Woodroffe, J.:— If one confines one's attention to the relevent and material facts in this lengthly case, the issue may be very shortly stated. The Plaintiff alleges that the Defendants, who were the District Magistrate, Deputy Superintendent and Inspector of Police, respectively, of Midnapore, in pursuance of their object, which is now (though not in the plaint) stated to be a wicked and concerted plan falsely to implicate in an imaginary “Bomb Conspiracy” “the respectable and wealthy inhabitants of Midnapore and other parts of India,” placed and connived at the placing of a bomb in his house. They then, he says, pretended to search it and “discovered” the bomb which they themselves had placed or knew to have been placed there. Falsely alleging that the Plaintiff's son Santosh Das was responsible for the presence of the bomb, they arrested and imprisoned him. Then subsequently they arrested the Plaintiff as well, not in the belief that they were entitled to do so as the owner of the house in which the bomb was found or otherwise, but in order to extort a false confession from his son that the latter had put the bomb in the house which they knew had been placed there in pursuance of a conspiracy amongst themselves. The Plaintiff was after his arrest kept in detention for some time—for more in fact than a month—after the confession had been secured, to obtain which he is alleged to have been arrested, and then discharged for want of evidence. His son Santosh and another accused were at first convicted by the Sessions Judge, but were subsequently acquitted on appeal by this Court. The Plaintiff now sues in respect of the alleged pretended search and trespass in his house, his alleged false arrest, inprisonment, and malicious prosecution.

The first and main issue therefore is whether the bomb was placed in the Plaintiff's house by and with the connivance of the Defendants as alleged. If it were so placed, then there was a pretended search, trespass, malicious arrest, imprisonment of the Plaintiff, and assuming that what was done constituted a prosecution in fact, it was a malicious one. The existence of all these charges follows be proof of the first, just as on disproof of the first all subsequent charges are negatived, if we confine ourselves to the case made in the pleadings.

Mr. Justice Fletcher, before whom the suit was tried, was of opinion that the Plaintiff had failed to establish his charge that the bomb was placed in his house as he alleged, but for some reason unexplained (unless it be that in his view of the suit as one on a general conspiracy to cause special damages, which, in my opinion, it was not, proof of one overt act was considered sufficient) omitted to come to any conclusion whether there was either a pretended search or trespass. Whatever may have been the learned Judge's reason or whether it was due to an oversight, we must, I think, assume that as he omitted to find on these charges in favour of the Plaintiff, it was because in his opinion the Plaintiff had not established them. Nor did he determine whether there had been a malicious prosecution, unless it can be said that such determination is involved in his finding on the next two issues, to which I now refer.

The learned Judge has, however, found that there was a malicious arrest and imprisonment, and has given the Plaintiff a thousand rupees damages therefor.

If, however, as the learned Judge has found, the bomb was not placed in the house by the Defendants or with their knowledge, then it was truly discovered by them there. If they then honestly believed that the Plaintiff as owner of the house or otherwise was so implicated by such discovery as to entitle them to proceed against him under the provisions of the Indian Explosives Act (VI of 1908), then the only question which remains for determination was (apart from limitation) whether the act in fact justified his arrest.

The discovery of the bomb was in itself primâ facie justification (though liable to be rebutted) for that belief, as also for the arrest, if the warrant was issued under a provision of the Act which authorised it. On this issue Mr. Justice Fletcher, holding that the District Magistrate Mr. Weston had not spoken the truth, and that the Plaintiff had found that the Defendants had no such bonâ fide belief in their right to arrest the Plaintiff, nor had they authority therefor. The issue then on the judgment (given according to the previous finding, the presence of the bomb) was whether the Defendants had such belief and authority: or to put the matter from the point of view of the Plaintiff, did the Defendants maliciously arrest him for the purpose and with the object of extorting a false confession from his son. I have said “on the judgment” because I here reserve the question whether the judgment has not travelled beyond the proper issues in this suit: and because Mr. K.B Dutt who appears on behalf of the Respondent has challenged all the findings in the judgment which are against him, and therefore we have as regards Mr. Dutt's client also to ascertain whether the bomb was placed in his house as he alleges but Mr. Justice Fletcher has nagatived.

The Defendants deny all these charges. Their defence, shortly stated, is this: The District of Midnapore at the time of the events in question was and had been for some time post in a very disturbed state, and Midnapore town was one of the chief centres of sedition. The Defendants received reports of a “Bomb Conspiracy,” as it is called, which they thought credible and acted upon. Learning from such reports that the Plaintiff's son Santosh had taken to and kept a bomb in his father's house they searched it. They found the bomb which they did not place there, but which on the faith of their informer's report they believed had been placed there by Santosh. The finding of this bomb, they contend, justified both the report received and the action taken on it, including both the search of the house, the arrest of the Plaintiff's son, and the arrest of the Plaintiff himself, who as owner of the house was called upon to explain its presence there. They deny that the Plaintiff was arrested as a means of extorting a false confession from his son. And they say that when after enquiries, including the confessions of his son and another co-accused, it was found that there were not sufficient grounds to further proceed against him, he was, some five or six weeks after his arrest, released on the 31st August, 1908.

The gravity of the relevant charges made doubtless justified a full enquiry. The trial, however, exceeded all ordinary limits and lasted some eleven months. The enquiry went with lengthy cross-examinations (that of the Deputy Superintendent of Police Maulvi Mazarul Huq, referred to shortly as “the Maulvi,” alone taking over one month and extending to between 800 and 900 pages) into various matters, which in my opinion are irrelevant, and at length presented itself last April before us in the form of twelve quarto volumes of some 10,000 printed pages. The appellate hearing has taken some three months, fourteen months in all having thus been occupied in the discussion of what is supposed to be the Plaintiff's case.

The latter, I should have mentioned, is an old man, formerly in Government service as a Sub-Registrar of Deeds. In the year 1884 he was dismissed from Government service in connection with his action in having returned, to a party presenting the same, a forged deed. Whether any moral blame attached to him in the matter, or whether it was merely a breach of departmental rules, does not appear. It may be, and I assume it was, only the latter. Years ago he was an Honorary Magistrate in virtue of office as Sub-Registrar, but he ceased to be that on his dismissal from the post of Sub-Registrar. His position at any rate in Midnapore was comparatively humble one, and his means appear to be modest. His son Santosh was employed as a probationer in the Police, and his other son Ashutosh in the Post Office.

The evidence given in this suit covers a period extending from the Partition of Bengal in 1905 to the decision of this Court in what is called the Midnapore Bomb Conspiracy Case in June 1909. Generally speaking, the evidence and judgment relating to this period discusses the political condition of Midnapore, the action of Government, the conduct of the district officials as regards not only the Plaintiff but third parties, the conduct of other officials who appear at different stages of the history, the decisions of this and other Courts in other Midnapore cases, the provisions of the Criminal and Jail Codes, and other, matters with an exhaustive particularity which covers practically all administrative and judicial acts, which on the widest principles of admissibility can be said to precede, concern, or follow the alleged “Bomb Conspiracy” and connected matters between 1905 and 1909.

It is therefore not without reason that this case, which in the ordinary course would be entitled after the names of the actual litigants, has been known as. “The Midnapore Case”. But it is not only the extensive nature of the enquiry which justifies such an appellation. For I have no doubt that this suit is not the Plaintiff's suit only (if it is his suit at all), but that he is the mouthpiece of others whose implication, and possibly in some cases false implication, in the alleged “Bomb Conspiracy” or other personal reasons have caused them to prompt or support this suit with its extraordinary and as I find malicious charges. Mr. Weston seems not to have been a popular man at Midnapore with the Nationalist Party, whether of the right wing or “soft”(naram) or Moderate Party, of which Mr. K.B Dutt was a leader, or the left or “hot”(garam), or as it is called Extremist Party. It is idle to suppose that a man of somewhat humble position and modest means, and who is so chary of expending them as to be described by his witness Bonomali as a miser, should, for the sake of the Rs. 1,000 which Mr. Justice Fletcher has given him, prosecute-and carry on a suit for over fourteen months at the necessarily enormous cost involved. His real interest, if he had any, would in fact have been injured, as his real case has been embarrassed, by the introduction of charges which are not necessary to it, however they may have served the purposes of others. It would have been feasible for the Plaintiff to have framed a suit for illegal arrest (which is the Plaintiff's real cause of action, if (he has any), along in fact the lines of the alternative case put before us by Mr. Dutt, without resorting to the mass of charges of fraud which have encumbered this suit and have helped by their failure to discredit it. It is these charges also which have helped so largely to contribute to the great volume of this suit, which is probably as Mr. Dunne put it, one not merely (if at all) to right the supposed wrongs of a somewhat obscure resident of Midnapore, but of those other more wealthy or influential inhabitants of that town who conceived themselves to be aggrieved by the action of the Defendants taken by them during their administration of the District. The Defendants have in fact been called upon to justify their informer's reports not only as regards the Plaintiff's son, who took the bomb to his father's house, but also as against as many of the other persons implicated rightly or wrongly by those reports as the Plaintiff chose to call. As I pointed out at the hearing, there was no reason but the relative moderation of the Plaintiff, or the limitation of his purse, or those of his supporters, which on the principle on which evidence has been admitted in this suit, stood in the way of his calling every one of the 154 persons implicated by the reports and supporting the statements of each of such persons by such further corroborative testimony as he thought fit.

Mr. Justice Fletcher at one time seems to have been sensible of the dangers ahead, for he is recorded as having remarked to Mr. Dutt that he must be careful not to introduce other cases into this. Learned Counsel, however, was able to persuade the learned Judge that all that he introduced was part of a conspiracy. The question was not that, but whether it was part of the particular conspiracy mentioned in the pleadings. A suit possibly might have been brought by one of the persons claiming to be falsely implicated by the reports, in which, if such a conspiracy as has been here tried was alleged, evidence of the character now adduced might have been admissible. But this is not such a suit, and the conspiracy alleged in the plaint is different both from that which has been tried and that which has been found by the learned Judge.

A considerable portion, which is said to be one-sixth of the record, is concerned with the alleged ill-treatment in Jail not only of the Plaintiff but of his son Santosh and a third party, Surendro Mukerjee, unconnected with either save as co-accused of the latter. All this evidence has had eventually to be ruled out, as it was not shown that the Defendants were in any way connected with it even if it were true, which is denied. This evidence, in my opinion, should not have been admitted at all. Assuming it was all relevant, which I am not disposed to think, it should not in any case have been admitted until it was shown that the Defendants were connected with the ill-treatment alleged. Several witnesses have been called merely to prove the fact that this Surendra Mukerji was kicked by one of the Police Defendants, and other evidence has been given which is of equally little assistance in the determination of this case. There is also a considerable body of charges against officials other than the Defendants and also against the Police, which I deal with separately at the conclusion of the judgment, and which sometimes directly, and in other cases only remotely, if at all, affect the issues which were allowed to be raised. The Defendants have also introduced some evidence of doubtful necessity and gone into it with some unnecessary prolixity, but of them it may be said that they were driven to do so either to meet evidence which was permitted to be given for the Plaintiff or to prove facts which the learned Judge has found to exist, though the Plaintiff's Counsel unreasonably refused to admit them.

Were I to deal with only what is absolutely necessary, it would be sufficient to say that the Respondent has not been able to disturb Mr. Justice Fletcher's finding that he had not proved his main charge on which his whole suit turns—the alleged introduction of the bomb. I should then point out that both Appellants and Respondent admit that other findings of the learned Judge are inconsistent and cannot stand; that his finding that the reports (upon which the search of the bomb was made) were wholly false was inconsistent with the previous finding that a bomb was in fact discovered, which therefore corroborated the reports. For the same reason, I should point out that the learned Judge's finding that the Police Defendants knew the reports to be all false could not stand when the discovery of the bomb (and I may add also of another) showed that the reports were not all false and were at least not false in that very particular which is the material one in this case. The same grounds which lead to the conclusion that the Defendants had, by reason of the discovery of the bomb, ground to believe in the reports which spoke of its possession by Santosh would also show that they had ground for believing in his confession Which admitted possession of such bomb. These and other considerations would further show that whatever may have been the object of the Defendants in arresting the Plaintiff, it was not to procure a confession from Santosh which they knew to be false. But this was what the Plaintiff alleged, and according to the judgment, of the learned Judge, has failed to prove. His suit should therefore have been dismissed as the Appellants contend. I should have then pointed out that the learned Judge has only avoided the natural conclusion to which his previous and other findings in the case should have led him by adjudicating on a new case for the Plaintiff, not that in the plaint and which was inconsistent with it. It would only have then remained to show that even if it were open to the Plaintiff, as it was not, to make such a new case, he had not established it in fact, and then to have proceeded finally to enquire whether the suit was not barred.

Our judgment has, however, been invited on all the facts by reason of the charges of crime and fraud involved and I have therefore thought it my duty towards the parties, and in particular towards the Defendants, who are affected by these charges, to express my opinion thereon. As the case has been allowed to proceed beyond its proper limits, it must necessarily be the case that my judgment Which must follow it is a more lengthy one than would have been otherwise necessary. Whilst therefore I propose to examine all the evidence I do not assent to its being all relevant. Indeed, the bulk of it on a proper construction of the pleading is in my opinion not relevant. At the same time my own opinion as to such relevancy does not in any way affect the conclusions at which I have arrived, as I have taken into consideration all the evidence laid before us and other evidence I have myself read except the opinions of Judges, the alleged admissions of Counsel and evidence in other cases on which the learned Judge has in some instances relied, but which it is conceded before us are inadmissible.

The charges made are of the gravest possible character and such that if they be established, then not one of the Defendants is fit for further public employment. The peculiarity of this case is that they are not, as is usual, directed against the Police only (who in this case happen to be officers of long service and good record, the Maulvi also as Deputy Superintendent occupying an exceptionally high position) but also against the District Magistrate Mr. Weston. It is alleged that he, who as such Magistrate was at the head of, and responsible for, the proper and just administration of the district, was himself a party to a very malignant criminal conspiracy (the other members of which were his subordinates, the two police-officers) to falsely implicate persons whom he knew to be innocent, and that for the purpose of such conspiracy he and they stooped to such base acts as the introduction of bombs into other people's houses, concocted false informer's reports, or acted on reports they knew to be false, arrested and imprisoned and ill-treated persons they knew full well to be innocent, suborned false evidence and were themselves guilty of forgery and perjury. In the course of this suit in which the gravest charges have been launched broadcast with a light hand the Plaintiff or his witnesses have further charged a number of other gentlemen not parties to it with misconduct in connection with this case.

Mr. Macpherson, Commissioner of Burdwan, Captain Weinman, I.M.S, Mr. Brett, Assistant Superintendent of Police, Mr. Nelson, Joint-Magistrate, Colonel Buchanan, Inspector-General of Prisons, Babu Surendra Nath Chakravarti, Deputy Magistrate, Mr. P.K Bose, Counsel of the English Par practising at Midnapore, Mr. Hadrill, formerly a member of the English Bar and now a Solicitor instructing the defence, have all been charged with varying degrees of misconduct, some of the grossest character, not merely dishonest but criminal. As these gentlemen are not alleged to be conspirators against the peace of the loyal and law-abiding inhabitants of Midnapore, we are asked to hold that they have all of them deserted in different ways and degrees the character to which they presumably owe their respective positions in order to unjustly and maliciously pursue the Plaintiff and his son Santosh Das with whom they have no personal concern.

Having regard to the extraordinary character of all these charges, the responsible position and primâ facie respectable character of the persons against whom they were made, and the unsatisfactory manner in which they had been put forward, I was at pains to endeavour to elicit from Mr. Dutt what his case (shift as it did throughout the trial) precisely was, how he supported it and met the numerous objections which the Appellants on a careful analysis of the judgment and survey of the facts had made against it. Were the Court in the hearing of suits to consult merely its own personal comfort in disregard of public time and money and at the risk of doing injustice through failure to understand a litigant's case, it might let advocates argue at large and then dismiss their case if that argument did not seem to be sensible. But as the Court has a duty in this matter to examine, understand, and test the case, particularly where charges of fraud and the honesty of the litigants are in issue, so advocates for the party preferring such charges have a duty both to the Court which is asked to adjudge on them and to the Defendants against whom they are made. And here Mr. Dunne has anticipated some remarks I had intended myself to make. It has been said before now that fraud which by its very nature is secret in its movements is in a large number of cases not capable of establishment by positive and express proof. Whilst circumstances of mere suspicion are no proof of fraud, resort must probably in the generality of cases he had to circumstantial evidence and the inferences derivable therefrom. No one therefore would complain of a Plaintiff having to depend on theory in regard to a case of fraud, for in a large measure its establishment must depend on theories and inferences from the facts proved. But what is required of a Plaintiff is that he should at least know and formulate precisely what the fraud is which he alleges and against whom he charges it, and he should be able also to definitely formulate in an intelligible way what his theory and scheme is and how it fits in with the facts. This Mr. Dutt was unable and as it appeared to me unwilling to do. At length when questioned he stated that he preferred to take his case in his own way. I pointed out that there was the risk in so doing that learned Counsel and the Court, particularly in a case of this magnitude, might overlook the particular point. Mr. Dutt, however, appears to have been willing to accept this risk, for though he on occasions returned to his subject, he did not return to the point. This is not the way a case should be presented to the Court. I need not say, however, any more on this aspect of it beyond this, that the failure to meet and indeed the evasion of the objections taken by the Appellants have convinced me as much as the arguments of the latter that in respect of the graver charges and the main issues of the suit the Plaintiff has no answer to them. I only here wish to add that the remarks I have made do not apply to the junior Counsel Mr. Bose, who, though obviously oppressed at times by the difficulties of his case, was always ??? manner such explanation of them as he could.

The other aspect is, however, to my mind a more serious one. Duty to the opponent in a case of this kind means the possession of a sense of ordinary fairness. Charges should be formulated and not merely hinted at. A charge may be met, but not a suspicion. The charge, if there is anything in it, should be put forth in a precise form and then pressed in that form, and not in some changed form, by all honest means. But if Counsel thinks that he cannot reasonably formulate or support it on the evidence it should be withdrawn. I observe, however, from the record that Mr. Dutt claimed (unless specially directed by the Court) the right either to state or not state his case to the Defendants as he chose, just as he claimed to regulate the civility which he should extend to their witnesses. I need hardly say that charges of fraud cannot be kept up the sleeve and then sprung on the opponent when it is thought that he is least likely to be able to meet them. Further, the charges have not only lacked definition, so that it is not possible even now to exactly say on some points what the Plaintiff's case is, but they have shifted throughout the whole length of the trial and appeal. The case was in fact on one or another material particular differently presented to the Court in the plaint, in the opening of Counsel, at the trial, and in the appeal. And the learned Judge in conclusion has in my opinion found a different case from that made in the pleadings and in some respects from that suggested in the opening of Counsel or at the trial.

It is a well-known and fundamental rule not of technicality but of substance that when fraud is charged the plaint must set forth the particulars. Then evidence must be confined to the allegations. The charge must be substantially proved as laid, and when one kind of fraud is charged another kind cannot on failure of proof be substituted for it. The necessity of these rules is obvious, being founded not on any technicality of law but on grounds of essential fairness. If you make a charge you must tell your opponent fully what it is, so that he may be able to meet it. You cannot shift it during the trial for the same reason. And what the party cannot do the Judge cannot. The Court must decide according to the allegations which the party is permitted to make. It decides a case and does not make one. If the case as framed does not commend itself to its judgment it should dismiss it. It cannot decide it on some other ground because it thinks that ground is more credible than the Plaintiff's allegations, or because it thinks that the Plaintiff might have made a case in another way and on which if he had, he would have been entitled to succeed. What Mr. Justice Fletcher has in effect done is this: he has either rejected or held not proved the grosser charges which the Plaintiff has made and on the proof of which in fact depends his whole case made in the plaint. The principal charge, the alleged introduction of the bomb on which all the rest depend, the learned Judge has, however, treated as though it were an almost negligible incident in the case instead of being, as it is in fact, its keystone. He has then substituted for the case as made in the plaint another which stands independent of the proof of the charges (which he has found to have failed) and which is of a different character from that stated in the plaint and which the Defendants were not summoned to meet.

I will now proceed to examine this matter in detail so as to discover what the issues are which have been tried or should have been tried. I cannot, however, without unduly lengthening this judgment on a preliminary point, deal with all the shifts and changes in the Plaintiff's case. I take only such of the chief items as are sufficient to justify the observations I have made.

I start with the notice of suit given on the 31st August, 1909, not because such notice was in fact necessary but because it indicates the root of the developments which followed it. That notice charged that all three Defendants acting in concert maliciously arrested the Plaintiff with the object of extorting a false, confession from his son Santosh. Nothing is said of malicious trespass, search or prosecution.

This was followed by the plaint filed on the 15th November, 1909. The suit is there described as one for wrongful confinement and malicious prosecution for which damages are claimed. It implicates all the Defendants in equal degree as joint tortfeasors.

The torts which they are alleged to have conspired to commit are,—firstly, malicious search and trespass: and, secondly, malicious arrest, imprisonment and prosecution of the Plaintiff; their object in so doing is alleged to be a desire to injure him personally in his good name, fame, reputation and loyalty as also to extort a false confession from his son. The meaning of these two sets of charges are as subsequently explained in the opening of Counsel and the evidence as follows:— the meaning, of the charges of ??? Defendants are said to have searched the Plaintiff's house on the strength of the reports of a teal informer, one Rakhal Chunder Laha. The reports were false. One of such reports falsely stated that the Plaintiff's son Santosh had carried a bomb into his father's house. The Defendants knew this and the other reports to be false. Nevertheless what they did was this. Dr. Bankim Chunder Ghose, now in charge of the Victoria Hospital, Hatwa, prepared an experimental bomb for the Moulvi who is said to be his friend. For this service the Doctor was, on the recommendation of the Defendants (as stated originally) or the Moulvi (as now stated), honoured by Government with a title. Then apparently the necessary knowledge having been gained, the Defendants conspired to put a bomb in the Plaintiff's house in accordance with the false report on which they intended to act, in order to implicate the Plaintiff's son. Before doing so and in order to facilitate their designs they had his brother Ashutosh Das suddenly transferred from Midnapore. The Moulvi had previously through the agency of a constable, called Kartick Singh, interviewed a boy, called Bonomali, who was an inmate of the Plaintiff's house. He promised to take the boy into his service and told him to come again. The boy did so on 7th July, and the Moulvi then gave him a bomb with instructions to put it in the Plaintiff's house, in pursuance of the conspiracy in which all the Defendants were concerned and of the acts done in the course of which conspiracy they presumably had knowledge, as they also had liability therefor. This the boy did on the 7th July. Immediately after the bomb had been so placed a search-warrant a pretended search took place at which of course the bomb was discovered which the Defendants had conspired to put there. Santosh Das was then arrested on a false charge and taken to prison.

