evidence, we shall next refer to, the total subversion of the British Power. That evidence is given by the fourth and fifth witnesses, the former a constable and the latter an independent land-owner. Nothing to their discredit has been alleged and here again the accused has given no counter evidence. They say, and it is apparently not denied, that the accused has for sometime been the Secretary of the Khilafat movement, which has an office at Tanur, within six miles of the scene of the occurrence. At meetings of the Khilafat movement, as the fourth witness deposes uncontradicted, it was urged that no revenue should be paid to Government and that those present should non-co-operate with it. The accused, there is evidence, preached these doctrines. It is said—and it is not contradicted by the accused, in fact the defence witness speaks to the fact—that he had already for some time before this occurrence been usurping one prerogative of the Sovereign power by holding a mock Court of justice of his own. On the morning of this occurrence the fourth and fifth witnesses heard him at a largely attended meeting at Tanur saying that those present must subvert the British Raj and establish the Khilafat Government and that all Government offices, railways and telegraphs must be destroyed. He said that all must start at once for Tirurangadi and destroy the British soldiers and the District Magistrate there. He had with him at that time a flag, which was being carried in the forefront of the crowd, when it attacked the District Magistrate and his forces. M. O. 1, there is no doubt, is the flag that was then being carried, since it was picked up on the spot by the Deputy Inspector General, 2nd prosecution witness. We have adopted the Court witnesses’ version of the inscription on it and taking that version in the form most favourable to accused without the word ‘combat’—the inscription runs:—“God the greatest. The Khilafat, go to work light mindedly and slowly and you will certainly succeed and God will be with you.” It does not seem to us that the substitution of ‘work’ for ‘combat’ in the connection? in which the word stands on a banner used in the circumstances in which it was used, greatly assists the accused's case; for with neither word can it be possible to regard the banner as a peaceful symbol. We have then that the accused was taking part in an organised armed attack on the constituted authorities, that attack having for its object, in the words of his own speech the subversion of British Raj and the establishment of another Government That being so, we concur without hesitation in the Lower Court's conclusion that the accused was guilty of the offence of waging war against the King.
The remaining question is as to sentence. The Lower Court apparently was not aware that the punishment of forfeiture of property had been abolished by Act XVI of 1921, which received the assent of the Governor-General on the 29th September 1921. In these circumstances we must set aside that part of the sentence.
In view of the character of the occurrence we can find no reason for interference with the sentence of death, which we therefore confirm.
K. V. S.Appeal dismissed.
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