The meaning of the next set of charges as so explained is as follows:— The Defendants then attempted by persuasion and threats to get a false confession from Santosh that he had placed the bomb in the house which the Defendants knew had come there through their own criminal conspiracy. They, however, failed. In order then to put further pressure on him to falsely confess they arrested his father, the owner of the house, who they necessarily knew to be wholly guiltless in the matter, for they themselves had put the bomb there. Even this had no effect until it was represented to Santosh that if he confessed his father would be released. The arrest of the Plaintiff was of course under such circumstances necessarily not merely illegal but criminal.

Before I pass to the opening of learned Counsel for the Plaintiff, I here pause to point out the exact intendment of the plaint. It is a well-constructed pleading and hangs together in all its parts. The base of all its allegations is the charge that the Defendants in pursuance of a conspiracy between themselves put the bomb in the Plaintiff's house. Let us assume that fact. What follows? In the first place there was a malicious search and trespass, for the Defendants were not entitled to go into the Plaintiff's house on the pretence of search for a bomb they had put there themselves. Nextly, there was for the same reason a false arrest of the Plaintiff's son Santosh. For the same reason there was a false arrest, imprisonment and prosecution of his father, the a confession which they knew to be false. They knew this fact directly for the same reason, viz., that they had put the bomb there. Every charge therefore follows on proof of the first which is the basis of the Plaintiff's case. So vital is it that notwithstanding Bonomali's story has not been accepted by three Courts before it was put to us yet the Respondent insisted, and from his point of view rightly, in again pressing the story for our acceptance notwithstanding these adverse decisions.

Now let us assume that basis is not proved or disproved which in legal result is the same. Then the Defendants did not put the bomb in the house. As the discovery of the bomb corroborated the report on which the search took place, there was ground on the facts proved for belief that both the Plaintiff as owner of the house, in a public room of which the bomb was found, and his son Santosh as the person reported against, were accountable. Both were liable to arrest. The plaint alleged that the Plaintiff had been arrested, though the Defendant knew him to be innocent. They were charged to be aware of his innocence in a particular manner, viz., because they had themselves put the bomb in the house. With disproof of the latter fact follows disproof of the former allegation. Again they were charged with having arrested the Plaintiff (who on the ground stated they knew to be innocent) with an object. That object was to extort a confession from Santosh which was, and which they knew to be, false. But how did they know it to be false? Again because they had themselves put the bomb in the house, the responsibility for which they were pressing him to admit. If they did not put the bomb in the house they could not know his alleged in the plaint. In short, the whole scheme of the plaint is an introduction by the Defendants of the bomb and illegal action taken thereon and thereafter with a direct (and not inferential) knowledge that neither Plaintiff nor his son were responsible in respect of the bomb—a case in fact of direct and positive fraud. With therefore the failure to prove the basal fact on which the rest of the allegations of the plaint rests the other allegations also are not proved I have analysed this matter in close detail because it is necessary that this point should be fully grasped in order to understand how much the case shifted and how far removed is the case found by the learned Judge from that which is made in the plaint.

I now pass to the opening of Mr. Dutt on the 17th August, 1910. Here the first step is made towards the enlargement of the conspiracy, the principal object of which was then alleged to be not to injure the Plaintiff and not even primarily to implicate his son but to implicate in an alleged “Bomb conspiracy” “the respectable and wealthy men of Midnapore and other parts of India” from whom to continue to use Mr. Dutt's words, “the investigating officers” hoped to levy blackmail. The Defendants' object was not merely to implicate Santosh but as many of such other persons as possible through the instrumentality of false witnesses, fabricated evidence, and false confessions not only of Santosh but of others.

I pass to the issues. There is nothing about a general conspiracy to cause damage in the plaint, which as I have said describes the suit as one for malicious imprisonment and prosecution. The learned Judge, however, notwithstanding was not bound by the description which he had himself given of his own pleading and framed two issues which extended the suit which was one against joint tortfeasors in respect of certain specified torts to one of a general conspiracy to cause damage to the Plaintiff of which tortious transactions alleged as, and which were, his real cause of action were made merely the overt acts.

Evidence was then gone into. After the conclusion of the examination of the boy Bonomali on the 26th of August it must have become apparent to the Plaintiffs Counsel that reliance could not be expected for this evidence alone. The story had gone unless something else could be brought in to show that it was a probable incident in a wider scheme. Therefore in the months of September to November 1910 (the earliest objections that I note are at pages 2694 and 2873 of the paper-book), a case of still more extended conspiracy was put forth. It was then suggested not merely that the Defendants had conspired to implicate “the wealthy and respectable inhabitants of Midnapore and other parts of India” in an alleged “Bomb conspiracy,” but that in a district free, or practically free, of sedition, the Defendants has conspired together to invent the “Bomb conspiracy” itself in which these wealthy and other persons were to, be implicated. The conspiracy itself in short was the outcome of their own very wicked imagination. The charge then assumed a colossal form. There was first what Mr. Dutt calls a primary conspiracy. That which was alleged in the plaint became only a secondary conspiracy. The former was alleged to be the motive and cause, the latter the actual cause of action. The primary conspiracy by the Defendants was to invent another imaginary bomb conspiracy at Midnapore and then to implicate the wealthy and other persons there and elsewhere in it. The secondary conspiracy was merely instrumental to the first. The plaint alleged a conspiracy to injure the Plaintiff. But it was then said he was not really aimed at. It was not the predominant intention of the Defendants to injure the Plaintiff whatever in fact the results of the Defendants' act might in fact be. Indeed, there was no grudge, personal spite, or other personal motive against him at all. Nor except as a means to an end was his son Santosh aimed at. What the Defendants were, it was said, really aiming at was to injure the wealthy and other inhabitants of Midnapore and other parts of India and to “net” as many as they could in a spurious and invented conspiracy. The Plaintiff and the rest of his family, persons of somewhat humble condition and modest means, were to be the mere instruments of this wider purpose. They were to be such instruments in this way that through their extorted and false confessions the wealthy and respectable citizens might be falsely implicated. This extension of the general conspiracy involved also extensions of other charges. On the previous case only the report of the 7th July and those directly connected with it could be said to be relevant because they alone implicated Santosh. Now the Defendants were called upon to defend themselves in respect of all the reports and all the charges made against all other persons in those reports, the Raja of Narajole, Jamini Mullick, and numerous others of whom some thirty have been called as witnesses. The previous case as to the reports was that they were the work, though false, of a true informer. Though this was kept up through the trial, an alternative and inconsistent suggestion was also then put forward, viz., that the reports were the inventions of the Defendants or some one or other of them. These theories again involved three different cases as to the Defendants' alleged knowledge of the falsity of the reports and the Plaintiff and his son's innocence. From the resulting entanglement the Defendants were invited by the Plaintiff to extricate themselves as best they could. First there was the original case that the Defendants directly knew that the Plaintiff was innocent and that the report concerning Santosh was false because they had put themselves or caused to be put the bomb in the Plaintiff's house in respect of which they accused the Plaintiff and his son. Then there was the case that the Defendants knew that all the reports were false not only as regards the Plaintiff and his son but every one else implicated by them, for they had invented these reports themselves. Thirdly, there was the case on which Mi. Dutt says the learned Judge also went that though it might not be proved that the Defendants put the bomb in the house and therefore had direct knowledge of the falsity of their case against the Plaintiff and his son, and though the reports might not be of the Defendants' making, yet they were so false and so incredible on their face that the Defendants as honest and intelligent men should not have believed them as regards any of the persons implicated thereby, and if they did they were liable. We then get another extraordinary variation. The case opened was that Bonomali put the bomb in the Plaintiff's house before the search. A second case was then made, destructive of the first, that not Bonomali but a constable called Asadullah put the bomb in the house, and that he did this not on the day before the search but during the course of it having come into the building without having been previously searched himself. This novel suggestion, which has not been without its effect on the judgment, was made as late as the 2nd June, 1911, after the close of the Plaintiff's case and after 42 witnesses had been examined for the Defendants to no one of which was the point put. Then to the case that Santosh was arrested to extort a confession of his own guilt was added the suggestion that the primary object was to get him to implicate wealthy and other third parties. To the case that the Plaintiff was kept in prison in order to extort a false confession from his son was added the charge that he was also kept there to extort another false confession from his other son Ashutosh and from a stranger Surendro Mukherjee. Then it was argued that even if it were not proved that the Defendants had conspired to put, and had put, the bomb in the house, and that the Defendants had arrested the Plaintiff to extort a false confession as alleged, still the Plaintiff was entitled without proof of these fraudulent acts to a decree. Finally, as Mr. Dutt admits, when the Defendants' case and argument was closed and Mr. Dutt was in his reply, he argued that the arrest having been as he contended under sec. 6 of the Explosives Act, the Defendants were not in any event authorised to arrest the Plaintiff as they claimed to have done as owner of the house under sec. 5. The previous assumption on which the trial had proceeded and in which Mr. Dutt had expressly concurred was that the arrest was effected under sec. 5, and that the statement in the plaint that it was under sec. 6 was incorrect, as it in fact was, for we have the warrant itself which shows that secs. 4 and 5 were the sections actually invoked. If, said Mr. Dutt at the opening of the case, Mr. Weston had arrested the Plaintiff on the 8th July, then no question could have been raised. At the conclusion of the case the argument of Mr. Dutt was that Mr. Weston could not have arrested the Plaintiff on the 8th July or at any other time.

Finally in appeal, the previous case having apparently been (to use the words of Santosh Das, who in this represents the tenor of the evidence of the rest of his family), that there was a conspiracy in which Mr. Weston was implicated “from start to finish,” we were told that neither Mr. Weston nor Babu Lal Mohun Guha, though fully in the conspiracy at the end of May had any knowledge of the introduction of the bomb on the 7th July, but that they came to know it afterwards (when is not clear, nor how; or through whom is not stated) for, Counsel added, these conspirators must at least have had reason to believe (the grounds not being stated) that the Maulvi had in pursuance of the common conspiracy put it there. Then as regards the reports we were first told that Counsel's case was that the Defendants or some one or other of them concocted these reports. Later we were told that they were not concocted but the genuine though false reports of Rakhal Laha. And then upon my brother Coxe asking whether this answer applied to the report of the 7th July, Mr. Dutt said he would except that particular report which he alleged to be concocted, though no such exception had ever been taken nor suggestion made before, all the reports having been dealt with in previous stages of the case on the same footing.

I find at pages 8167–8168 of the paper-book that Mr. Dutt put a question to Mr. Weston, upon which the Court observed “you are putting your case very high,” and then stated what it understood the Plaintiff's case to be. Mr. Dutt then assented “yes, that is my case”. Learned Counsel then put another question to the witness, on which the Court again interposed stating a case to which learned Counsel said “that is certainly a part of my case”. Learned Counsel then put another question. The Court again interposed with an observation as to what its understanding of the case was, and then Mr. Justice Fletcher, who was naturally puzzled by these acceptances and departures from his statements of what he understood the case to be, was at length constrained to observe “that the case has moved a little”. The case has in fact moved throughout its entire length as regards all its items, including the conspiracy alleged, the reports, the alleged knowledge and belief of the Defendants, the alleged introduction of the bomb and the Plaintiff's arrest. These constant shifts which have been gravely prejudicial to the Defendants also indicate that in respect of the matters so shifted the Plaintiff has no definite case founded on fact. It has been variously stated from time to time not because of any reason founded on fact but either in the hope that the charge in some form or other might be got home or because the exigencies of a defeated argument demanded it.

Mr. Dutt's only explanation of his departure from the rules which govern a case based on fraud is the surprising one that the Defendants have not been prejudiced and that their case at any rate has been found to be false by the learned Judge. The Defendants have in fact been gravely prejudiced and have been defeated precisely because of the breach of the rules to which I have referred, and because of the learned Judge's views on the facts put forward as the result of such breach. I need not enlarge on what is so obvious, the difficulty in meeting undefined and shifting charges, the cost and trouble to which the Defendants have been put in having to sit out a trial of eleven months whilst they have been made, and the prejudicial effect they are likely to have both on the mind of the Court and the possibility, which in this case has ripened into fact, that in this volume or irrelevant matter the real issues might be lost sight of. As to the first matter I observe that the learned Judge discredits a statement of the Defendants' witness Asadullah made with reference to the search for the bomb because Mr. Wilson, a witness who preceded him, had not been questioned as to its subject-matter. The learned Judge, however, overlooked the fact that Mr. Wilson could not have been asked about the matter, as when he was examined the Plaintiff's novel charge that it was Asadullah who had put the bomb in the Plaintiff's house had not then been raised. The Defendants could not be expected to foresee in this case of shifts and surprises when and in what direction the next step was going to be. This incident illustrates the dangers of the latitude allowed the Plaintiff. It is also not the least disadvantageous result of this excessively lengthy and unduly complicated case that the learned Judge has not in this and other important matters to which I later refer been able to correctly recall the evidence given and the facts which occurred at the trial.

I will now refer to the judgment. In doing so it will be convenient to distinguish between its state as it was originally delivered and as it now is after the addition which was subsequently made and which appears at p. 9128. I may here say that no one does or can question the propriety of this addition. It was open to the learned Judge to revise and add to his judgment as is commonly done. And in this case he was the more entitled so to do as copies of his judgment were only granted during his absence subject to his revision. What is, however, contended for is that the addition made does not represent and is inconsistent with the considered judgment which was delivered in Court.

I will consider therefore this latter judgment first. Neither in this nor in the revised judgment does the learned Judge come to any finding as to whether there was, or was not, any malicious search and trespass or prosecution. There is also an absence of findings on matters incidental to these and the other issues. I may mention some of the more important, viz., as to whether there was such a primary and secondary conspiracy as alleged and whether the reports were those of a real informer or not. There are passages which seem to imply the affirmative. Elsewhere, however, the learned Judge speaks of the “alleged” reports and expresses the opinion that it is not probable that a drunkard, such as Laha is said to be, evolved the reports, and states that in the absence of the latter it is impossible to say who wrote the reports on which so much is made to turn in this case by learned Counsel for the Plaintiff. Nor does the learned Judge find whether Santosh's confession that he put the bomb in the house is true or false. It would certainly have been more satisfactory if the learned Judge had given his judgment on these issues and important points. But as he has not, it must be assumed that according to his judgment and having regard to what he does find (to which I next come) there was no malicious search or trespass, no such primary or secondary conspiracy as alleged and real reports. As to the latter if, as is the case, the learned Judge was unable to determine who was the author of the reports, we must assume that they were the work of Laha which they purport, and which the Defendants' evidence discloses them to be: If it is alleged by the Plaintiff that the reports were invented by some one else, the Plaintiff has to prove it. Similarly, as regards the confession, as the learned Judge according to his original judgment did not find it to be false, we must assume that this was because he found himself unable to do so.

What the learned Judge does find is this. He finds, firstly, that the Plaintiff has not proved that which is the basis of his suit, viz., his allegation that the Defendants were responsible for the presence of the bomb in his house. He next finds that the reports are false and that there is no truth in the evidence of the Defendants' witnesses which corroborate certain incidents in them. He then makes a distinction between Mr. Weston and the Police. The former, he says, misled by the Police, believed these false reports grossly improbable as he finds them to be. Mr. Weston is also found to have believed that Santosh's confession was true. It is found that the Police, though it is not suggested that they had other information Which Mr. Weston had not, did not believe either. The reasons which the learned Judge assigns for this distitinction are, as regards Mr. Weston, that he had his house guarded by armed constables. The learned Judge does not say in connection with this passage whether Mr. Weston did so under a reasonable apprehension of danger. During, however, the course of the case, he made the following remark to which our attention has been called: “Two policemen played upon Mr. Weston's fears and Mr. Weston fell into the trap”. From this observation it would appear that the precautions which Mr. Weston took for his own safety were due to lack of courage, and that there was no real ground for them. As, however, the remark was made during the progress of the suit and before the Defendants' case was concluded, we cannot treat it as having been intended by the learned Judge to be a finding in the case. In fact his subsequent judgment when he had considered the evidence does not seem to support this reflexion on Mr. Weston's courage the observation suggests that there was no conspiracy except what was got up by the Police and Mr. Weston was put into groundless fright by the trap they set for him. The judgment does not find any such concoction of a conspiracy by the Police, but on the contrary that there was a real criminal conspiracy at Midnapore which was in a highly seditious state, and which conspiracy as the learned Judge finds included Satyendra and Khudiram, both of whom were subsequently hanged. The evidence further proves that Mr. Weston's life was threatened. In my opinion there is no ground for the conclusions involved in the learned Judge's observation, if it was not, as I think it may have been, merely a passing remark recalled in effect though not in words by the judgment. The proved state of the district and the actual attempts made on the life of officials in other parts of India, such as that upon the life of Mr. Kingsford at Mozufferpur, resulting in the deplorable death of two unfortunate ladies and Mr. Allen at Goalundo and other similar attempts, fully justified Mr. Weston in taking the precautions which he did. The learned Judge also finds that Mr. Weston did take some steps to satisfy himself that the reports were true. Mr. Justice Fletcher next finds that the Police did not believe the reports. This he infers from what he finds to be “the procuring and attempting to procure false evidence, the tutoring of confessing prisoners and others by these two Defendants”. He then proceeds to deal With the issue of false arrest and finds that there was a conspiracy to arrest the Plaintiff by all the Defendants who did not believe that the Plaintiff was accountable in respect of the discovery of the bomb, but did so to put pressure on the Plaintiff's son to confess and not to extort a false confession as alleged in the plaint. It is clear on the judgment that the learned Judge thought that Mr. Weston's object was to obtain a confession of facts which he believed to be true. Though the learned Judge finds that the Police did not believe the reports he apparently excludes that portion of the reports which refers to Santosh. For he finds that they also conspired to put pressure to obtain not a false confession but a confession and if they had disbelieved the reports which implicated Santosh, then their object must have been to extort a false confession which is not found. On this ground of malicious arrest the learned Judge decided the suit.

To this judgment the learned Judge subsequently added the sentence after his conclusion that the Plaintiff had not proved that the Defendants were responsible for the presence of the bomb in the house: “I am unable to say who placed the bomb in the house, but in my opinion Santosh did not”. As I have pointed out in the original judgment the learned Judge omitted to find whether Santosh's confession was true or false. If it was true, there was an end at once of the charge against the Defendants in respect of the alleged placing of the bomb. The learned Judge did discuss this confession; but from the point of view of certain alleged irregularities in the taking of it, which were immaterial if the confession was itself false. It is argued, and I think with reason, that the general tenor of the original judgment shows that when it was delivered the learned Judge was unable to come to the conclusion that Santosh did not put the bomb in the house and therefore abstained from a finding on the question of the truth of his confession though a finding one way or another was necessary. We must, however, take it that even though there is now no formal finding on the point the added remark necessarily implies that the confession was false. But for this added conclusion no reasons are given.

These findings have been attacked by both Appellants and Respondent on three grounds. Both parties agree on the first two grounds. The Appellants alone take the third ground.

In the first place both parties claim that they were entitled to a decision on all the issues raised and on the points incidental to those issues. As I have said in the absence of any finding on a particular point we must assume that on such points the learned Judge was not satisfied that the Plaintiff, on whom the general onus lay, had made out his case.

In the second place both parties take exception to the judgment on the ground that its findings are, as is I think the case, inconsistent. Mr. Dunne on the one hand has pointed out, and Mr. Dutt on the other admits, that if the allegation that the Defendants put the bomb in the house be negatived, as Mr. Justice Fletcher has done, then the search was not as alleged a pretended search, but the bomb was truly discovered as a result of it. And if it was so discovered, then such discovery (and I may here add of the other bomb subsequently found in the house of the Dutt's) pro tanto went to prove the truth of the reports and (of Santosh's confession) which cannot be wholly false, unless possibly we adopt (as we are not entitled to do) a third case which is not that of either party, viz., that it was not Santosh who put it there as the Defendants suggest, or the Defendants who put it there, as the Plaintiff suggests, but some third unknown party. A case, however, cannot be decided on an hypothesis which is not that of the parties but inconsistent with it. In other words the learned Judge's findings that the bomb was not placed in the house by the Defendants and the finding that the reports in consequence of which it was found were wholly false cannot stand together. Nor again can the first finding stand with the third that the Police did not believe in the reports or, in other words, knew them to be false. For they could not know that to be false which, for the reasons I have stated, was not false but shown to be true by the discovery of the bomb. And it is not, and could not be alleged, that the Police knew that some third, party had introduced the bomb. The Plaintiff's case is that they put the bomb there themselves and on that case the suit must be decided. Mr. Dutt again has a grievance on the same ground of inconsistency, looking at the matter from another point of view. He points out, firstly, that the learned Judge finds that the reports, including that of the 7th July on which the search proceeded, are wholly false, and that there is no truth in the evidence of the Defendants' witnesses who speak to them. What then is the result? Santosh did not put the bomb in the house; the story of the existence of the bomb, of the meeting at which it was shown, of the way it was obtained, of the manner in which it came into Santosh's confession are a pure myth. But Mr. Dutt further points out that not only does the learned Judge find that to be so, but he finds that the Police who made the search knew the reports to be false and knew that the story about Santosh and the bomb and so forth was a myth. If that be so there could not have been a bonâ fide search in consequence of reports which were false and known to be so. And Mr. Dutt contends that the conclusion should have been that there had been a malicious trespass and search against these men who are found in effect to have invaded his house under colour of supposed information, which, if they did not actually invent, was wholly, false and known by them to be false? But the answer in my opinion to Mr. Dutt's argument is this. We are not losing ourselves in words but we are dealing with facts. And the palpable fact is that in the early hours of the 8th July, 1908, an article described to be like a hockey ball weighing 5 chittaks and subsequently analysed to contain explosive powder and shot was found in the Plaintiff's house. That is an admitted fact and not a myth. Had of course the Court found that the Defendants put it there, then the allegation that Santosh did so would have been found to be such a myth and the Plaintiff would have succeeded along the whole line of his case without further discussion. But the Court has not so found but has negatived that case. A bomb was therefore truly discovered; such discovery was a fact which showed that the reports were not wholly false and the Defendants could not know that to be false which such discovery showed to be true. In other words the findings are not consistent. There are others to which the same criticism applies, but I need not deal further with the matter here beyond observing that whatever be the decision which should be arrived at in this suit, it cannot in my opinion rest on the grounds on which the learned Judge has put it.

The third objection is taken by the Appellants only and is also sound. They contend that the learned Judge should, after he had negatived the main issue, have dismissed the suit, but that on the contrary he has decided it against them on a ground not raised in the pleadings which must be taken to formulate the only case they are called upon to meet. This criticism that the learned Judge's decision is not in conformity with the case of the party applies to a number of other matters besides the main issue with which I now deal, such as the general distinction he makes between Mr. Weston and the Police, his finding as regards the recording of Santosh'h confession, and as regards the alleged attempt to suppress his petition of retractation on the 31st August. On this main issue to which I return I have, already pointed out what the case of the plaint was, how all was made to turn on its allegation as to the introduction of the bomb by the Defendants, how the alleged belief of the Defendants in the Plaintiff's innocence depended on it, as did the motive of the alleged malicious arrest, viz., the extortion of a false confession; and I therefore do not desire to repeat myself here. I will only now point out how the Appellants' criticism is justified.

Now it is a well-known rule of law that an act; which is not in itself actionable does not become so because the motive is malicious or bad. A man may prosecute another for reasons of personal spite, but if he, in fact, had reasonable and probable cause for so doing, there is as regards the prosecution no ground to proceed against him. Similarly, though I do not say it was the case here, if for the sake of argument we assume that Mr. Weston did arrest the Plaintiff in order to induce his son Santosh to make a confession, that would have no legal consequence provided that Mr. Weston in arresting the Plaintiff had a bonâ fide belief in his right to do so and was in fact justified in law in doing so. Therefore it is not the motive in itself which is of importance but the belief with which the act was done. If on the other hand, as the learned Judge finds, the Defendants when arresting the Plaintiff had in law no authority to do so and did not believe in the existence of such authority, or that the Plaintiff was accuntable in respect of the bomb found in his house either as owner or otherwise, then of course the arrest of the Plaintiff merely to procure a confession, whether true or false, from his son would be a fraud on the statute under which it purported to take place, for it was an act not done in furtherance of the ends of that statute but for another and indirect purpose.

The point then is, were the Defendants acting in the honest belief that they were entitled to arrest the Plaintiff, for I will deal in its own place with the question whether the statute in fact authorised the arrest. Now the original case made by the plaint was, that the Defendants had no such honest belief. And why had they no such belief? Because they directly knew the Plaintiff to be innocent. And how again did they know this 1 Because they had themselves placed the bomb in the house in respect of which they were charging him. And what was their motive? To extort a false confession from his son Santosh, a confession which they knew to be false for the same reason that they knew the Plaintiff to be innocent. The learned Judge has found all these allegations which were those the Plaintiff made in his plaint to be not proved. He has, however, in effect said this: “It is true that you have not proved the ground of your suit, or the allegations which are based thereon in the way alleged in the plaint, but I hold it has been proved in another way.”

I state the finding as it has been presented to us in argument. Now the plaint not only alleged that in arresting the Plaintiff the Defendants did not believe in his guilt but it also told us why they did not. And that is because the Defendants had put the bomb in the house themselves. But when this fact is negatived, the alleged ground of the Defendants' disbelief has gone. The judgment substitutes no other ground for it, and does not explain how it was that the District Magistrate believed that the Plaintiff was innocent. The discovery of the bomb was a fact which primâ facie justified the Magistrate's belief in the Plaintiff's guilt as also the Plaintiff's arrest. But what the learned Judge does say in effect is this: “Notwithstanding such primâ facie right to arrest, and that the alleged ground for the Defendants' disbelief has gone, I find as a fact that the Defendants did not believe in this right to arrest”. Then the learned Judge makes a distinction between Mr. Weston and the Police which is the case of neither party. Mr. Dutt claims, and if his case were founded in fact rightly so, that all the Defendants in respect of the main issue stand on the same footing. The Appellants say the same and that Mr. Weston does not shirk any liability by casting it on subordinates who worked under his Orders. But the learned Judge does draw such a distinction. And the reason why he says Mr. Weston did not believe in his right to arrest the Plaintiff are these. In the first place it is said that the informer's reports did not inculpate, him. That is admitted and the fact only shows this and nothing more that the Defendants cannot (as they do not claim to do) directly rely on the reports as their ground for arresting the Plaintiff. But the learned Judge goes further. He says in effect that the reports exculpated the Plaintiff. This is however not so. The reports deal with the state of things before the bomb got in the Plaintiff's house—a state with which the Plaintiff was admittedly not concerned. They do not and could not speak as to the state of things after the bomb was in the house whether the Plaintiff knew of its existence there or connived at its keeping and so forth. Secondly, it is alleged that Mr. Weston knew of the search before it took place, and if it was his case and belief that the Plaintiff was as the owner of the house liable to arrest, then it is said he would have arrested him then and there. But as the Plaintiff was admittedly not then arrested, Mr. Weston had, it is concluded, no such belief. Mr. Weston's answer is that he did not know of the search before it was made, and that had he known of it he would have arrested the Plaintiff on the 8th July; that when he found that the Police had not done so, he blamed them; that on their asking whether they should go back and arrest the Plaintiff, he said that as they had not arrested the Plaintiff at first they had better wait until it had been ascertained whether the article found (which was alleged to be a play-ball by Santosh Das) was really a bomb, and, if so, whether it was of a dangerous character and that he in fact waited till the receipt of the Chemical Examiner's report which showed that it was a dangerous bomb, and then arrested the Plaintiff on the first day of hearing of the case following the receipt of such report. The learned Judge has, however, found that Mr. Weston's explanation is untrue, and that in support of one particular the Maulvi has committed a forgery. Thirdly, though, as I have said, the finding of the bomb was primâ facie ground for the arrest, and though the learned Judge finds that Mr. Weston believed in the existence of a bomb conspiracy, in Santosh's guilt and the truth of his confession, he did not, he finds, on the other hand believe in the complicity of his father, for he is found to have expressly told the latter on many occasions that he was well aware of his innocence, that he need not be nervous, and to have expressly told him that the reason why he would arrest him was the, eventuality of his not getting a confession from his son, which the Plaintiff alleges Mr. Weston, who made this alleged threat, knew to be false. This story that Mr. Weston admitted to the Plaintiff his guilty intentions as regards him sees the light of day for the first time in the evidence in this suit. If it were true it would have been put forward before and made the basis of his pleading in which case all the other allegations of fraud were wholly supererogatory. If you can believe the proof offered there is no better evidence of a man's state of mind than what he himself states it to be; and it was not necessary if Mr. Weston in fact made such an admission to allege that he put a bomb in the house or did any other of the criminal acts alleged. As I am now only outlining the facts, I do not here give the reasons for my finding that this story also has been proved to be false.

It will be observed from what I have said that the effect of the judgment is to substitute for the case of direct knowledge by the Defendants of the Plaintiff's innocence due to their direct knowledge of the truth of the facts owing to their having placed the bomb in the house themselves, a case of knowledge based on grounds of inference from alleged acts, circumstances and conversations, including direct admissions. What Mr. Dutt relied on in his opening was not such an admission, but the alleged fact that Bonomali had put the bomb in the house. Mr. Dutt must probably have had in the proofs of the Plaintiff, his first witness, some such statement of the conversations lie is said to have had with Mr. Weston, as he (the Plaintiff) has deposed to in Court. It is a noteworthy fact, however, that in the opening (I quote from the transcript he has given us) he does not beyond a vague allusion to “threats” mention these admissions. It is possible he did so, and has not been reported. But if so, this can only have been because the reference was of a cursory character. Mr. Dutt, to whom these conversations are alleged to have been reported, possibly was able to estimate this evidence at its true value and therefore rested his case in conformity with the pleading on the story of the introduction of the bomb in the house. If this were not so, one would have expected him to put these alleged admissions prominently forward. His argument would have been “there is no doubt about Mr. Weston's belief in the innocence of my client for he repeatedly told him so. There is no doubt what his motive was in effecting my client's arrest, for he expressly told him that the cause of the arrest which followed his threat was his failure to get his son to confess”. If this story were true, one would expect it to be put in the forefront of the case, especially if Mr. Dutt had, as the Plaintiff alleges, been told about all these conversations immediately after they are said to have occurred. That Mr. Dutt did not so put it shows two things: that he considered his real case to rest on the story which his witness Bonomali was going to tell about the introduction of the bomb, and he estimated, as I have said, the story about the alleged admissions of Mr. Weston at their true value by saying nothing about them. It was only after Bonomali's story failed that an attempt which has proved successful was made to rest the case on them.

To pass to the case of the Police. The learned Judge has found as I have stated that the Police did not believe the reports and therefore presumably did not believe the conspiracy. Presumably also on this finding they should not have believed in Santosh's guilt or the truth of his confession. I cannot say, however, that the learned Judge has found this, for he has found that they arrested the Plaintiff not to extort a false confession from him, but to put pressure on him to make a confession. The grounds for their alleged disbelief in the reports as alleged in the plaint have been negatived, but it is found as a fact that they did not believe in them because they tutored witnesses, and so forth. As I have already pointed out, it cannot, on the learned Judge's previous finding as to the bomb, be held that they disbelieved reports which spoke of a bomb and were verified by its discovery. So the only remaining ground for their liability is their alleged conspiracy with Mr. Weston, for whose acts done in pursuance of the common object of it they are charged to be liable. But the uncontradicted evidence, and the learned Judge has not said that he disbelieves it, is that the Maulvi acted only under the orders of Mr. Weston, who alone was responsible for the arrest both as initiating and directing it; and Lal Mohun Guha was a subordinate acting under both. And it is conceded that if that be so, though Mr. Weston's orders, if not authorised by law, would not exempt them from liability for the arrest, there would on such state of facts be no evidence of any conspiracy in this regard. Finally as regards the motive of the arrest, the learned Judge substitutes in lieu of the case in the plaint that it was to extort a false confession, the case that it was done to put pressure on the Plaintiff to obtain a confession from his son which was believed to be true.

It is clear that the case thus found which is made to stand independent of the causal fraud alleged in the plaint has no resemblance to the case there made, and if it were necessary to do so, I would have, after affirming the finding that fraud had not been proved, held that the suit should be dismissed on these grounds. It is, however, not necessary to rest my judgment on such grounds as an examination of the evidence, irrelevant as it was, has led me clearly to the same conclusion.

Though Mr. Dutt has himself taken exception to the findings of the learned Judge, he has urged nevertheless that we should at any rate consider ourselves bound by his appreciation of the witnesses he saw, an advantage which we as an Appellate Court have not had. I have during the course of this judgment given fully my reasons for appreciating the evidence differently from the manner in which the learned Judge has done. In answer, however, to learned Counsel's submission it is incumbent on me to make some further observations of a more general character on this matter. In the first place what I have said of the issues and the mode in which they have been determined touches this question of appreciation of evidence. We cannot be affected by the learned Judge's appreciation of evidence on matters on which he does not decide. Nextly, the weight of such appreciation where there is a decision is diminished by the following facts. In some cases witnesses have been discredited on matters of which there is no evidence; in others the learned Judge has relied on matters which are inadmissible. Next he has discredited evidence given on behalf of the Defendants owing to an erroneous reading, or misre-collection, of what that and other evidence was. I deal with these matters in their places in the judgment, but in illustration only of my remarks I may here point to the discrediting of Rahman's story as to the circulation of the “Message to the Punjabis” on the ground that the document produced is a proof of which there is no evidence and which is not the fact. There is in respect of the witness Kartic Singh the reliance on the deposition in the Sessions Court of Kishoripati Roy, who has not, however, given any evidence in this case. There is the reliance which the learned Judge places on Upendra Nath Maity, whom he regards as one of the principal and most reliable of the Plaintiff's witnesses, and to which conclusion he is influenced by the opinions of the learned Judges in the criminal case which he cites but which are not evidence. On the other hand, Lal Mohun is suspected because of the learned Judge's findings on the Narainghur case. On the other hand, also, we have the discrediting of the evidence as to the search at the Dutt's house on a supposed admission of Mr. Gregory in the criminal case which is denied, and is in any case no evidence. On the same matter the learned Judge is under the erroneous impression that Mr. Cornish said that he suspected such search which he did not. I have referred to the case of Asadullah and Mr. Wilson. The latter is also discredited because the learned Judge thinks that the story he tells about the guarding of the Plaintiff's house was a new story, whereas in fact the record shows that it was put forward at the first opportunity. Mr. Weston's statement on the important questions whether he knew of the search before it was made is discredited on an erroneous reading of the Maulvi's evidence, on an omission to recollect what the learned Judge had ruled about Mr. Weston's pleading, and on the mistaken supposition that Mr. Cornish made a particular statement when he in fact said the contrary. Other similar errors I deal with in their places. As regards these matters I may observe that it may doubtless not have been easy in the case of this enormously lengthy record to be always accurate as to what had been said or done, the more particularly that the learned Judge was not favoured as we have been with printed books, proper indices and the abstracts which have been supplied us. But that circumstance, while it may help to explain these and other mistakes, does not dispense, much less prevent us, from examining for ourselves evidence, the appreciation of which has been affected by them, particularly having regard to the gravity of the charges in support, or defence, of which it has been given. Further, the learned Judge has criticised the evidence for the Defendants. But beyond the statement that some of the Plaintiff's witnesses are not loyal and law-abiding, the learned Judge has omitted to deal with the question whether their evidence was open to criticism by reason of their having said that which was unture. In so dealing with the case the learned Judge has overlooked the fact that the general onus was on the Plaintiff. Though the learned Judge holds that Bonomali's story is not established, he omits to observe that his evidence is (as it undoubtedly has been proved to be) false. As I shall have occasion to point out in this judgment there is no doubt whatever on the depositions of the Plaintiff and some of the most important of his witnesses, it clearly appears that they have given false, and in some cases admittedly false, testimony. To arrive at this conclusion it is not necessary to have seen these witnesses. It is patent on the depositions themselves. As regards the appreciation of the Defendants' witnesses it is not only affected by the mistakes to which I have referred and others, but in some cases adverse criticism is passed upon them for which in my opinion no sufficient grounds are given. As regards the Maulvi's evidence, I will deal in detail later. Further, in the appreciation of testimony, it is necessary to observe whether it has been met by other available evidence. But though the learned Judge has adverted to the non-calling of evidence by the Defendants, he has omitted to observe that the Plaintiff's evidence is gravely open to attack on that very ground. In fact the only reference which he makes to this matter is that relating to the objection that inferences adverse to the Plaintiff should be drawn from the absence from the witness-box of Mr. K.B Dutt, who is said to have knowledge, either personal or reported, on every one of the main incidents in the case, and against whom, in connection with it, personal charges have been made. I deal at the conclusion of this judgment with the question whether Mr. Dutt was as Counsel precluded from giving evidence, and whether even were that so, the fact of the Plaintiff having briefed him deprives the Defendants of the comment that he should not have been briefed but should have been called. It is sufficient for me to say here that the fact that he was not called is in my opinion one of the invalidating arguments against the truth of the Plaintiff's case.

Before proceeding to deal with the facts, I wish here to clear the ground of other matter dealt with in the judgment though, according to its terms, they are not material. The learned Judge has discussed in detail various provisions of the Criminal Procedure Code, secs. 172, 364, 344, 167 (read with the Bengal Police Code), 352, 154, dealing with case diaries, recording of confessions, remands, provisions as to open Court, and first information; matters which no doubt would not have been out of place were we dealing, as we are not, with an appeal from a conviction of the accused in the criminal case. It is true that on the case which Mr. Dutt asks us to accept some of these matters might not be without relevancy. For that case is that every act which Mr. Weston and Mr. Nelson, the Joint-Magistrate, who is alleged to be his “tool,” did from the beginning to the end of these proceedings was fraudulent. As Mr. Dutt puts it, these matters discussed are not merely irregularities. They were deliberate and perverse breaches of the law committed for the purposes of the conspiracy alleged. But that is not what the learned Judge finds. He discusses them merely as irregularities, and no ground has been shown us why they were more than that. I must not be understood to assent to all the legal propositions which the learned Judge lays down, and in particular I do not assent to the observations made relative to the first information and the argument which underlies it that it should have been laid by the Police spy. Let it, however, be assumed for argument that the Defendants, Mr. Nelson, Mr. Plowden and others, may have been in error in construing these provisions or may not rightly have followed them. That is not material. The question in this case is not whether Mr. Weston or the Police acted in all matters with all wisdom and discretion, or whether they acted too rigorously or mistakenly or with legal irregularity. That is not the issue, nor could it be. The question is whether in whatever they may have done they acted in honesty and good faith or fraudulently, and whether the Defendants maliciously as alleged abused the powers with which the law vested them to commit the dishonest and grossly criminal acts with which the Plaintiff and his witnesses have charged them. The issue in short is one of fraud and nothing else. In some matters such as the interpretation of the provisions of the Code relating to the first information the observations made would appear to have no bearing even on the assumption of a case such as Mr. Dutt seeks to make. It is true that before Mr. Justice Fletcher it was charged that the first information which had been drawn up by Messrs Morshead, Denham, Plowden and several others, including Mr. Withall, the attarney, was, to use learned Counsel's words, “a clumsy forgery;” but in this Court learned Counsel appeared to be rather embarrassed by the absurdity of the suggestion, and whilst Mr. Dutt explained that his words, which on their face covered the whole typed document, were really directed to some obvious additions by pen and ink of some further names by the Maulvi, Mr. Bose, his junior, told us that the suggestion though made in the Original Court (apparently in that light and haphazard way in which the gravest charges have been launched in this case), was afterwards there withdrawn. After this incident we heard nothing further as to a charge which is without a pretence of substance. I wish to add one word to the criticism which the learned Judge has passed on the Police for their not having, for a part of the period, kept case diaries. These not doubt should have been commenced to be kept earlier and before the 3rd August. The circumstances, however, were peculiar. There were a large number of cases which were later apparently amalgamated. Besides the case of the 7th July, No. 3750, there was the case against Surendro Mukerjee, No. 4224 of the 30th July, the Dutt's case, No. 3751 of the same date, and on the 26th August there was case No. 4225 against some other 20 accused. Owing to the complexity of the case and number of charges involved the first information was not filed till September. Mr. Dutt, however, sees in this omission a deliberate attempt to forward the alleged conspiracy. It is difficult to understand how this could be. For if we assume, as we are asked to do, that a false case has been made as to events during the period from the 8th July to the 3rd August, when the diaries were started, are we also to assume that the sense of truth of persons dishonest and fraudulent as the Police Defendants are alleged to be was so great that they would have stated in these diaries such a real statement of fact as would have discovered their alleged fraud. The learned Judge has not found that the omission to keep the case diaries spelt this case of fraud. But there is another and conclusive answer in a circumstance to which the learned Judge omitted to refer; and that is that Mr. Cornish, the Superintendent of Police, takes upon himself all blame in the matter and responsibility for this omission, and Mr. Cornish is one of the extremely few persons amongst the defence witnesses whose desire to tell the truth is not impugned. If, therefore, there were any such fraudulent object as Mr. Dutt alleges, Mr. Cornish must have been in the alleged conspiracy which, however, is a case he does not make.

As regards the provisions of the Jail Code, the learned Judge, notwithstanding that he held that the alleged breach of them was irrelevant, has observed that the treatment of many of the prisoners was not according to its provisions. The matter was of doubtful relevancy or value even as regards the Plaintiff and his son, and we are not concerned in this suit with what may, or may not, have been done as regards third parties. Even as regards the Plaintiff and his son and Surendro Mukerjee it has been found that the evidence does not connect any of the Defendants with such alleged ill-treatment, if it existed, which is denied. It seems to have been erroneously supposed that Mr. Weston was responsible for the jail, and it was found necessary to prove that the Inspector-General of Jails is in control of them. Some of the charges in respect of this matter have been of a trivial character, such as the Plaintiff's alleged difficulty in getting a light for the cigars which the jail supplied him; others are in respect of annoyances commonly suffered in this country such as the presence of ants and mosquitoes; others refer to the discomforts incidental to jail life; and there are some which have the appearance of greater substance but which are denied. The complaints, as a reference to the Medini Bandhab newspaper to which Santosh Das contributed his “Prison story” shows, are very indefinite and resolve themselves mainly into a charge that each under-trial was kept in a cell by himself. It is in evidence, however, that the general undertrial ward, where ordinary under-trial prisoners were confined, was extremely overcrowded, the number of under-trials being always 70 and often more, while the capacity of the ward was 35 or 45. It would have been impossible therefore to meet the wishes of the persons accused to be confined in the general ward with the ordinary class of low and common criminals, had such a desire been ever expressed. Mr. Dutt suggests as a grievance that his client was deprived of such criminal company. I have but little doubt myself that had his client instead of being given a separate cell been herded with criminals of a low and common type this in itself would have been made the subject of grievance. No complaints were made at the time either to the Superintendent of the Jail or to the Commissioner, Mr. Maddox, when he visited the jail, and the charges, which in my opinion are unsubstantial, have been introduced to give a colour of hardship and prejudice to the proceedings taken against the Plaintiff. In my opinion the Plaintiff's real hardship, if he had one, was not that he was given a separate cell, but that he was kept in prison at all. Though something may be said from the point of view of the condition of affairs at the time, I think an old man such as he was and a resident of Midnapore, who was not likely to, and could not have, rim away, might well have been released on bail. This is not, however, a matter which touches the issue. As regards the actual conduct of the jail by Captain Weinman (whose experience of central jail management began only a week before Santosh's arrest), the opinion of the Inspector-General of Jails, based as it is on years of practical experience and on actual knowledge of what courses were open to the Superintendent as regards the disposal of the prisoners, must necessarily be far more valuable than any which the Court is in a position to frame. And his opinion was a very favourable one as to the manner in which the Superintendent, Captain Weinman, conducted what the Inspector-General considered to be his difficult duty at the time. It was also alleged that Captain Weinman kicked Ashutosh Das when in jail, and evidence was gone into a matter which, as the learned Judge observes, was even, if true, “a long way off from Mr. Weston” as is indeed other evidence in this case. Ashutosh Das is not, as I shall have later to show, a reliable or truthful witness, and Captain Weinman denies this incident, explaining that what he in fact did was to push the witness along when he found him to be apparently deliberately loitering behind the file. With the alleged ill-treatment of the witness Surendro Mukerjee I deal later.

Before passing to the evidence I will deal with the question of the standard of proof required of the Plaintiff in a case such as this to which both the judgment and the argument have referred. The learned Judge has cited in support of his views in this matter a case [In the goods of Gopessur Dutt: Jurat Kumari v. Bissesour] which was heard by the Chief Justice and myself. I wish to point out that the observations to which Mr. Justice Fletcher refers are to be found in the judgment of the Chief Justice, and that the separate judgment which I then delivered contains the grounds on which I disposed of that appeal.

In my opinion there is but one rule of evidence which in India applies to both civil and criminal trials, and that is contained in the definition of the terms “Proved” and “Disproved” in sec. 3 of the Evidence Act. This Act, to use the language of the Chief Justice in the case cited, “in conformity with the general tendency of the day, adopted the requirements of the prudent man as an appropriate concrete standard by which to measure proof”. The test in each case is, would a prudent man after considering the matters before it (which vary with each case) deem the fact in issue to be proved or disproved? In a matter of this kind the conscience of the Court can never be bound by any rule, but that which coming from itself dictates a conscientious and prudent exercise of its judgment. And speaking for myself where, whatever be the form of the proceeding, charges of a fraudulent or criminal character are made against a party thereto, it is right to insist that such charges be proved clearly and beyond reasonable doubt though the nature and extent of such proof must necessarily vary according to the circumstances of each case. There is a presumption against crime and misconduct, and the more heinous and improbable a crime is the greater of necessity is the force of the evidence required to overcome such presumption. I cannot myself imagine a Court saying to a party, who as in this case may be a person holding high and responsible position with a previous unblemished record. “It is true that I have reasonable doubts whether you did the grossly criminal acts with which you are charged, but I find that you did so all the same”. And this exclusion of reasonable doubt is all that the so-called “criminal proof” requires. What I understand the Chief Justice to have held, and with this part of his judgment I agree, is that the English rule in these matters (whatever it be, for authorities are not at one) does not as such apply to India. He proceeded, however, to Bay that presumption against misconduct is not (as I have also said) without its due weight, though (he adds) the standard of proof to the exclusion of all reasonable doubt required in a criminal case may not be applicable. That is not that it is not applicable, but it possibly may not be. For this two English cases are cited. Apart from the fact that the English authorities are not uniform on the subject, in my opinion the reasons which exclude the application of the English rule (whatever it may be) in this country also exclude as authorities the cases which are said to embody and interpret it. Whatever however be the standard of proof applicable, and assuming it to be as the learned Judge puts it the Plaintiff has in my opinion, for the reasons which I give in my review of the facts to which I now proceed, failed to satisfy it.

I will, in dealing with these facts, first take up the subject of the political condition of Midnapore before, and at the time of the events the subject of this suit, giving also a short history of those events up to the institution of this suit (pages 72-104). A short account of the Plaintiff's case as to the Defendants' alleged conspiracy follows (pages 105-113). I will then deal with the reports of the informers who were appointed by the authorities in their endeavour to cope with the seditious state of the district at the time. This subject will include the questions whether there were real informers, whether their reports were true or false, or partly both and the question which the learned Judge discusses, namely, whether the Defendants believed in them (pages 114-192). This will bring us to the action as regards the Plaintiff and his son Santosh taken on those reports; the first of such proceedings being the search of the Plaintiff's house on the 8th July when a bomb was admittedly discovered (pages 193-210). Now, as I have said, the Plaintiff alleges that the Defendants conspired to put it there. Before, however, he gets to the proof of that fact he has to deal with another, viz., that his son Santosh confessed that he had put the bomb there himself. If he did so, of course the Defendants did not. I will therefore deal with the question whether Santosh Das' confession was true or not—a very lengthy matter as it embraces all the events which took place between the 8th July, when he was arrested, and the 7th September, when retracted that confession (pages 211-403). Now if the Plaintiff cannot explain away the fact of this confession, he cannot gain credit for his witness Santosh Das when he says he had nothing to do with the bomb. But assuming for the sake of argument that he does succeed on this issue, he has got to go a step further. For while it is true that if Santosh put the bomb in that house the Police did not, it is obvious that the converse does not follow that if Santosh did not put the bomb in the house the Defendants did. The Plaintiff therefore has to, and does in fact, lead evidence to show that the Defendants conspired to have the bomb placed in the house and did in fact put it there on the 7th July, the day before the search, through the agency of the boy Bonomali. This introduces us to his story and the defence case with reference thereto (pages 404-437). As I have already said, if this issue is not established, as the learned Judge has, found it is not, the case on the pleadings ought to end there. But as I have also pointed out the learned Judge has an my opinion allowed the case to go beyond, the pleadings, and the Plaintiff on such permission contends that even if he has failed on that issue, he is entitled to show on other grounds than those alleged in the plaint and which I have already mentioned that he was maliciously arrested on the 23rd July. In the order of events, this matters has also been noted under that part of the judgment which deals with the events leading up to the confession; but as it constitutes an issue and one of the most important in the case, it is dealt with after the story of the introduction of the bomb (pages 438-511). It must also logically take that place because we must know before we deal with the question of the alleged illegal arrest whether the Defendants are responsible for the presence of the bomb there. If they were, then there was such an illegal arrest and there is nothing further to be said. If there was not, then though I do not consider that it was open to the Plaintiff to make the alternative case he did, I shall proceed to examine the facts in detail to Bee whether it is in any event established.

I will then deal with the various miscellaneous charges which have been made against the Defendants, and in particular the allegations against the Police of tutoring of witnesses, subornation of evidence, bribery and so forth (pages 512-570). These are conveniently dealt with separately as they otherwise disturb the orderly statement of the case with which they are but indirectly connected, the story for instance on which so much evidence and argument has been expended as to whether on the 11th August the witness Surendro Mukerjee received a kick or rather three kicks from the Defendant Lal Mohun.

Following this I deal with the question which I have already reserved whether Mr. K.B Dutt, the learned Counsel for the Plaintiff in this case, should have been called as a witness, whether his position as Counsel prevented him, as the learned Judge has held, from giving evidence, and whether, assuming that to be so, the Defendants are deprived by that circumstance of the comment that Mr. Dutt should not have accepted a retainer but should have been called as a witness, and that the fact that he has not been called raises the usual presumption that his evidence would not have supported the Plaintiff. I have already, in order to explain the views I express throughout the judgment, given my opinion that the Defendants are entitled to make such adverse comment, and in this portion of my judgment I will give my reasons (pages 571-590). I will then sum up the case on the facts and give my decision on the issues of fact (pages 591-617), and finally proceed to discuss the questions of law raised, the most important of which is whether this suit is not barred by limitation, and should, on the cause of action on which it has been decreed, have been dismissed (pages 618-623).

[In summing up the case on facts towards the end of his judgment, his Lordship observed as follows:]

There is no doubt, and it has been so found by the learned Judge that in and prior to 1908 Midnapore was in a very seditious state. There was also, as he finds, a conspiracy in which I think Satyendro, Hemchandra, Khudiram, Jogjiban and others, chiefly younger men of the Extremist party, were engaged. Rahman's reports and deposition and other evidence in the case establish this. The conspiracy was fomented by older heads whose writings and outside support induced and upheld it. Amongst many of the educated and wealthier class there was a sympathy with extreme doctrine, and possibly in some cases an outside and covert encouragement by support of those who were prepared to carry it into action. The latter were chiefly younger or irresponsible men of the type of Satyendro, who is alleged to have been for some time the Secretary of the Zamindars' Samiti, of which the Raja of Narajole, Jamini Mullick, Abinash Mitter, Upendra Maity and others were members. With Satyendro and Khudiram, Nirmal, Sarat and other younger men, the Plaintiff's sons, Santosh and Ashutosh, associated. There can be no question that, whatever the two latter actually did, their sympathies were with the extreme party. Their father had in fact to warn them in this matter as he thought that by such association their own future was imperilled. Rahman's reports largely dealt with men of this class. Then Laha became the informer. Socially and intllectually he appears to have been the superior of Rahman and to have mixed in a society which the latter, who was merely an instructor of lathi and sword play, could not. What Rahman chiefly learnt was from his pupils. Laha had access to the older and more influential men with some of whom apparently he used to drink. Laha is alleged to have been in straitened circumstances, a never do-weel and drunkard, and the events which attended his resiling from the information which he had previously given show that he was a worthless character. There is no doubt whatever that some of these persons of whom his reports speak, such as Deb Das Karan and Jamini Mullick, the Raja of Narajole and others, were not loyal or law-abiding. There were also some who may not have gone as far as they did or even disagreed with their views, but who yet associated with them. Laha reported the doings of the younger men Santosh, Ashutosh, Jogjiban, Surendro, Satyendro and others who were carrying on, and possibly sometimes playing with, the same sedition which Rahman had noted against them. But in addition to this he brought into his reports persons from three other classes, namely,—men who, like the Raja of Narajole, Jamini Mullick and Deb Das Karan, were without a doubt fomenters of the agitation which produced the overt sedition; and others like Peary Lal Ghose, a relative of Satyendro who was (as amongst other things his letter to the Medini Bandhab shows and as the learned Judge holds) deeply implicated in the swadeshi boycott and kindred movements; an implication which in his case I have no doubt was coloured by the disloyal views he held even though he may not perhaps openly have gone the same length that the others I have mentioned did, and, lastly, there were others like Mr. Dutt and Upendra Maity who, though belonging to the Moderate party, possibly associated with some at least of the men who were its opponents. Laha, from the doings of the younger men, the conversations he had with the older men of the first class and bazar gossip, his own inventions possibly due to drink, malice or the simple desire to earn informer's pay, made up a series of reports which, I think, probably contain false matter, but which were not on the evidence wholly false. On the evidence I hold that whilst the Plaintiff has not established that the reports are wholly false and the Defendants have not shown as against any other than Santosh, Baroda Dutt and Surendro Mukerji that they are, or are likely to be true, the Defendants have shown that they were true or that, in any case, there is ground for supposing that they were not (?) true as regards both (?) Santosh Dass, Surendro Mukerji and Baroda Dutt and his family by reason (1) firstly, of the evidence which shows that Santosh was in association with persons who were undoubtedly seditious and members of a conspiracy found by the learned Judge to exist, (2) his confession which the Plaintiff has failed to show was false, and (3) of the evidence, which the Plaintiff has not displaced, that a bomb spoken of in Rakhal's reports as having been taken by Santosh to the Plaintiff's house was actually found there; the evidence that another bomb was found in the house of Baroda Dutt's and his family; and Surendro's confession which his unreliable evidence does not displace.

On these reports which were not incredible and which, whether true or not, the Defendants believed, a search of the Plaintiff's house took place, of which Mr. Weston was not aware until after it had been made A bomb was found. The Plaintiff's attempt to explain its presence by the allegation that the Defendants put it there as part of the alleged conspiracy has been found to be false. The bomb having been discovered in the Plaintiff's house, the Defendants were, on the reports that they received of Santosh's implication in the matter, entitled to search his father's house and arrest him as they did. Though they did not then arrest the Plaintiff as the owner of the house, they were, as Mr. Weston pointed out when the search was reported to him, entitled to do so and might have properly done so. As, however, the Police had not at first arrested the Plaintiff, Mr. Weston determined to wait before taking further steps until a chemical examination had shown whether the bomb, which was a country-made one, was of a dangerous character. After Santosh's arrest the Police doubtless put before him the information they had, questioned him and probably pressed him to make a disclosure. That in so doing they made use of the Plaintiff and his family as alleged and resorted to the various tricks, devices, persuasions and threats alleged, I am unable to hold. For the evidence by which this is sought to be established is (for the reasons I have fully given) itself of a most unreliable character. Santosh refused, however, to confess up to the date of his father's arrest. The latter was arrested on the 23rd July after and in consequence of the Chemical Examiner's report which revealed the dangerous character of the bomb, for the ascertainment of which the arrest of the Plaintiff had been deferred. It is not in my opinion true that he was then arrested either to extort a false or to obtain a true confession from his son. The arrest of the Plaintiff was the sole act of Mr. Weston in which the Police, except as subordinates carrying out his orders, were not concerned. It was in my opinion ordered by Mr. Weston in the honest belief that he was entitled in law and fact to do so (as in my opinion he was), and not for the indirect motive alleged. The arrest, however, of his father probably did influence Santosh to confess and possibly with a view to exculpate his father and: obtain the latter's release he confessed his own guilt a week or so later. That his confession was false and induced by promises or tutored has not been proved, for, as I have said, I cannot accept Santosh's evidence or that brought to corroborate it. On the contrary the story told by Santosh of the manner in which his confession was recorded by Mr. Nelson and the charges which he makes against the latter and Mr. Weston are manifestly and on their face so mendacious, that Counsel for the Plaintiff has not been able to ask us to accept them. This confession of Santosh implicated not only himself but a large number of others including wealthy and influential persons, such as the Raja of Narajole and Jamini Mullick. Maity was also mentioned in connection with swadeshi. Surendro Nath Mukerjee, the companion of Santosh, was also implicated. After this confession and until the 15th August Santosh made no sign that he wished to retract, notwithstanding that according to his allegations the confession was made on a promise that his father should be released and the alleged promise was not kept. If there is a case in which retraction might be expected, it would be in such an one as this where the confessing party alleges that he had been trapped by false promises into confessing that which was not true. Meanwhile other events had been taking place. On the 31st July a bomb had been discovered in the house of the Dutt's, and several persons were arrested. Surendro Mukerjee who had been arrested also confessed on the 15th August. He also makes charges against the Deputy Magistrate, Babu S.N Chakravarti, which are so false that they have not been attempted to be supported before us here. His story as to Police tutoring, threats, kicks and so forth I have held, for the reasons given, to be not proved. The man who makes these charges has himself admittedly given false evidence. Surendro's confession also implicated a large number of people at Midnapore, including the persons I have named, Saroda and Baroda Dutt, Deb Das Karan and others. He also implicated Santosh, but says it was himself who actually carried the bomb to the latter's house. As I have said up to the 15th August, Santosh had made no sign that he wished to retract. His confessions had not been publicly known. It had not been put on the record. On the 15th August an application being made for bail on behalf of the persons arrested, both Santosh's confession and that of Surendro became for the first time publicly known. The matter then created a great stir. Up to this time Ashutosh Das, the other son of the Plaintiff, and who was probably as much, if not more, implicated than his brother, had, he says, been working with the Police under the Maulvi whom he regarded, he says, as his patron. On the 15th August, however, his help was secured by the pleader applying for bail through Nilkanto Bose, Ashutosh's brother-in-law. The latter took him off to the Midnapore Library, at which time he says “the spell of the Police was broken”. He told the pleaders there assempled what he professed to know and, according to the evidence for the Plaintiff, made allegations of misconduct against the Police. These revelations would necessarily perturb three classes of persons, viz., those who may be falsely implicated by the reports and the confessions which corroborated them; those who may not have said and done that which the informer's reports represent them as saying and doing, but who holding in fact seditious views, or having given effect to them, feared a disclosure of what they had said or done; and, lastly, those who may have been rightly implicated. It is not improbable that Jamini Mullick and others with whom Laha associated may have said and done things which they desired should not be known. All these persons would, however, be at one in the determination to take steps against a proceeding which threatened them with a common, if in some cases undeserved, ruin. Accordingly Mr. Bradley-Birt was immediately approached, and then on a requisition, which included the names of several persons implicated, a telegram was on the 16th August despatched to Government complaining of the action of the Police. Instead of sending details at once as the Government requested, time was taken up to the 27th August in preparing some statements by Ashutosh Das, his nephew Jotindra and the brother of Surendro Mukerjee who had confessed. The complete spontaneity of these statements is doubtful. Note-books were also started at the instance of Mr. Dutt for the making of memoranda of complaints against the Police. The next step was to see whether Santosh and Surendro would adhere to their confessions. We find then that Santosh who, until his confession with its implication of others had become known, had not tetracted, did so after that event. The circumstances attending such retractation are suspicious. A petition was prepared for Santosh and Surendro Mukerjee. They were produced in Court on the 31st August. Though the petition is by a man who is represented as craving for the opportunity to retract, though it asks for such an opportunity, and though such opportunity in fact then presented itself, it was not availed of. It is obvious that it must have been a matter of indifference to Santosh himself when or where he made his retractation. If his confession were untrue and he wished to withdraw it, he might do so at any moment without preparation by telling the simple truth. The telling of such truth does not require legal manoeuvres or aid. The matter would not, however, present itself in the same way to those others who were interested on their own behalf in obtaining such retractation. It was never intended by them that this opportunity should be availed of. But why not, under it be that it was contrived that the retractation when made should be suitable and effective for the purposes desired and not in conflict with the case already made in the documents previously sent to Government. Accordingly the retractation was delayed. I have no doubt that the persuasion of these others was an inducing cause of the retractation of the confessions of both Santosh Dass and Surendro Mukerjee subsequently made on the 7th September. The next step was to make the informer innocuous and the circumstances indicate to me beyond all doubt that this was achieved by getting him to have written and subsequently to produce for the defence Ex. G as the record of the information he had given to the Police. We know from the evidence that an attempt was also made to dissuade the other informer Rahman from giving his testimony. The evidence also fully establishes that persuasion, threat and boycott were employed to dissuade or punish any person who might or did give evidence for the Crown. If it be the fact as it possibly is that the prosecution might in any case have failed against some by reason of the falsity of the accusations against them, it is also none the less the case that if there were others who were truly implicated, the manoeuvres employed to prevent the production of evidence raise an inference which both supports the truth of such implication and that such means contributed to the failure to establish it against them. In the end proceedings had to be abandoned against all the accused except three; the two who had confessed, Santosh and Surendro, and Jogjibon, against whom there was the evidence also of Abdur Rahman, the other informer, who did not fail the prosecution. Then shortly before these proceedings the boy Bonomali was set up to tell a false story against the Maulvi about the introduction of the bomb. An attempt is made to persuade the constable Kartic who is supposed to have taken the boy to the Maulvi to tell such story for the benefit of ‘the country’ by the pleader Kishoripati Roy who has not been put into the box to deny this charge. Santosh probably dissatisfied with the result of a retractation which had then not personally benefited him, for the proceedings continued, asked Mr. Brett, whether he would better himself if he went back on it. This is proved of a man who is alleged to have been entirely innocent and to have been all along desirous to declare it. The three accused were at first convicted and then acquitted by this Court. The notoriety of a departmental enquiry and a press campaign preceded the institution of this suit with its serious initial charges which have been added to and shifted throughout the hearing.

It is of course natural to assume that there must be some basis for an action in which, as appears from the record, so much feeling has been displayed. It is well at the same time to remember that everywhere in all countries, but particularly in this, the smoke is always disproportionate to the fire. On this matter we can only look to the record. It may be, though I do not desire to express a positive opinion on the point, that Mr. Weston, as an executive officer perhaps, possessed in excess the qualities which are supposed to be requisite for such a service. He acted conscientiously, with great vigour and perhaps rigour in his general dealings with the disaffection in his district. These remarks are not made as a criticism, for it must be remembered that as the learned Judge points out, Mr. Weston's position was a peculiarly difficult one. As a result, however, of his uncompromising attitude Mr. Weston got himself very much disliked by those whose views and actions he opposed; and that, as also the disaffected state of many minds, produced many a threat against his life which, I believe, not to have been idle but prevented from execution by the measures for his safety which Mr. Weston rightly took. In the matter also of the particular conspiracy dealt with in these proceedings there has been in one case excessive rigour and in some others irregularity; I think in particular that the Plaintiff, an old man of about 70, was treated with unnecessary harshness in being kept in jail pending the investigation of the charge against him. He might, and I think should, have been let out on bail and thereby much ill-feeling spared. I think also that Mr. Weston acted with indiscretion in seeing or communicating with the Plaintiff at all during the pendency of the proceedings against the latter's son, even though, as I find, such interviews were brought about at the instance of the Plaintiff and not of himself. The circumstance was one likely to afford a handle to the charge actually made and may have in others' minds given rise to suspicion. Though I am fully satisfied with the explanation he has given, his action in arresting the Plaintiff when he did was also open to misconstruction. I refer to the Plaintiff's exemption from arrest when the bomb was found and his subsequent arrest about a fortnight later. It cannot necessarily be imputed to the Plaintiff that he knew what was the cause of this. Probably he did not, seeing that he doubtless believed himself innocent of the offence and was subsequently discharged in respect of it. He and others may have connected the arrest with an intention to secure that confession from his son which in fact followed his arrest and was, I think, probably induced by it. This is indeed the only matter against Mr. Weston which has, primâ facie and in the absence of explanation, a show of substance. I refer to the matter, the subject of Mr. Justice Fletcher's finding and not that the subject of the plaint. To it have been added in the interest, I believe, of others than the Plaintiff a number of wholly unfounded and false charges.

As regards the Police (I am now speaking generally and not of the Defendants) one must always admit and consider the possibility of misconduct, for experience unfortunately demands this; and looking at the case from the point of view of such mere possibility and independent of the evidence, it may be that the Police Defendants did more than they admit to procure the confession and acted otherwise irregularly or wrongly. At the same time the matter is one of proof. As I point out later there are certain acts which I hold that they did not do, and there are other acts which I hold that it has not been proven that they did do. The evidence satisfies me of the necessity of peculiar caution in this case in seeing that the charges are made out. This is not the common case of an individual alleged to be oppressed by the Police. It is one in which there is an organised and powerful combination against these two Defendants. Whilst it is possible that such combination was brought about by what they did, it is also possible that it was in the nature of a reprisal against them for having made and failed to prove charges which under more favourable circumstances they might have established; for I am fully satisfied that this combination has been itself doing some of the things it charges against the Police; getting at their informer and witnesses or attempting to do so in the case of the latter and putting up false charges such as that of Bonomali against the Maulvi, Mohesh Bout against Inspector Kedareswar, and other cases. It appears further that the charges against the. Defendants were again most mendaciously exaggerated in the ‘Prison story’ of the Plaintiff's son in Deb Das Karan's paper, the Medini Bandhab. This, I believe, was done to prejudice the Defendants' case before it was tried and indicates how readily admittedly false charges were preferred against the Police. The exaggeration which there describes the Police as fiends (rakshasas) showing their ‘fierce rows of teeth,’ lords of ghosts (bhuta) and so forth affects every incident, with which they are there charged and others which, if Santosh is to be believed, are the pure invention of the Editor. But these very falsities, if they are proved embarrassing by their absurdity to the Plaintiff and his family in giving their evidence in this case, were probably on account of this very exaggeration and appeal to prejudice, the more suitable for the purpose for which they were put forth.

It was under such circumstances that this suit with its many charges was filed, and we have next so see what has become of them on Mr. Justice Fletcher's judgment.

I take first the case against Mr. Weston.

The following are Mr. Justice Fletcher's conclusions, either directly expressed or to be implied, from his judgment. He has found that the story of the primary conspiracy to falsely implicate the people of Midnapore and other parts of India is untrue, as also is the alleged secondary conspiracy for the same purpose. He has said that he disbelieves altogether the suggestion of a corrupt motive which he finds were made against Mr. Weston. He holds on the contrary that his district was in a very seditious state and that there was in fact a conspiracy in it. He finds that on the information then in his possession he was bound to be very watchful over the district of which he had charge. He holds that fie did not concoct or have any hand in the concoction of false reports nor in the passing of reports known to be false. On the contrary he is of opinion that Mr. Weston honestly believed in the truth of the reports and that if he had not be would not have acted on them. He finds that he took steps to test the truth of the reports, and that if such, testing was, as the learned Judge thinks, insufficient, it was due to do dishonesty on his part, as the Plaintiff alleges, but to the want of opportunity of which the administration of an excessively heavy district deprived him, and to his inexperience. Whilst the learned Judge is of opinion that the alleged introduction of the bomb in the Plaintiff's house and in the house of the Dutt's is not proved, he also finds that Mr. Weston who believed the truth of the reports in no case had any hand or part in such alleged crime. He finds that there was no such malicious search or trespass as is alleged. He is of opinion that Mr. Weston believed that Santosh Dass was guilty and that he was entitled to arrest him as he did. As regards the proceedings which followed Santosh's arrest the learned Judge, touching Santosh's confession, says that he altogether disbelieves the suggestion that Mr. Weston and Mr. Nelson or either of them put to Santosh questions which they knew to be untrue, and he does not find, and therefore pronounces against the other allegations of misconduct which Santosh Dass makes against these two officers. He holds also that the allegation that Mr. Nelson and Mr. Weston attempted to suppress the petitions of retractation of the 31st August is not true and that the incident arose out of a misunderstanding. Lastly he finds that Mr. Weston did not, as alleged, arrest the Plaintiff with the knowledge (as alleged in the plaint) that he was innocent or because he had conspired to put the bomb in his house and that his motive in arresting the Plaintiff was not (as also alleged in the plaint) to extort a false confession from his son. Every one of these charges goes by the board on Mr. Justice Fletcher's judgment. All of them are not only in my opinion false, but very malicious and wicked charges for which there is no foundation, of which fact the Plaintiff or others who are responsible for them must have been well aware. The motive for such charges is obvious. There was, as I have pointed out, an ill-feeling against Mr. Weston which matured into actual threats against his life. The reasons for this I have given. But it is not only by such acts of violence that injury either to an individual or a class may be done. Not the least dangerous or malicious to either is that which clothes itself in the legal form of a false accusation. The suit on these findings should have been dismissed outright. What, however, the learned Judge has done is this:— He has, as I have pointed out, put aside as false the charges on which the suit is based and pronounced against Mr. Weston on another and different charge, viz., an illegal arrest of the Plaintiff without authority in fact, or belief in his right to do so, and as a means of obtaining a true disclosure from his son Santosh of a conspiracy which he, Mr. Weston, honestly believed to exist. As incidental to this finding his view must necessarily be that Mr. Weston has perjured himself. Had the plaint been framed on these grounds, it might have, as already pointed out, been instituted without such malice as I find in the case of the other charges, though such a suit would, for the reasons I have given, have equally failed. I have found, however, that an explanation on this matter has been given which entirely satisfies me as to Mr. Weston's bonâ fide. Apart from the fact of the conflict of testimony not a single instance has been proved which convicts this Defendant of an untruth. Indeed had one single instance of deliberate untruth been established against him (his position being what it is) I should not have accepted any portion of his testimony without good and reliable corroboration. On the other hand the Plaintiff has put forward numerous charges against Mr. Weston, all of which have been found both by the learned Judge and myself to be untrue. It has been to me a matter of surprise that the learned Judge has not, either in the case of Mr. Weston or the Police, considered this circumstance in judging of the relative value of their testimony and that put forward on behalf of the Plaintiff. It is in my opinion impossible to hold that a man who has himself and through the witnesses he has put forward made so many clearly false and malicious charges is entitled to the same credit as if he had never made them. On the contrary they discredit his case. In my opinion further the evidence of the Plaintiff himself with its prevarications and untruths cannot be accepted. In particular his account of the alleged conversations which he had with Mr. Weston, when the latter is charged with persuading and threatening him and then owing to his (Mr. Weston's) alleged guilty intentions towards him, has, for the reasons I have given, been conclusively proved to be untrue. Though therefore the charge on which Mr. Weston has been convicted ought not in my opinion to have been tried in this suit, it has also in my opinion been shown to be, as the others against this Defendant have been found by Mr. Justice Fletcher and myself to be, untrue.

I pass now to the case against the Police. The learned Judge has not found against them either the alleged primary, or secondary conspiracy or that they concocted their reports or that they put bombs in the house of the Plaintiff or of the Dutts. In my opinion all these charges have been shown to be untrue. He has found that they conspired with Mr. Weston to effect the illegal arrest above stated. In my opinion, Mr. Weston was alone responsible for that arrest and the Police Defendants acted only as his subordinates. Mr. Weston is not liable, nor are they. I further find that the unrebutted evidence supported by that of Mr. Cornish establishes that the third Defendant, Lal Mohun, acted merely as the subordinate of the Maulvi, who did not take him as such subordinate into his full confidence. It is not now alleged that Lal Mohun had directly anything to do with the alleged introduction of the bomb into the Plaintiff's house, and the evidence establishes that he did not at the time know who the informer actually was or what was the information on which the search was made: This disposes of the charges dealing with the main issues in the suit.

The learned Judge's other conclusions against these Defendants are upon a matter which only indirectly and sometimes remotely, if at all, affects the main issues which have been tried. He has found that the Police Defendants did not believe the reports of the informer; that is, they did not believe that there was a conspiracy as there alleged, and therefore did not believe in the guilt of Santosh or his father and misconducted themselves in a pretended investigation of a false case by procuring and attempting to procure false evidence, by tutoring confessing prisoners and witnesses and so forth. In short, it is charged that not believing in the truth of the case they were investigating but on the contrary knowing the charge to be false, they attempted to get false evidence to support it. I need not here again point out how the learned Judge's finding that they knew the case to be false is inconsistent with his other findings that they did not put the bomb in the houses of the Plaintiff and the Dutts as alleged. There are, however, further reasons why I cannot agree with the learned Judge's conclusions against these Defendants.

Whilst we must consider the possibility of misconduct to which I have referred, we must also be satisfied that such possibility is proved to be a fact by relevant and credibly evidence. The law does not presume against a policeman as such, but deals with him as it would with any other against whom charges of fraud and crime are made. He is entitled to the benefit of the same procedure and to have his conduct judged by the same tests and in the same manner and free from considerations which proceed from other thin relevant evidence in the suit as are others. If the considerations of the possibility to which I have referred be productive of suspicion this must yield in the face of the repeatedly unproven charges supported by false evidence, and the proven facts. Some of the learned Judge's suspicions have been removed during the conduct of the appeal. Thus, Laha's account of the alleged concoction of the reports by the Police, given as his excuse for resiling therefrom, is so false that learned Counsel for the Plaintiff will not adopt it. There is no evidence that the Police did concoct the reports, and the learned Judge finds that there is no such evidence. His judgment nevertheless expresses a suspicion. Before us, however, that suspicion has been removed by the practical withdrawal by learned Counsel of that charge for which in my opinion no grounds whatever exist. The learned Judge expresses his doubt whether the document produced as a copy of a statement which Ashutosh Dass made to the Police is in fact a genuine copy, and comments in this connection on the facts that other original documents are missing. Before us Mr. Dutt has admitted that the document is in fact a genuine copy; and not a single argument has been addressed to us to show that any document which is said to be missing was not in fact so but withheld. The learned Judge finds that Ex. 57 is a forgery, though, as I have said, the brother-in-law of the man who wrote it is called for the Plaintiff and does not deny the writing. Mr. Bose has expressed his willingness to argue that if is a genuine document but given for a purpose other than that which the witness Rahman alleges. In other cases the learned Judge's general suspicions of the Police testimony have outweighed the; evidence. Thus the learned Judge comes to the conclusion that the alleged bribery of the Police by the Raja of Narajole is not proved, and that there are grounds and indeed as I have shown strong grounds for supposing that the money was extorted by a trick of the Raja's own uncle. He is however not prepared to say that the story of the Raja that the Police asked for the money is not true. The evidence similarly offered to prove the alleged attempted extortion of a bribe from Jamini Mullick is such that the charge cannot be said to be at all made out. In my opinion the evidence does not support the learned Judge's inclination to think that it may be true. Though there is nothing which in my opinion warrants the suggestion that the Police put the bomb in the Dutt's house, all the evidence being one way and available rebutting evidence not being produced, the learned Judge has, whilst finding the charge not proved, held the circumstances attending the search to be suspicious. Similarly, though the story of Bonomali is shown to be false, the learned Judge holds that there are matters of suspicion on the evidence. The Police Defendants have thus in the opinion of the learned Judge been unsuccessful in meeting the charges made against them.

In my opinion, however, in determining whether these charges are true or not we must first eliminate all considerations derived from extraneous sources, the Naralnghur, Alipore and Midnapore criminal cases, the statements alleged but denied of Counsel in other cases, even though, as the learned Judge in one instance says, such statements may have been made in the presence of the Maulvi. We must then correct the misapprehensions and errors, unfortunate for these Defendants, into which the learned Judge has fallen, and which in part doubtless account for the suspicions he has expressed. I refer, in connection with the charge relative to the introduction of the bomb in the Plaintiff's house, to the learned Judge's comments as regards Asadullah and Mr. Nelson and Kishoripati Roy; and, in connection with the charge that the Police put the bomb in the Dutt's bouse, the reference to Mr. Gregory's alleged but not admitted statements in the criminal appeal and the erroneous supposition of the learned Judge that he had the support of Mr. Cornish's evidence for his suspicions when he had not. The evidence of the Police Defendants has also in my opinion in several instances been wrongly construed to their discredit. Inferences have also been erroneously drawn against these Defendants in respect of matters which are the subject of privilege. We must also (I refer to ourselves) put aside the mass of rumour and hearsay which the depositions contain. Nor must our minds be affected by the fact that the charges are numerous unless they have been also proved. As the burden of proof rests on the Plaintiff, we must then see whether the witnesses by whom he seeks to prove these charges are credible or not. As regards one set of charges they depend on the Plaintiff and members of his family. In my opinion none of this evidence is reliable, and some of it, as that of others, is as mendacious as any in my experience. Then as regards the evidence of third parties that the Police attempted to suborn them or take bribes from them, I have on an examination of the evidence come to the conclusion, for the reasons I have fully given, that there is no one of these serious charges upon which one can lay one's finger and say that it is proved.

In conclusion I may say that if there be any truth in these numerous charges which have been preferred against the Police they have not been made out by credible evidence in this case.

I decide accordingly the first and second issues of fact in the negative. The sixth issue of fact as to damages is dealt with later in the judgment upon the issues of law (Nos. 3, 4 and 5), to the consideration of which I next pass.

[On the questions of law raised in the issues his Lordship's judgment was as follows:—]

It is not necessary to discuss the third issue as it is not contended that the Defendants were entitled to notice under sec. 80. It is therefore also unnecessary to say anything about the fourth issue. The fifth issue, however, raises the question of limitation. The Advocate-General contended, and in my opinion rightly, so far as regards the causes of action for malicious arrest and prosecution, that the suit was barred. Upon these causes of action the suit should have been dismissed in limine. The learned Judge, however, stated that he would subsequently hear the argument about limitation and would meanwhile hear the evidence. The plaint is not, as the learned Judge has stated, a “mofussil pleading,” concerning which according to Privy Council rulings of about the middle of last century and later (when such pleadings were often very imperfect) should not be read too strictly. It was no doubt filed in a Mofussil Court, but is in the English form of pleading and I should say had been settled by Counsel as one would also naturally expect in a case of this importance. Now the suit is described in the plaint as “valued at Rs. 10,000 on account of damages for wrongful confinement and malicious prosecution”. Though the plaint also alleges trespass, it seems that the suit was really based on the two other torts, as it is in respect of these that damage is alleged to be suffered and the cause of action is said to have arisen on the 31st August, 1908 when the Plaintiff was set as liberty, I will, however, assume that with malicious arrest and prosecution was included trespass, All these acts are well-known torts, and the only peculiarity about the suit is that the Plaintiff alleges that these torts were committed by three men acting in conspiracy instead of by one. In one sense this allegation of conspiracy is immaterial to the action, for the acts alleged are such that if proved against any one Defendant, he is entitled as against that Defendant to a decree. The reason, however, why conspiracy is alleged is obvious. According to the Plaintiff it was the Maulvi who was directly responsible for the bomb; so in order to implicate Mr. Weston and the other Defendants in the charge it had to be alleged that there was a conspiracy between him and them to do this act. Similarly, it was Mr. Weston who ordered the arrest which is alleged to be done in conspiracy with the other Defendants to bring them into the charge. But the suit remains what it is—a suit against joint tortfeasors. If it was a suit against one person, it would be admittedly barred as regards the arrest and prosecution. I may leave out of account the alleged trespass if that was part of the cause of action, as the result of Mr. Justice Fletcher's judgment is that there was no trespass in fact and that also is what I have held. If the suit is barred as against one person, the period of limitation is not extended because it happens to be against three. This is admitted. But then it is said, and Mr. Justice Fletcher has held, that there is another cause of action which the Plaintiff has himself nowhere stated. It is said that besides the cause of action on the torts there is a cause of action to recover special damage by reason of a conspiracy to cause damage. The learned Judge accordingly framed an issue which does not arise on the pleadings alleging a general conspiracy to cause damage of which the trespass, arrest and malicious prosecution were merely the overt acts. I have asked learned Counsel to produce to the Court authority for the proposition on which the learned Judge has proceeded, viz., that the same set of facts may constitute two causes of action, viz., for a tort and for a conspiracy to cause damage. And none has been produced. The reason of this is that the two exclude one another. If a joint tort is committed there is no necessity to have recourse to any law of conspiracy. And on an action to recover damage resulting from a conspiracy as distinct from an action on a joint tort, the conspiracy is one to do an act which, if done by an individual, would not constitute a tort, but is actionable by reason of special damage having been caused thereby. The two in fact are mutually exclusive. There is a conspiracy to commit a crime; a conspiracy to commit a tort; and a conspiracy for an unlawful purpose in respect of an act which if done by an individual would neither be a crime nor a tort. All these may be the subject of criminal prosecution. In respect of the civil remedy where there is a joint tort the action is on the tort against the joint tortfeasors. In any other case where in carrying into effect the conspiracy the conspirators inflict, damage on an individual he may sue for the particular damage he has thus separately suffered. In the former case the cause of action is on the tort, and in the latter on the special damage. There is a further difference in that in actions on tort general damage is, except in special cases, sufficient, whereas in such a conspiracy there must be special damage. The class of cases to which the learned Judge refers establishes that there are instances in which two or more persons can render themselves liable to civil proceedings by combining to injure the Plaintiff, although if one of them did the same act by himself and without any preconcert with others he would escape liability both civil and criminal. I agree with the learned Judge in thinking that an action on such a conspiracy would lie in this country, but the point here is different, viz., what is the Plaintiff's cause of action, and what is the limitation applicable. It appears to me to be quit clear that the suit is on joint torts, and that the arrest, imprisonment and prosecution are governed by the one-year rule under Articles 10 and 23 of the Limitation Act. Mr. Justice Fletcher is of opinion that though the suit is described as a suit for malicious prosecution, it is in fact not one. Whilst the learned Judge assigns no grounds for this view, it also appears to be inconsistent with a previous statement made by him that the Plaintiff had two causes of action—one for damage and one for malicious prosecution. As the learned Judge's finding as regards trespass and search was a dismissal on the facts, it is not necessary to enquire whether Article 36 or 39 or both would apply so far as the suit alleges wrongful search and trespass. In my opinion, the suit is barred on the other causes of action, and should not have been entertained on that cause of action on which it has been decreed. On the sixth and last issue I am of opinion that if it was necessary, as according to the learned Judge's view of the case it was, to prove special damage, such damage has not been proved. Portion (but what is not stated) of the Rs. 1,000 which the learned Judge has given the Plaintiff was, it appears, spent to obtain the release of his son, which is not damage to the Plaintiff in this suit, and no evidence strictly so-called has been called to prove the expenditure of the residue. These findings dispose of all the issues, both of fact and law, before us.

I would accordingly decree this Appeal and dismiss the suit, the Plaintiff-Respondent paying all including reserved-costs in both Courts.

[In the course of his judgment, when dealing with the issues of fact, his Lordship discussed several points of law and practice. Portions of the judgment bearing on these points are set out below:]

“I pause here to consider a matter which should have been excluded in the determination of this case. At page 2345 of the paper-book it is noted that Mr. Norton tendered the judgments of the Sessions Court and of this Court in the criminal case to show that the present case had been modified to meet the points raised in the Appeal Court judgment. These judgments have been cited by the learned Judge in support of his conclusion. Now respect must be and is had for any other judgment which is passed by this Court, and for this reason amongst others I have not entered into a discussion of the Naraingarh criminal judgment. Nor have I dealt with the observations said to have been made in the Alipore Conspiracy Trial. The judgment rendered by this Court in the criminal case must be taken to be correct and conclusive but it is so only for the limited purpose for which it was rendered. It decided that the accused had not been proved to be guilty by the Crown of the offences with which they have been charged and nothing more. Not only are such opinions and conclusions not binding on us, but they are, according to a well-known rule, not admissible in evidence at all in this case, and the reason is that neither the parties, the issues, the burden of proof or the evidence are the same. In particular, as regards the evidence, the Court did not and could not, it being a criminal trial, have before it the evidence of the accused. It is still one of the advantages which doubtfully innocent persons possess in this country that they are not called upon and indeed are not permitted to give evidence; and whatever may be the truth which might be elicited by a procedure in which the party most concerned and most instructed in the true facts is called upon or permitted to give his explanation on oath and cross-examination, if the Crown on whom the onus lies fails to establish such facts beyond (as appearing to the Judges constituting the Court) reasonable doubt, the charge must be dismissed. Here the case is entirely different. It is for the Plaintiff, who puts forward criminal charges against the Defendants, to prove them. And it is he and not the defence who has to satisfy the Court before he can get the relief he claims that the confession which his son made (and the other confession, of Surendro Mukerjee if also it stands in his way) was false. He undertakes to do this by evidence, the principal portion of which is the deposition of his son. And we have therefore ourselves to see independently of and uninfluenced by the opinions of any other Court and the alleged statements of Counsel to that other Court (on which the learned Judge has also relied) whether the Plaintiff's case, including the incidental issue to which I have referred, is proved.”

“After the decision of this Court in the criminal appeal the Government deputed the Commissioner of Burdwan, Mr. D.J Macpherson, to inquire and report into the charges made against the Police in respect of the alleged conspiracy. This was done on the 10th June, 1909 and following days. Mr. Macpherson, who has been called in this case, took the evidence of witnesses in the presence of Mr. K.B Dutt, who was implicated by the informer's reports and who is said to have been the chief complainant and spokesman for the others. Some of the statements of the witnesses in that enquiry have been put in and used, and the witnesses for the Plaintiff have been considerably cross-examined as to important discrepancies between these two statements then and now made. Learned Counsel for the Respondent has rightly objected to the admission of any statement which is not relevant to evidence actually given at the trial. The depositions at the enquiry are only admissible either to corroborate or contradict evidence given here. Mr. Macpherson then made a report, and a question arose about its production. I cannot see myself how a finding on a departmental inquiry or Mr. Macpherson's opinion in the matter could under any circumstances be evidence before us. But in any case the Government claim, as it was entitled to do, privilege. We have been told that in the House of Commons the Secretary of State declared that it was not advisable that the report should be published during the pendency of these proceedings. A similar privilege was claimed for a confidential diary of the Maulvi. Mr. Justice Fletcher allowed both claims of privilege. A suggestion was, however, mails in cross-examination on behalf of the Plaintiff that the Government claimed this privilege because it knew that the documents would, if produced, falsify the defence and that it did not, to use Counsel's word, “dare” therefore to produce them. The question in which this unfounded suggestion that Government was assisting a case known by it to be false was made was a scandalous one and was very rightly disallowed by Mr. Justice Fletcher. The supposition is not to be tolerated that the Government of this country, one of whose functions is to administer justice through the very Court in which this accusation was made, was itself party to a conspiracy to defeat the just claims of the Plaintiff by wrongfully withholding that which, if produced, would establish the falsity of a defence of its officers which they had further aided by public money. The suggestion serves, however, as a leading sample of the reckless and unfounded charges which have been made throughout this case.

“On this point of privilege another matter must be noted; when a document is in fact privileged no adverse inference can be drawn from its non-production, for to allow this would be in fact to destroy the privilege. This rule applies as regards the party claiming privilege. A fortiori, where, a here, privilege is claimed by a third person no adverse inference can be drawn against any party to the suit in consequence of such claim and allowance of privilege. The learned Judge, however, when dealing with the evidence, notes that the confidential diary was not produced with the apparent object of drawing an adverse inference therefrom. If further the suggestion was that the confidential diary had been kept back, the Appellants have rightly contended that such an inference was prejudicial to them. The Defendants do not represent the Government, though being its officers the costs of their defence are, I understand, borne by it. They are sued personally, for their own alleged personal wrongs. Had they been the parties claiming and allowed privilege, no adverse inference could be drawn against them. But they are not. They in fact complain that the decision of the Government not to produce these documents has hampered them in their defence. In particular it is claimed that the production of the Maulvi's confidential diary would have helped to establish, as I think it might, the authenticity of the informer's reports which have been challenged. The learned Judge further allowed the claim of privilege for which the Evidence Act, sec. 125, provides, but has yet in several instances drawn inferences adverse to the Police Defendants by reason of the nondisclosure by them of the source of their information, the subject of the privilege. The learned Judge's comments were, in my opinion, not open to him. It must be of course first determined whether there is a privilege or not. But it is obvious that after the Court has once held that a document or subject-matter of enquiry is privileged, with the result that the other party cannot compel production or answer, the comment is not then open to the Court that the party to whom privilege has been allowed has not done or said that which the law and the Court have said he cannot be compelled to do or to say. I will only add as regards sec. 125 of the Evidence Act that though the section does not in express terms prohibit the witness if he be willing from saying whence he got his information, both the English authorities from which the rule is taken and a consideration of the foundation of the rule show that the protection should not be made to depend upon a claim of privilege being put forward, but that it is a duty of the Judge apart from objection taken to exclude the evidence. A fortiori if objection is taken it cannot, since the law allows it, be made the ground of adverse inferences against the witness.”

“The first question which arises is whether Mr. Weston was in law justified in effecting that arrest. Sec. 5 of the Indian Explosives Act (VI of 1908) enacts that a person who knowingly has in his possession or control an explosive substance under such circumstances as to give rise to a reasonable suspicion that he does not have it in his possession or under his control for a lawful object is punishable unless he shows that he had it in his possession or control for a lawful object. Therefore once it is established that a person has under such circumstances in his possession or under his control an explosive substance, the statute casts the onus on him of proving that he had it in his possession or control for an innocent purpose. Sec. 6 of the same Act deals with abettors. Any person who by money, provision of premises, supply of materials or in any other manner abets or is accessory to the commsision of any offence under the Act is punishable in the same way as if he had committed the offence itself.

“The first question then is whether the bomb must be taken to have been in the Plaintiff's possession or control. The bomb was not found in any place in the separate and exclusive possession of any other person than the Plaintiff. It was found in the boitakhana, a common room in possession of the family, by whom it was used and to which they all had access. As pointed out in Queen-Empress v. Sangam Lall, where articles are found in a house in such a place or places as several persons living in the house may have access to, there is no presumption as to possession and control that those articles are in the possession or control of any other person than the karta or house master (in this case the Plaintiff). This case was followed in the criminal appeal of Santosh against his conviction to this Court. There the Chief Justice said: “Had the bomb been found in Santosh's room when the search was made there, this might have been fair ground for imputing to him possession or control within the meaning of the Act. But the discovery in the boitakhana, a place equally open to others, taken by itself, points no more to possession or control in Santosh than in the others who had equal access with him to this place”. The judgment under appeal also holds that in such a case the karta or managing head of the family is primâ facie responsible. But in this case the learned Judge holds that he was not, and as the Appeal Court held that the discovery of the bomb in the baitakhana did not indicate an exclusive possession by Santosh, it follows according to the judgment that the bomb must be deemed to have been in the possession of nobody and nobody was liable to account for it. But if the bomb was there, it was obvious that someone was accountable for it. The grounds for this conclusion are that the Police having acted on information showing that the article was in the exclusive possession of Santosh, they were not entitled to arrest the Plaintiff merely on the ground that the bomb was in fact found in a public room in the house, of which he was the owner. The answer, however, in the first place is that this does not correctly represent the information which the Police had. The reports it is true do not mention the Plaintiff and show that it was Santosh who took the bomb to the house. The reports do not state that the Plaintiff had no responsibility nor do they nor could they state that after the bomb was taken by Santosh to the house it remained in his exclusive possession. They deal with the movement of the bomb only during the period antecedent to that act. What they say is that the bomb was taken by Santosh to the boitakhana, a room which is a public room where it was found. And for a finding in such room the owner of the house was responsible. It is quite possible that information may show that an explosive substance is taken to a house by a particular person, and that when it gets there another person may also become liable for its possession. The bomb having been found in what is by law the Plaintiff's possession, the latter was called upon to account for such possession though information showed that before it came into his possession it was in the possession of someone else, namely, his son who was also the means in which it came there. It may well be that a person may take a bomb to the house of another and ask the latter to keep it for him and the latter may do so or permit it to be kept in a place which the law deems to be his custody. In short the finding of the bomb in the possession or control of another justifies his arrest.

“The learned Judge, however, next holds that the arrest was not justified, as the pleadings show that the Defendants did not arrest the Plaintiff as the owner of the house under sec. 5 but as an accessory under sec. 6. He is of opinion that a different defence has been set up to that raised in the pleadings. Had this been so, I should have been ill-disposed to shut the Defendants out on a merely technical plea seeing it in no way affected the evidence which the Plaintiff had given or might give and that the Plaintiff has shifted his own case from that stated in the plaint throughout the whole trial. In my opinion, however, the learned Judge's finding is not justified.

“In the first place it is in my opinion immaterial in this case under what section of the Act the arrest was made if in fact the circumstances were such that the Act justified arrest. If a person were arrested say on a charge of theft, but it turned out that he should have been arrested for criminal misappropriation, it seems to me, apart from any question of surprise and the necessity for calling any particular evidence, to be hardly possible nor sensible that he could bring a suit for malicious arrest claiming Rs. 10,000 or other damages saying “it is quite true you could have arrested me for criminal misappropriation, but as you did not and pursued me for theft I want my damages, because though liable in fact to arrest, the warrant was issued under the wrong section”. Such a conclusion would, it appears to me, stultify the law. I may cite in this connection the observations of Mr. Justice Harington in Clarke v. Brojendro Kishore Roy Chowdhury, the appeal in which has recently been decreed by the Privy Council. “In the course of the argument there was some discussion as to which of these Acts the Defendant purported to act under; that to my mind is of very little importance; the Defendant is entitled to call in and any statute which justified his action quite irrespective of whether it was present or nor to his mind when he made the search”. The present case is not even one of different Acts, but of different sections under the same Act.

“It is, however, unnecessary to decide this question in the present suit, for the learned Judge is in error in supposing that the warrant was under sec. 6 and not under sec. 5. The case against Santosh appears to have been under secs. 4 and 6, but in the case of the Plaintiff the application, dated 23rd July, under the recommendation of Mr. Brett for the warrant was under secs. 4 and 5. This appears plainly on the face of the record (Ex. R in I, page 764), and in Mr. Nelson's order-sheet it is stated ‘The Police apply for a warrant against the father of Santosh the owner of the house in which the bomb was found. Issue warrant without bail’. Again the warrant itself plainly states ‘whereas complaint, etc., for offence under secs. 4 and 5 of Act VI of 1908, etc.,’ (Ex. XCVII in I, page 4387). Again the remand order was under the same sections. Again the Plaintiff himself stated on the 7th August in a petition for bail that he was arrested under secs. 4 and 6, ‘the Police stating me to be the proprietor of the house in which the Police allege that they found a bomb in connection with the case instituted against Santosh Dass’ (Ex. Ia, page 3641). He was himself thus quite conscious of the grounds of his prosecution. Lastly, Mr. Dutt, his Counsel, was aware of the fact. The following questions were put by him to Mr. Weston (page 7947):—

Q.—You know the section under which Peary was arrested, sec. 5, which says ‘any person who makes …. punishable’. Did you have any information on the 8th of July which gave rise to a reasonable suspicion that Peary knowingly either made the bomb or kept it in his possession for an unlawful object?

A.—I had the fact that the bomb was found in his house and my interpretation of the law is that I was justified in arresting him and the onus of explaining the presence of the bomb in his house lay upon him—whether my view of the law is correct or not, it is for His Lordship to decide.

Q.—And it is for that reason and that reason alone that you had Peary arrested on the 23rd 2 is that your evidence?

A.—That is.

Q.—Why did you not order his arrest between the 8th and the 23rd?

A.—Because until about the 21st I had no knowledge that the bomb was a dangerous one.

Q.—You swear to that, that you had up to the 21st or 22nd no knowledge about the dangerous character of the bomb 2

A.—I do

Q—I put it to you that you had Peary arrested with a view to extort a confession from his son?

A. That is utterly and absolutely false.

“Mr. Dutt now explains that this question was put ‘with another object’ which he does not state. But whatever his object was, it is plain that during the trial he assumed that the arrest was under sec. 5, notwithstanding that the plaint incorrectly mentioned sec. 6. I say ‘incorrectly’ because not only is there no evidence that the proceedings were taken under sec. 6, but the evidence is directly the other way. Then he admits that at the very close of the case during his (Mr. Dutt's) reply, when the argument for the defence had been closed, he argued that the Defendants' pleading was under sec. 6 and that (notwithstanding the facts) they should not be allowed to rely on sec. 5. In other words though the warrant was in fact under secs. 4 and 5 they were not to be allowed to say so. Their mouth was thus to be shut whilst a charge of crime and fraud was sought to be fixed upon them. This is another but very marked case of the constant and unfair shifting of ground by the Plaintiff at the trial. The learned Judge, however, gave effect to this belated argument and has held that notwithstanding the application for arrest, warrant and proceedings were under secs. 4 and 5, that the Plaintiff himself stated and understood that he was being proceeded against under secs. 4 and 5, and that his Counsel at the trial proceeded on the same basis—the Defendants were not entitled to say that they acted under secs. 4 and 5, because they are held to have pleaded (apparently in ignorance of the plain facts), that the Plaintiff was arrested as an accessory under sec. 6. There is no mention of that section in the written statement, but the learned Judge reads the reference to accessory as implying action under the section. The word accessory is, however, there used not with reference to the warrant but to the information which the Police had received prior to the application for a warrant. It was thought that information coupled with the circumstances of the case including the fact of the bomb being in the house of which the Plaintiff was owner, raised a reasonable suspicion against the Plaintiff that he was fully aware of what was being done. The application for the warrant was actually under secs. 4 and 5 and against lie Plaintiff as owner of the house. If the proceeding had been under sec. 6 persumably the written statement would have so said. It could not have done so, however, unless the gentleman who drew it have never seen the application, warrant and proceedings in the case including the Plaintiff's own petition. However this be, it is plain that an erroneous statement in the pleadings (assuming that for the sake of argument though not holding that there was one) cannot overcome the actual fact apparent on the face of the record and admitted by the Plaintiff himself and his Counsel. The latter should not (after having dealt with the case as one under sec. 5) have been permitted to shift his ground in the last stages of the case in reply. I hold that it is established beyond all doubt that action was taken under secs. 4 and 5 and not sec. 6 and that the Defendants are not precluded by anything in their pleadings from avowing that which is plainly the fact. If, as I have found, the Defendants were not responsible for the bomb, then sec. 5 justified the arrest of the Plaintiff on its discovery in his house. In fact Mr. Dutt is recorded as having said in the first Court that “if the Plaintiff had been arrested on the 8th July nothing could have been said and this for the reason that the Plaintiff was the owner of the house. His case then and until he shifted it in reply was, that his client should (if the Defendants' case be true) have been arrested on the 8th July, but the fact that he was not, but later on, on the 23rd, showed that Mr. Weston had no bonâ fide belief in his right to proceed against him as the owner of the house.”

“Then Mr. Dutt put forward a charge of conspiracy to produce false evidence and to forge a document, Ex. 61, against both Mr. Weston and Mr. Hadrill, formerly a member of his own profession and now the solicitor instructing Counsel for the defence.

“A witness of the name of Akshoy Kumar Pal says that he was asked not to give evidence for the Crown ‘against the country’ by a man named Paramananda Shaha, who himself makes charges of bribery against the Police. The latter is alleged to have asked the witness to say that the Police had coerced and tutored him. He also showed a note which is said to be in Mr. Dutt's writing, stating that Mr. Dutt would arrange that Abinash Mitter and the Raja of Narajole would, between them, pay Rs. 6,000. The witness also swore that Paramananda took him to Mr. Dutt's house, where he saw Mr. Dutt. He asked the latter whether he had said what Paramananda had stated and whether he had sent the letter, to which Mr. Dutt said ‘yes’ and that the witness would get the money through Paramananda. He also said that Mr. Dutt ‘bribed almost all the witnesses and got them over; tried to do the same thing with me; played the same trick; but could not succeed. Since the last two find a half years all sorts of oppressions are being perpetrated on me’. There has been some difficulty in reading the letter which my brother Chatterjee says contains some mistakes which are not likely to have been made by Mr. Dutt. On the other hand, the Appellants draw attention to certain words which they claim to be similar mistakes in a sample writing made by Mr. Dutt before Mr. Macpherson. The witness read the document as ‘we are also prepared to give or pay, please make all arrangements for it’. The witness Akshoy swears that he knows Mr. Dutt's writing; that the note is in his writing, and that Mr. Dutt admitted that he had sent the letter. This letter is alleged to be a forgery. It is true that Mr. Dutt has not been called, but I am not prepared to say that the document has been proved. I am not, in the first place, satisfied with the evidence of Akshoy. Pal. If he was in fact approached and was an honest man, he would have rejected Paramananda's offer then and there. Why did he, as he says, go to Mr. Dutt? If this evidence is true, it would tend to show that, instead of rejecting the offer, the witness was seeing what might come of it. He also admits that though he was a witness for the Crown, he did not say ‘all, but what little I said I did so with great reserve’. Nextly, the witness in his evidence is not competent to depose to Mr. Dutt's writing, and as Mr. Justice Fletcher points out this and other documents were, taken out of Court for expert examination, but no expert was called to speak to it. It is possible that the document is a forgery, and that Paramananda wrongly took Mr. Dutt's name, but if so, the evidence of the witness that Mr. Dutt admitted that he sent the letter must be untrue. However, the matter I now desire to discuss is not the charge against Mr. Dutt which this witness introduces, but Mr. Dutt's counter-charge against Mr. Weston and Mr. Hadrill and the Maulvi in respect of it. Mr. Dutt who personally cross-examined the witness who was making charges against him, suggested to him that Mr. Weston, in concert and conspiracy with the Maulvi and Mr. Hadrill, put up this witness to tell a false story, and either forged or put forward this document knowing it to be forged, which suggestion the witness denied. This suggestion was supported by another that Mr. Hadrill and the Counsel then appearing for the Crown, were putting up with Mr. Weston and that the witness Akshoy Pal was there also. As in other cases, an attempt has been made before us to show that what was suggested was not that which the question put obviously meant, and that there was no charge against the Defendants of fabricating this document, or using it, knowing it to be fabricated. This explanation I do not accept.

“And the learned Judge in his judgment, while holding the document to be a forgery, added ‘But while saying this I am satisfied on the evidence that there is not the slightest ground for suspecting that either Mr. Weston or Mr. Hadrill had anything to do with it nor did they in any way suspect that it was not a genuine document’. An application was made to Mr. J.C Dutt, Attorney for the Plaintiff, to state the grounds on which this question was put, but Mr. J.C Dutt replied that he was advised not to answer. An application to the Court by Mr. Hadrill for an enquiry was refused, the matter being pendente lite. Before us the matter has been put in this form, namely, that the document was put forward at the instance of Mr. Weston though Mr. Bose says whether Mr. Weston had knowledge that the document was forged he ‘cannot say,’ nor can he say that the document was made at the instance of Mr. Hadrill. In my opinion, this is not a creditable manner of dealing with the question. In the first place no attempt should have been made to deny that the charge made was that which appears on the face of the question; which was understood and stated without objection by Counsel for the defence; which was put to Mr. Weston without objection; which was repeated in express terms by Mr. Dutt in his reply; and which was so understood by the learned Judge who rejected it. Secondly, the learned Judge having found as the fact is that there was not the slightest grounds for the charge, learned Counsel should frankly have withdrawn it and then stated to the Court the grounds, if any really existed, on which Mr. Dutt considered himself justified in putting it.

“Such grounds as have been put forward by Mr. Bose (for Mr. Dutt has not himself attempted to justify his charge) are no grounds whatever for the charge, which should never have been made. Mr. Garth has, in consequence, asked us to refer Mr. Dutt's conduct in preferring this unfounded charge to the Court, for consideration whether action should be taken against Counsel in respect of it. I do not, however, propose to do so; notwithstanding the number and reckless character of other unfounded charges exceeding any in my experience, which have been made in this suit because I think that with this expression of opinion this case, which has already occupied enough of the public time, should in all its accepts now come to a close. I wish, however, to add some observations to what I have said. After this charge had been made the Advocate-General requested the Court to ask Mr. Dutt whether he made the charge on instructions, and, if so, on whose. Mr. Justice Fletcher appears to have considered that he was not entitled to do that. In my opinion the Court is so entitled and that were this not so, it Would be powerless to prevent that abuse of cross-examination which the law directs. Instructions to Counsel further are only privileged in the sense of being protected from disclosure to the opponent. There is no privilege as against the Court. If the latter calls for written instructions it cannot obviously use them as evidence in the cause which is tried, and for the purpose of such trial would have to treat them as confidential. They could, however, in my opinion, be called for then and there and be used after the trial on the determination of the question whether disciplinary action should be taken against Counsel by the Full Court to which the matter would then have to be referred. If the Court were shorn of this power it might not be able to take such action in a class of cases which most justified it. The learned Judge also appeared to think (see interlocutory judgment not printed, dated 2nd February, 1911) that he was prevented from acting by reason of the fact that the question reflected not on the witness but on a third party, and that sec. 150 of the Evidence Act must be referred back to sec. 146 which, in the opinion of the learned Judge, had no application. I am myself not prepared to hold that, even if sec. 146 did not apply, the Court could not do that which is necessary for the effective exercise of its disciplinary powers over advocates; but I may further point out that even on a strict reading of these sections, sec. 146 did apply, for the question, though it did reflect on third parties, also reflected on the witness. I wish further to add that in my opinion it is not sufficient even to plead instructions. Counsel have a responsibility in the matter, and are not justified in making serious charges of fraud and crime unless they are personally satisfied that there are reasonable grounds for putting them forward.

“In connection with this question of cross-examination, which appears to have been often conducted both in form, manner and tone in an insulting and provocative way, I notice that Mr. Dutt claimed to be entitled to regulate the civility which he should extend to a witness. On an objection by Mr. Gregory to the offensive tone of Mr. Dutt's examination of Captain Weinman, he is recorded as saying ‘I have been more civil than he deserves’. I see no ground for this observation in the evidence, and provocative remarks of this kind to witnesses should be disallowed. On another similar objection in the case of another witness, the Court is reported to have remarked that it must allow some latitude to Counsel. In my opinion, no latitude should be allowed in such matters at all. The cross-examination also contains a large number of unfair and misleading questions. When, moreover, Counsel puts it to the witness that he may take a statement from him, or otherwise states the case, care should be taken to see that the witness may not have ground for thinking that his confidence has been misplaced.”

“I now pass to the charges made in respect of Surendro Nath Mukherjee, a co-accused of the Plaintiff's son. It is charged that, on the 11th August, 1908 (though Mr. Dutt opened the 13th), this man received three kicks in the stomach from Lal Mohun, which are said to have been of so serious a nature as nearly to kill him and to have cause him to involuntarily pass a stool and urine. The second charge is that the Police produced a false and tutored confession from him on the 15th August. Learned Counsel for the Defendants objected, and I think rightly, on the ground of irrelevancy, at having to go into these charges which occupied so considerable a portion of the record, but were overruled. Had the “primary” conspiracy of which Mr. Dutt speaks been relevant, possibly (though it is not necessary to decide it) that portion of the evidence which relates to the procurement of the confession might have been relevant, though even then it would be doubtful whether the evidence as to the alleged kick would be material, seeing that it is not alleged to have been the inducing factor of the confession, and if it were, it would, I presume, have been put forward, which it was not, in the criminal trial. As matters, however, now stand, it is obvious that the fact that a third party was kicked (if the story be true) on the 11th August, has no bearing on the issue whether the Defendants put a bomb in the Plaintiff's house prior to the 8th of the preceding July, or arrested without cause to Plaintiff on the 23rd of that month, however reprehensible in itself such savagery would be. Objection was also taken to the reference which the learned Judge says he made after the trial was over to some medical works not stated. The objection is well-founded, for whatever a Court relies on should be made known at the trial to the parties, so that they may have an opportunity of adducing evidence or argument on the point, Durga Prasad v. Mam Doyal(4). The matter is not, however, in the view I take of the facts, of importance, for the question with which the learned Judge deals only arises if and when it is proved that the kicks were given the alleged results of which the learned Judge discusses.”

“I now deal with the question whether Mr. K.B Dutt should have accepted a retainer in this case; whether he should have been called as a witness; and what is the effect of his not having in fact been called. Though these matters raise questions of professional conduct. I am not dealing with them simply on this ground but because they have a most important bearing on the decision of this case. Objection was taken before Mr. Justice Fletcher to Mr. Dutt's appearance as Counsel in this case on the following main grounds:— that he had a personal interest in and had in fact ‘engineered’ the case; that he had a personal knowledge of the facts of the case; that he was a proper and material and, indeed, necessary witness to facts in the case; that having been concerned in preferring charges he should support them by his testimony; and that both witnesses and Counsel would be embarrassed by his appearance, the more particularly so as serious charges, such as bribery, were personally made against him. The learned Judge overruled these objections in the following passage:— ‘It was made a matter of deliberate and unrestrained attack on Mr. Dutt that he had not gone into the witness-box. Mr. Dutt has himself explained the reason of his abstention, and that reason appears to me to be satisfactory. His client, in whose favour his testimony would have been given, with full knowledge of this saw fit to retain him as his Counsel, and it cannot be suggested that there was anything improper in Mr. Dutt's accepting the retainer.’

“I will deal first with the question whether Mr. Dutt should have appeared as Counsel in this case. Mr. Justice Fletcher is of opinion that it cannot be suggested that there was anything improper in his doing so. I should have myself, in the absence of any other authority, thought that under the circumstances of this case to which I shall refer, it was not proper. I am, however, fortified in this view by the answers which were given by the Bar Council to certain questions put to them on this very matter, and in respect of this very case. We have referred to the Bar-Council's report with the consent of Counsel on both sides. It will be found set out in 16 C.W.N xlvi. Their decision is of course not binding on us as Judges. But the Bar Council are the recognised authority on all matters of professional conduct and etiquette affecting Counsel, and their opinion therefore is of the greatest weight and value. Their reply to the questions put to them was this: (1) If Counsel knows or has reason to believe that he will be an important witness in a case he ought not to accept a retainer therein. (2) If he accepts a retainer not knowing or having reason to believe that he will be such a witness, but at the opening or at any subsequent stage before evidence is concluded it becomes apparent that he is a witness on a material question of fact he ought not to continue to appear in the case unless he cannot retire without jeopardising the interests of his client. (3) If Counsel knows or has reason to believe that his own professional conduct on matters out of which the action arises is likely to be impugned in the case he ought not to accept a retainer. (4) If he accepts a retainer not knowing or having reason to believe that his own professional conduct in such matters is likely to be impugned but finds in the course of the case that it is so impugned he ought to adopt the same course of conduct as is mentioned in clause (2) ante. (5) In either of the cases mentioned in cls. (2) and (4), there is no rule of professional ethics which debars a Counsel if he continues to act as Counsel in the case from going into the witness-box and being cross-examined.

“I agree with this opinion. The question then is whether Mr. Dutt does not come within rule (1), and of this on the facts there is, in my opinion, no question. Mr. Dutt is, I believe, one of the leading citizens of Midnapore and an old resident there where he is or was the Chairman of its Municipality. He is also engaged in politics, was Chairman of the Midnapore Conference and the chief of what in called the ‘Moderate’ section of Nationalist politicians. His position is set out in the statement which he made under sec. 161 of the Criminal Procedure Code to the Defendant Lal Mohun Guha. Mr. Dutt took some part in what are called swadeshi cases. He must be, from his position of course well aware of the political condition of Midnapore, and the in and outs of Nationalist politicians, whether Moderate or Extreme, in the district. He was himself implicated in the informer Laha's reports as being a member of the so-called “bomb conspiracy”. It is in evidence that from the 9th July to the 23rd July the Plaintiff consulted him almost daily, and reported to him what was being done as regards his son in prison, the alleged misdoings of the Police as also the Plaintiff's own alleged conversations with Mr. Weston in particular; and this is extremely important: he was, according to the Plaintiff, told that Mr. Weston had declared to the Plaintiff that he knew him to be innocent, that he need not be nervous, but had notwithstanding told the Plaintiff that he would arrest him if he did not get his son to make a confession which the Plaintiff understood Mr. Weston to know to be a false one. Mr. Dutt was one of the spokesmen of the alleged grievances of Midnapore at the visit of Mr. Maddox on the 4th August, 1908. If we are to believe Maity he can also speak to the fact that Mr. Weston sent more than one chit to the Plaintiff and the contents of them. He was present at the Pleaders' Library on the 15th August when Ashutosh made his alleged revelations about the Police. On the 16th August he telegraphed and thereafter communicated with Government on the subject of the alleged misconduct of the Police. He appears to have been concerned in the preparation of the statements of witnesses sent to Government against the Police on the 27th August. He is said to have directed that note-books should be kept recording complaints against the Police. He was present as Counsel on the 31st August, when its is alleged that the Court was of set purpose kept by him in ignorance of the fact that his clients were filing petitions of retractation of confession. He is concerned in the subsequent proceedings. He was present as spokeman and gave evidence at Mr. Macpherson's enquiry. He is said to have had information of a large number, if not all, of the principal incidents in this case, such, for instance, as the alleged kicking of Surendro, and to have had personal knowledge as to others. He is charged with having written a letter offering a bribe to the witness, Akshoy Pal, and is alleged to have bribed a large number of other witnesses in the case. In addition to his own personal interest, a number of the actors and witnesses in this case are Mr. Dutt's relations or connections, such as Madhu Sudan Dutt, in charge of the room where the bomb at Saroda Dutt's house was found, Rash Behary Bose, who Mr. Justice Fletcher thinks sent the “stabbing portrait” to Mr. Weston threatening his life, Sreenarain Pal, implicated by the reports, Jogjiban, an accused in the Arms Act case and the Midnapore Bomb conspiracy case, Santosh Dass, the latter's mother-in-law, and Nibaran Chunder Mitter. The circumstances point to his having an interest in and having taken an active, and I think leading, part in the institution and prosecution of this suit which represents in effect his own claims and grievances and those of others. It is not necessary therefore to go into every detail. It is sufficient to say that Mr. Dutt's name crops up in every part of the evidence either as the person directly concerned or as having personal knowledge of the facts or as being in a position to corroborate them.

“It is obvious that, under these circumstances, Mr. Dutt must have known that he was an important witness in the case and it was therefore not proper of him to have accepted a retainer in the action. I wish to add a reference to a decision of this Court. One of the results of Mr. Dutt's appearance was this that he had to examine and cross-examine as to matters on which he had personal knowledge, such as alleged conversations between him and the witness. And he actually cross-examined a witness, who made charges of personal corruption against himself, a most unseemly spectacle. In the decision to which I refer, which is unreported (In the matter of certain Counsel, 4th August, 1908) the Full Bench observed as to the unprofessional and objectionable character of Counsel cross-examining a witness as to facts within his personal knowledge. Sir Francis Maclean, C.J, then said, delivering the judgment of the Court: ‘I agree with what has fallen from the Advocate-General that the effect upon the minds of a Jury of a cross-examination conducted in this method might prove injurious to the administration of justice’. The Chief Justice here refers to its effect on the Jury, but as I will later show the fact that Mr. Dutt has conducted this case has had a prejudicial effect on the mind of the learned Judge. The Chief Justice continued: ‘Suppose for a moment that a leading Advocate were in cross-examination to put to the witness in the box a question of this sort, why did you not tell me so and so and so and so’. The possible effect upon the mind of the Jury might be that they might regard the suggestion of Counsel as being pitted against the statement of the witness, an entirely fallacious view, with the result that, in consequence, they might disbelieve the latter. The Chief Justice then considered the effect which might be produced upon the mind of the witness himself; how such an examination might be very embarrassing and conducive to his giving answers he might not otherwise have given. To these I add the obvious embrrassment of Counsel on the other side in examining or cross-examining to personal charges against their opponent. The objection I may lastly add was not removed by Mr. Dutt saying instead of ‘did I not do so,’ ‘did I not say so,’ “did not Mr. K.B Dutt do or say so?”

“I nextly deal with the question of whether having accepted such a retainer, Mr. Dutt should nevertheless have gone into the witness-box. Mr. Justice Fletcher then says ‘Having, done this (that is accepted the brief) it was in strict accordance with the rule of professional ethics of almost universal application that having taken up the position of an advocate he should refrain from testifying at a trial which was being conducted by him’. The learned Judge places the matter too high, as amongst other matters, a reference to cl. 5 of the Bar Council's report show. There is nothing necessarily unprofessional in Counsel giving evidence in a case in which he appears as such. There have been several cases, both in England and this country, in which this course has been taken without objection. Two unreported instances are noted in Sethna v. Mirza Mahomed Shirazi. It is true that in that case Mr. Justice Beaman held absolutely that the Court would not allow Counsel conducting cases to give evidence on behalf of their clients in respect of matters with which they were acquainted before they were retained, but that they might do so as regards matters occurring after their retainer. But such decision is in my opinion erroneous. It omits to notice that Stones v. Byron(6) and Beane v. Packwood(7) were not followed in Cobbett v. Hudson(8). It is opposed to Mr. Inverarity's case, which the learned Judge cites. Considered as a rule of absolute exclusion as opposed to an expression of opinion of what is desirable, the decision is in direct conflict with the Evidence Act, and both with the Privy Council decision to which I next refer and the opinion of the Bar Council regulating questions of professional conduct above cited. The learned Judge who decided that case failed to distinguish between competency and the opinion that as a general rule it is desirable that the same person-should not be both advocate and witness. In the Privy Council decision, Victor Corea v. Peiris(9), a gentleman named Schroder was examined as witness, though counsel in the case. The Judicial Committee did not disapprove of this as contrary to the professional ethics of which Mr. Justice Fletcher speaks, but on the contrary there stated that Counsel had been properly examined.

“The true rule in such matters is, in my opinion, as follows. Counsel though they may be engaged in the case are in law competent to testify whether the facts in respect of which they gave their evidence occurred before or after their retainer [see sec. 118 of the Evidence Act, Cobbett v. Hudson]. The Court has no authority to exclude such evidence if tendered. It is not in all cases a breach of professional ethics for a Counsel retained in the case to give his evidence in it. There are cases in which he properly may and, indeed, should do so. At the same time it is recognised by both the Court and the profession that, as a general practice, it is undesirable, when the matter to which Counsel deposes is other, than formal, that they should testify either for or against the party whose case they are conducting. In judging the matter from the point of view of what is desirable as opposed to what is legal much must depend on the circumstances of each case. In the present case, having regard to Mr. Dutt's interest in the proceedings, the fact that he has taken part in the events referred to in them and has both personal and reported knowledge of a very large number of the facts testified to in the evidence, it was in a high degree undesirable that he should have been both Counsel and witness. The real objection in Mr. Dutt's case is that he was Counsel in the case and not, therefore, as he would properly otherwise have been, a witness. I may add that Curry v. Walter(10), to which Mr. Bose referred, has no bearing. There Counsel was subpoenaed to prove what had been stated by him on motion in Court. The Court was of opinion that on such a matter Counsel should not be called, but that the party should prove it by other means or witnesses who are present; but it should be at the option of the Counsel whether he would give his testimony or not. The Court therefore decided that it was not obligatory on Counsel in such a matter to give evidence, though he might do so if he liked. It did not decide that he could not give evidence. It is further of no authority in this country where a Counsel must obey a subpoena to give evidence as any one else must do.

“The next point (which is the material one here) is whether the Appellants were entitled to ask the learned Judge to draw inferences adverse to the Plaintiff from the fact that Mr. Dutt had not been called. This they were clearly entitled to do. If it be a fact that under the circumstances of this case Mr. Dutt could not properly have been both Counsel and witness, those circumstances also show that it was improper of him to have been Counsel at all. And if he were not Counsel there can be no possible question but that he was a material and necessary witness. It was; not open to Mr. Dutt to act breach of a professional rule, and then to plead the fact of such breach both as a reason why he could not be a witness and also why adverse comment should not be made upon the fact that he was not a witness. If it be that as Counsel he ought not, under the circumstances of this case or otherwise, to have been a witness, then it was the act of his client which made Mr. Dutt Counsel and he cannot plead his own act against such comment. If Mr. Justice Fletcher's view were correct, then if a litigant is aware that a particular Counsel has knowledge of a fact which he does not wish disclosed or that such Counsel's evidence if given would contradict him, he has only to retain him and then say to the Court: ‘You must not draw inferences against me, because I do not call the man who can speak to the facts which I ask the Court to believe, for I have made him my Counsel.’

“The next question is what is the nature of the inference which should be drawn from the fact that the Plaintiff has but forward Mr. Dutt as his Counsel and not as his witness. The learned Judge says: ‘Mr. Dutt has himself explained the reason of his abstention (from the witness-box) and that reason appears to me to be satisfactory’. What those reasons were are not stated, and the learned Judge has therefore not placed us in a position to appreciate them. But if those reasons were that Mr. Dutt had not in fact personal knowledge of the facts, or were a statement of the extent to which he was concerned in those facts, or as to the nature of those facts, such a statement being in the nature of evidence should have come from him in the stand and not from his place at the Bar. The learned Judge next says ‘His client, in whose favour his testimony would have been given, with full knowledge of this fact saw fit to retain him as his Counsel’. How and on what grounds could the learned Judge assume, as he here does, that had Mr. Dutt been a witness, which he was not, his testimony would have been given in favour of his client? This observation indicates the danger to which Sir Francis Maclean, C.J, in the case cited referred, namely, that inferences unsupported by the evidence of Counsel himself may be drawn from his mere appearance in support of a cause of the facts of which he is alleged to have personal knowledge. So far from the inference being what the learned Judge states, it is precisely the other way. The learned Judge has himself correctly stated the rule when dealing with the Defendants' case, viz., that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The same rule applies to Mr. Dutt, for whether he could or could not as Counsel have given evidence in this case, he should not have been Counsel and could and should have given evidence for the reasons I have given.

“On this matter it only remains to indicate on what points such presumption should in this case work. It works as regards every one of the facts to the chief of which I have alluded, in which Mr. Dutt was himself an actor, or had alleged personal or reported knowledge. I need not repeat them here. They are also mentioned in detail in the evidence. I only say here that in my opinion the most important points affected by this presumption are the alleged reports made to Mr. Dutt between the 8th and 23rd July as to the alleged conduct of Mr. Weston and the Police, subsequent information on the same point received by him, the circumstances leading to the institution of this suit; and matters in the suit itself, such as the incident of the 31st August which Mr. Dutt who was then Counsel makes the basis of a charge of dishonesty against the Defendants and the presiding Magistrate Mr. Nelson. So far from presuming, as the learned Judge does, that Mr. Dutt's testimony on these and other points would have been in favour of his client, I presume the other way and the learned Judge might have himself so found if Mr. Dutt had gone into the stand. One of the chief grounds on which this suit has been decreed against Mr. Weston are the alleged conversations he had with the Plaintiff when he is supposed to have repeatedly told the latter that he was innocent, that there were therefore no grounds for proceeding against him and that he need not be nervous and yet that he expressly avowed his alleged illegalities in telling the Plaintiff that he would arrest him nevertheless if he did not get a confession from his son. These conversations are said to have been reported to Mr. Dutt at the time. Is it to be conceived that if Mr. Dutt had been told about these at the time it would not have been of the first importance that this should be proved? Would not Mr. Dutt have been called to give that presumptively independent evidence which the suit now lacks. I assume that Mr. Dutt was not called because he could not corroborate the Plaintiff or his case on this or other points. Had he done so, it would have been necessary for him to explain how he did not mention the subject of the alleged reported conversations to Mr. Maddox on the 4th August, but had on the contrary no complaint to make against Mr. Weston; how he did not mention it in his letter to Government of the 27th August; how it finds no place in the subsequent proceedings and does not see the light of day until this suit, and then, after Bonomali's charge had failed, it is put forward as the basis of the new case on which the suit has been decreed.

“In this connection I desire in justice Counsel for the Appellants in the first Court to deal with another matter. Mr. Justice Fletcher who has, in my opinion, erroneously approved of Mr. Dutt's conduct, has on the other hand in my opinion passed an undeserved judgment on the conduct of Counsel for the defence. After having observed that Mr. Dutt had followed the rule of professional ethics, he continues: ‘I may observe that this rule of professional conduct was not, I regret to Bay, observed by Mr. Dutt's opponents’. This observation is based on the fact that Mr. Norton called Mr. Gregory (a junior Counsel in the case) as his witness, and the latter gave his evidence. Mr. Gregory was called to repel a suggestion of Mr. Dutt, who in his numerous charges has not spared members of his own profession, that Mr. Gregory had not in respect of a particular matter, viz., that arising out of exhibit 61, properly and fairly conducted the case before the Sessions Judge and had attempted to keep back the document from the Court. Mr. Gregory from his place at the Bar gave his explanation. Though not so bound, it was properly open to Mr. Dutt to accept a statement made in such a matter and in such circumstances from a fellow-member of his own profession. He refused and objected to the statement being made. Thereupon Mr. Norton put Mr. Gregory in the witness-box when he was cross-examined at length by Mr. Dutt who amongst other matter's thrice made to him the misleading suggestion that the Counsel Mr. Morrison was not present in Court on the 23rd when A.K Pal who speaks to this document was examined, though it is clear from the record that he was in fact present. I have already stated what in my opinion the general rules are as regards the calling of Counsel as witness. In my opinion Mr. Norton was fully justified in calling Mr. Gregory both in protection of the latter's professional reputation which had been in fact groundlessly assailed and of his own client's interest.

“In this connection I may cite an observation of Sir Francis Maclean, C.J, in the case of Nundo Lal Bose v. Nistarini Dasi(11): ‘I can scarcely suppose that any Counsel, if he understood that the other side were not prepared to accept his statement made upon his word of honour would not himself ask that he might not be allowed to give his evidence in the usual way.’

“Mr. Norton has also invited our opinion on another matter on which the learned Judge has censured him. During the examination of the witness Mr. Wilson, the latter produced at the request of Mr. H.D Bose, who was cross-examining him, a private pocket-book. An irrelevant cross-examination on it followed. The book being a private one, Mr. Norton marked the pages to which Counsel might refer in respect of the subject of his cross-examination, the other pages referring to other matters. Mr. Bose, however, looked at pages which had not been so marked. On the face of it this was highly improper on the part of Mr. Bose, and Mr. Norton appears to have naturally expressed his opinion strongly to this effect. The learned Judge is, however, stated not to have then and there, as I think should have been done, determined who was in fault. Mr. Bose brought in next day a written explanation of his conduct which the learned Judge is said to have refused to have gone into, and then the matter ended until the judgment when the learned Judge observed as follows:—‘I may further add that I viewed at the time and still view with complete disapproval Mr. Norton's unfounded and abusive attack on Mr. Dutt's junior, Mr. H.D Bose’. I do not know what the explanation was which Mr. Bose offered and on which the learned Judge refused to adjudicate, and I am not therefore in a position to say whether Mr. Bose was to blame. primâ facie and in the absence of proper explanation Mr. Norton was justified in taking strong exception to Mr. Bose's conduct. The matter might have been decided then and there, but as it was not, I cannot say that Mr. Norton was open to censure. I may further observe that the judgment states no grounds on which it is based, though the admitted fact that Mr. Bose from one cause or another looked at the Unmarked pages in my opinion called for them.”

Coxe, J.:— I entirely concur with the judgment of Mr. Justice Woodroffe both as to the order and as to the grounds therefor.

D. Chatterjee, J.:— This Appeal arises out of a suit described as one for damages for wrongful confinement and malicious prosecution. The Defendants pleaded limitation before the Court below, but were overruled. The question of limitation has been pressed before us and I shall deal with it first.

The Plaintiff was arrested on the 23rd of July and discharged on the 31st of August 1908. The suit was filed on the 15th of November 1909, i.e, more than one year after the discharge, and would therefore be barred in so far as it was one for wrongful confinement or false imprisonment and malicious prosecution under Articles 19 and 23, Schedule I, Limitation Act. The Plaintiff's legal advisers evidently saw this, and it was stated in the 14th paragraph of the plaint that the period of the notices served under sec. 80 of the Criminal Procedure Code being excluded, no part of the Plaintiff's case was barred. The Court below has held, however, that no such notice was necessary, and no exception has been taken to that view of the law before us, and no reliance has been placed upon any such notice as an answer to the plea of limitation. It has been contended, however, that the suit was based on a conspiracy between the several Defendants, and as conspiracy is a distinct cause of action by itself, the suit must fall either under Article 36 or Article 120, and is therefore not barred; it has been further contended that the illegal search of the Plaintiff's house is a cause of action which at least is not barred, as it would fall either under Article 36 or Article 39 or Article 120. The first contention as regards conspiracy has found favour with Mr. Justice Fletcher, and I shall deal with it first. The learned Judge has relied on the case of Quinn v. Leathern(12), and Mr. Dutt has also relied on the same in support of his argument. The learned Judge says: “The truth of the matter is that in a case like the present the Plaintiff has two causes of action—one to recover the damage that has been occasioned to him as the result of the conspiracy, and the other to recover damages for malicious prosecution against the Defendants as joint tortfeasors. This is well illustrated by the case of Quinn v. Leathern”. With great deference I think that case itself contains an answer to the argument. Lord Halsbury, in delivering the first judgment in that case, says: “There are two observations of a general character which I wish to make—one is, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions, which may be found there, are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be, quoted for a proposition that may seem to follow logically from it”. Now what are the facts in Quinn v. Leathern, and what does the case decide? The Defendants were the office-bearers of a trade union; they threatened the Plaintiff with injury if he employed men who were not members of the union; the Plaintiff was willing to have his men enrolled as members, but Defendants insisted on his dismissing them and taking members of the union in their place; the Plaintiff refused, and they then threatened a large customer of the Plaintiff with injury if he dealt with the Plaintiff and thus compelled him to cease to deal with the Plaintiff. The Plaintiff brought a suit for damages. The Plaintiff had every right to carry on his trade in the way most profitable to him, provided he did not infringe on the rights of other people, and so had the customer of the Plaintiff every right to deal with whomsoever he pleased under similar restrictions, and the Defendants had maliciously invaded this right of the Plaintiff and injured him by unlawful means and Defendants were therefore held liable. It was found that there was conspiracy and threats carried into execution by the Defendants to the injury of the Plaintiff, the object being not to serve any trade interests of their own, but to injure the Plaintiff, because he would not comply with their requisition to dismiss his innocent servants. It is true that the concerted action of a number of men has an element of aggravation, and is more irresistible than the unaided act of a single individual, and some of the cases support the view that a combination of several persons to do an unlawful act may be actionable when a similar act by an individual is not, but I do not think there is any authority for holding that a tort when committed by several persons acting in concert is different from the same tort committed by a single individual. A trespass is a trespass, whether it is committed by one person or by more, and so is a malicious prosecution or false imprisonment. The combination in such cases may be an element of aggravation in the assessment of damages, but does not to my mind suffice to make it a different tort. In the very case of Quinn v. Leathern, Lard Lindley said: “It was contended at the Bar that if what was done in this case had been done by one person only, his conduct would not have been actionable, and that the fact that what was done was effected by many acting in concert makes no difference. My Lords, one man without others behind him who would obey his orders could not have done what these Defendants did. One man exercising the same control over others as these Defendants had could have acted as they did, and if he had done so, I conceive that he would have committed a wrong towards the Plaintiff for which the Plaintiff could have maintained an action.”

In a similar case, Giblan v. National Amalgamated Labourers Union(13), Lord Justice Romer said: “I should be sorry to leave this case without observing that in my opinion it was not essential, in order for the Plaintiff to succeed, that he should establish a combination of two or more persons to do the acts complained of;” and Lord Justice Stirling said: “I am far from satisfied that they are not such as to be illegal, even if done by a single individual”. Read by the light of the facts, the case decides no more than this, that a number of persons who without justification intimidate a third person by threats of doing him harm and thereby coerce that third person into causing harm to the Plaintiff are guilty of an actionable wrong. Giblan's case shows that conspiracy or wrongful combination is not a material element in the constitution of the wrong. In this country the Legislature has made a general provision that suits for damages for false imprisonment or malicious prosecution must be brought within a certain period, and no distinction is made in respect of the number of persons by whom the wrong may have been perpetrated. If it were not so, the greatest uncertainty would be introduced into the law of limitation applicable to a particular case, for a Plaintiff might easily take his case out of the statute by charging more than one person with a wrong, and a Defendant would not know when he is secure against a charge. But supposing that conspiracy to perpetrate a wrong was a separate cause of action by itself it would not be actionable unless it caused special damage by itself. In the present case, however, the whole damage caused is by reason of the imprisonment and prosecution. The Plaintiff deposes that the imprisonment cost him Rs. 1,000 in law charges, and that is the only damage proved and decreed. The present case, therefore, considered as a suit for damages for wrongful confinement and malicious prosecution is barred by limitation under Acts. 19 and 23 of the first Schedule to the Limitation Act.

The next contention on this head is that the unlawful search of the Plaintiff's house on the 8th July, 1908 was pleaded as a separate cause of action and that at least is not barred by limitation. I am not quite sure that this was a part of the original case of the Plaintiff. It was not mentioned as one of the causes of action in the notice under sec. 80, Civil Procedure Code, and the main contention in the argument was that this was one of the overt acts in the conspiracy. Reading the plaint and the issues framed together, however, the contention is, I think, permissible, and if it is found that the search was unlawful or in any case amounted to a trespass, the Plaintiff may be entitled to some damages for the same. The issue framed in this connection was: (2) Did the Defendants, or any two of them in furtherance of such conspiracy, maliciously, wrongfully or illegally—

(a) search or cause a search to be made in Plaintiff's house on the 8th of July;

(b) trespass or cause a trespass to be made upon the premises of the Plaintiff.

The learned Judge has come to no finding on this part of issue No. 2, and I must find whether the Plaintiff has made out his case on this point. The gist of the case on this point is that the Defendants acting in concert and conspiracy with each other wrongfully and illegally caused a search to be made in the Plaintiff's house and Defendants Nos. 2 and 3 trespassed into the Plaintiff's house and conducted such pretended search. This is the statement in the plaint. In the evidence it was attempted to be made out that the Maulvi, Defendant No. 2, caused the bomb found in the Plaintiff's house to be prepared and induced Bonomali, a servant of the Plaintiff, to introduce the same into the house of the Plaintiff and knowing that the bomb had been so put in secured a search-warrant and made a search for a thing which he had himself caused to be introduced and for which there was no need for a search. If this were proved, it would certainly make out a good case against the Maulvi, and the other Defendants would also be liable if their complicity in the nefarious deed of the Maulvi were proved.

I shall first consider whether the Bonomali incident is true. Bonomali's evidence is that he was taken to the Maulvi by a constable named Kartic and on a subsequent date on the 7th July the Maulvi gave him the bomb for being placed in the house of Santosh and he did so place it in the boitakhana: that on the same day, the 8th of July, after the bomb had been found he was taken by a constable by train to Santragachi and left there to shift for himself. From there he went to Podra, where he served one Kali Babu for some time, and then returned to Midnapore in October. He met Ashu and was at once taken to a pleader and his statement taken. The evidence of this witness has been disbelieved, and I think rightly disbelieved, by the lower Court. Bonomali places his introduction to the Maulvi about three weeks before the 8th of July. That would be in the middle of June at a time when Kartic is shown to have been at Ramjibanpore. It is not made out that there was another Kartic who was transferred, and the Kartic examined as a witness and identified by Bonomali is not shown to have been at Midnapore about the time in question. The books produced from the Ramjibanpore thana and proved by police-officers from that place make it quite clear that Kartic was not absent from Ramjibanpore at or about the time when he is said to have conducted Bonomali to the Maulvi. His present evidence is that he was taken to Santragachi by the 1-30 p.m train on the 8th of July by a constable, who left him with an up-country man with whom he slept for the night. Before the Sessions Judge he could not name the station, whilst before Mr. N.K Ghose, Deputy Magistrate, he said he was set adrift at Howrah, where he slept in the night and went to Santragachi in the morning, following the railway line. Both these stories are specific, and one of them must be false. It is quite clear from his cross-examination in this Court that he has made various contradictory statements at various stages in the history of this litigation, and no reliance can be placed upon him.

Besides, important witnesses who could have corroborated him have not been examined. Rakhal Laha is said to have called him to the Maulvi on the 7th of July. Rakhal is not examined in this Court. The pleader to whom he was taken by Ashu and to whom he made a statement Immediately on his arrival back at Midnapore is not examined. Kishoripati Roy, the pleader to whom Kartic constable is said to have made a disclosure of this part of the story, is not examined in this Court. The mother of Bonomali is not examined. Jotindro or Jitendro, the nephew of Kali Babu who took him from Santragachi, is not examined. These witnesses could have thrown some light on this part of the case. Then, if the Police were bent upon keeping him away from Midnapore, they could have done so much more effectually than by setting him adrift at Howrah or Santragachi, whence he could easily find his way back to Midnapore. I am of opinion therefore that the Bonomali incident is not only not proved but false. The Plaintiff having made a specific case and given positive evidence to prove the same, I do not think the Plaintiff can ask us to make a different case for him. As the Plaintiff has failed to prove that the Police put the bomb in his house in the manner stated by his witness, he is not entitled to impeach the search as a pretended one. The search was made under a warrant from the Magistrate and conducted with all legal formalities, and resulted in the finding of the bomb which is not shown to have been introduced by the Police in the manner alleged. The case of illegal search and trespass therefore fails. I may add that Mr. Weston is not shown to have been aware of the search until after it had been made, and the approval admitted in the written statement must be read by the light of his evidence and understood as approval subsequent.

This I think is sufficient for the disposal of the case. My learned colleagues have, however, gone into and considered the other facts in the case, and it is but fair that I should express my opinion on some of the more important matters.

The bomb found in the house of Peary, Mohan is the central fact in this case. The history of this instrument of death will be found in the reports of the informer Bakhal Laha. Mr. Dutt has admitted before us that the reports are genuine, except that of the 7th of July which he says was written out subsequently. We must take it that these reports were made by Bakhal when they purport to have been made. Bakhal was appointed on or about the 20th of May 1908. His reports for the month of May were made directly to the Maulvi, who took them down in his confidential diary. That diary is not before us, as Government claimed a privilege in respect of the same. There is, however, exhibit SS, Bakhal's statement entered in the Crown brief for Bakhal's examination: there is also exhibit G prepared by head constable Asadullah from three or four note-books of Bakhal to serve as a connected narrative for helping Bakhal to give his evidence.

There was a search of Plaintiff's house on the 3rd of May at the instance of the Calcutta Criminal Investigation Department, and nothing incriminating was found. The informer gives an explanation that Santosh had written from Banchi to pre-warn his family, and all arms and weapons had been removed by a window into Jogendro Mullick's house. There is no evidence to show that Santosh could have had any intimation of the intended search which was to have been simultaneous with the Muraripukur search in Calcutta and actually took place the next day by a mere mischance. The explanation is evidently false.

On the 23rd May the informer went at noon to the first floor of Jamini's house and saw some strips of jute, sulphur and shots scattered there. Surendro said he would prepare a bomb and kill Lal Mohan, Maulvi and Mr. Weston as they had arrested Satyendro, Jogjiban and Sarat Dey for nothing, and that very evening Kisen Saha, Jotindronath Sen and Sachindra Mohan Sen would return from Calcutta after learning the art of manufacturing bombs. This was at noon. In the evening he went to the Plaintiff's house where he saw Kisen Saha, Jotin and Sachin. Suren came in with one seer of something like sulphur, two pounds of large shot and some strips of jute. I may note here that this part of the history of the bomb is not to be found in exhibit. On the 26th May he goes to the house of Kisen Saha and Kisen tells him that he had learnt to make bombs and had got jute and sulphur but no place as yet. On the 27th of May he again goes to Jamini Mullick, who shows him a letter from his nephew Kisto Prosad Dey about bombs: he takes the letter clandestinely to the Maulvi, who keeps a copy, and the letter is replaced by the informer. This copy of a letter, dated the 28th May is to be found in exbt. 56 under report, dated the 1st June, and speaks of 25 bombs as the surplus stock in hand, asks what those who had learnt bomb-making in Calcutta were doing, and promises to wait 2-3 days for a letter or man from Midnapore and then go away with them in any line. This was a very important piece of evidence; and supposing that the discrepancy in the date is due to some mistake somewhere, one would expect that the letter should be kept back, for it had been only stolen by the informer, and Jamini would not have known that Bakhal had purloined it; in any case one would expect an officer of the Criminal Investigation Department of the Maulvi's experience to keep a more reliable proof of its identity by keeping a photograph. Besides, the letter, if correctly copied, contains inconsistent language. The addressee, who is the uncle and saluted, is told instead of We do not see any search made for Kisto Prosad Dey and his 25 bombs or his factory; nor do we see any prosecution of Kisto Prosad. It is true he has not been examined in this case; but even if he had been, he could not be examined with reference to any original letter of his, for the original is not in, and was, I think, never in existence unless one purporting to be an original had been forged by the informer and passed off as a genuine one before the Maulvi. If Jamini's house had been searched at once, this important piece of evidence could have been spotted at once with the and of the informer and gone a great way to prove a bomb conspiracy at Midnapore.

On the 1st of June there was a meeting at the Rasmanch of the Mullicks, at which Babu Motilal Mukerjee made a stirring speech, and proposed to raise a subscription of Rs. 1,000 to Rs. 1,200 for preparing bombs. On the 2nd of June he goes to Jamini's, and Satkaripati Roy, Sub-Deputy Collector, is shown the letter of Kisto Prosad Dey and subscribes Rs. 25 to the fund for making bombs. On the 3rd of June Jamini tells him he had gone to Mr. K.B Dutt, who said Rs. 1,000 or Rs. 1,200 would not do, but Rs. 2,000 or Rs. 3,000 must be raised, and he would speak to the Raja of Narajole for a place. On the 4th June he goes to Jamini Mullick's. Jamini proposed to bring bombs from Kisto Prosad, but Purnanand Chatterjee said that if they could get a house they would prepare 1,500 to 2,000 bombs. Jamini also told the informer that he had been to Mr. K.B Dutt, and Mr. Dutt told him he had written to the Raja for a place.

On the 5th June Jamini sends him to inspect the Raja's house at Gope, and he found it suitable. Jamini told him he would find one-fourth of the Rs. 3,000 to be raised for bombs and he had sent for brass pipes for making bombs. On the 7th June one Satish Bhuttacharji comes from Calcutta and complains of want of money in Calcutta. Jamini tells him either bombs would be prepared at Midnapore or Rs. 2,000 to Rs. 3,000 will be sent. On the 8th June a bridal party comes from Calcutta, and one of the party advises Ashu to prepare bombs with cacoanut shells. The informer then gives a subscription list for making bombs, and Mr. K.B Dutt, the Bar Library, and several pleaders and others are shown as subscribers. On the 9th June another meeting in the house of Gopal Banerji, pleader, about bombs: on the 11th June another meeting at the house of the Raja of Mohisadal, in which speeches are made about bombs and a subscription list is prepared. Surendro Mukherji, Kissen Saha, Amulya Bose, Bibhu Dutt agree to prepare bombs. Baroda Dutt agrees to prepare picric acid. On the 14th he says Jamini had written to his nephew Kisto for electric wire. On the 16th June Debdas Karan admits his receipt of a sample bomb from Calcutta, after which bombs would have to be prepared at Midnapore. On the 17th June Surendro appears with a bomb in the house of Rajabala prostitute, places it upon two pillows and makes a speech. Then there is a meeting at the house of Kamini prostitute and speeches are made and witnesses are tutored by Moti Babu, pleader. On the 18th Suren Mukherji and Jotin go about with the bomb for killing Lal Mohun; on the 30th June at the house of Saroda Dutt, Rash Bihari comes with photos of bombs and dynamite, and Santosh and Suren come with the bomb. Suren gives it to Santosh. On the 3rd of July there is a meeting at Upendra Maity's and Santosh and Suren appear with the jute-wrapped article and Suren explains why he had kept it with Santosh. On the 7th of July the Raja of Narajole appears in a coach and pair to see the bomb and it is fetched and shewn to him and then taken back to the house of Santosh to be found on the search on the next day.

I agree with Mr. Justice Fletcher in thinking that the whole of this story about the genesis and the peregrinations of the bomb is a pure invention and entirely false.

Several subscription lists are spoken of; none of them has been found; photos of bomb and dynamite are spoken of; none has been traced; brass pipes, electric wire and picric acid are spoken of; not a vestige of any of these things has been detected anywhere in Midnapore. The Raja of Narajole is said to have paid large subscriptions for the preparation of bombs; his account books have been searched and nothing about bombs found. The Bar Library is said to have subscribed Rs. 400; the accounts of the Bar Library ought to have shown the disbursement, if any. The informer and his associates must have expected to find a connection between the Muraripukur band and some of the Midnapore people; picric acid, brass pipes, electric wire were therefore spoken of at random from the knowledge derived from the disclosures in the Alipore case. No such connection, however, could be established, and sulphur and jute are the ingredients resorted to and a bomb is produced which anybody could prepare with materials available in many villages for making throw-down bombs. The training of experts in Calcutta comes to no use.

The informer is an avowed drunkard; he is without any means and is more or less dependent on his uncle. Such a man is sought out for ruling the destinies, of the most respectable gentlemen of the town of Midnapore. Abdur Rahman says he was appointed for giving information about swadeshi and bombs, and if Rakhal had been examined he would most probably have said the same thing. That being the work for which he would have his Rs. 25 per mensem, be must find materials for a report, and as some swadeshi meetings did undoubtedly take place he wove into the story of some swadeshi meetings the story of a bomb. Although I have held that the Bonomali incident is false for reasons I have given, I cannot hold that the bomb came to be in the Plaintiff's house in the manner stated by the informer. Were the people of Midnapore mad? Otherwise why should a conspiracy to kill the officials or to overthrow the British Government be talked about at public meetings in all sorts of places at a time when the Military Police were parading the streets of the town and when some of the townsmen had been actually arrested for political offences. Drunkards are notorious for their inability to keep secrets; would drunkards be made partizans to conspiracies of such a heinous nature so that they might bruit it about in their drunken brawls? Are the houses of prostitutes the proper places for the consideration of ways and means? If the bomb was made by Suren it was made by him for a secret crime. Why should he produce it in a prostitute's house and publish it to a set of drunkards like Rakhal and Nikunja and to the prostitutes themselves? Could he be going about with the bomb in his hand at a time when the whole town was under a panic and the Police were going about and making searches and arrests? Are the pleaders, doctors and zemindars of Midnapore so depraved and, so devoid of the sense of propriety that they would hold a meeting of this sort in a prostitute's house? Are there no private houses of any of them suitable for such a meeting? But why are these meetings located in these places? These are places where Bakhal may easily be believed to have been; these places may be some of his familiar haunts. Then as regards the personnel of these meetings—men of education and position in society, men of light and leading in the Bar may well have joined swadeshi meetings and tried to support indigenous manufactures by all legal and legitimate means, and some of them may even have encouraged picketting in some form or other, but I cannot believe that they joined in a conspiracy to commit wholesale murders with bombs. Many of them are University men and are supposed to have some knowledge of history and some intelligence at least. I cannot believe that such men could under any circumstances believe that they could cope with the British Government with a few bazar bombs. To my mind these men have great stakes in the stability of the British Government. The earnings of the pleaders are the outcome of the British Courts; the earnings of the doctors are the outcome of the British system of medicine; the income of the zemindars is the outcome of the British Permanent Settlement. Their savings are mostly secured by Government Promissory Notes. They must know that the moment the British Government is gone and the protection of the law is withdrawn, all their belongings will be gone; why should they of all men join in such a conspiracy 1 As regards the Raja of Narajole, he was no doubt a staunch supporter of the swadeshi cause, and some of his charities may have been misplaced and in fact abused by the recipients as in the case of Hem Chandra Das, to whom he made a grant of Rs. 200 through the Industrial Education Society, but there is nothing reliable on the record upon which I can find that he was either disloyal or lawless and capable of doing what the informer says he did. The part of the story which implicates him seems to be simply puerile. One single bazar bomb of a larger size than usual has been prepared with the object of killing some officer and he comes in his coach and pair to the house of Jamini Mullick impatient for having a look at the strange production. To my mind it is simply absurd, and I have no reason to disbelieve his evidence.

Mr. K.B Dutta, the leading Barrister of Midnapore, the Chairman of the Midnapore Muncipality, the leading man in the town, must also be the leading spirit in this conspiracy. The fracas in the Midnapore Conference showed him out as a Moderate in politics, and even if he were an Extremist, I cannot believe that he would lend himself to such a silly and puerile venture in a heinous crime. It is a pity he has considered himself debarred by some supposed rule of professional etiquette from going into the witness-box to give the lie to the serious insinuations and charges that have been made against him, but I cannot believe that there is any truth in the allegations of the informer about him. It may not be out of place to mention that one of the defence witnesses named Aukhoy Pal has deposed to a document (exhibit 61) as a slip written by Mr. Dutt to one Permanand Saha for subscribing to a fund for bribing the said witness. Not satisfied with the assertion of Permanand that this was a chit from Mr. Dutt, the witness says he went over to Mr. Dutt's place and Mr. Dutt admitted to him that the chit was genuine. I have carefully compared this document with Ex. LXXXVIII, which is admittedly in the handwriting of Mr. Dutt, and I can find no resemblance either in the style of the handwriting or the formation of the letters, and I have no hesitation in holding that exhibit 61 is a forgery and Aukhoy Pal is a witness of falsehood.

If the reports concerning the bomb are false, then the confessions of Santosh and Suren are necessarily false, and if they are, bow did they come into existence?

It seems quite clear from the evidence that both the Police Defendants had almost unlimited access into the jail for questioning the accused Santosh as well as Suren, and I have no doubt that they used both threats and inducements for the procurement of the confessions, but did not succeed until immediately after the arrest and imprisonment of the old and suffering father of Santosh. This to my mind was the last turn of the screw and the poor son could not hold out any longer. It is true the confessions do not tally exactly with the reports in their details, but the main story—the story of the Bomb—is identical, and that was all that was wanted. The evidence, however, about the manner in which these confessions were recorded is evidently exaggerated and embellished with falsehoods. For instance, I do not believe that Mr. Weston put from the informer's reports questions in the leading form to which the deponents had to say yes: it is admitted that he suggested some questions and to some suggested questions answers were given before the recording Magistrate re-put the questions, and this was exaggerated into the evidence that we have that every question was put by Mr. Weston as stated above in a leading form.

I have also no doubt that the arrest and imprisonment of the Plaintiff had a decisive effect upon Santosh, and the implication of Suren by Santosh had a decisive effect upon Surendro. The next question that I shall deal with is whether Peary Mohan was arrested and imprisoned not bonâ fide but with the indirect object of inducing Santosh to make a confession.

I agree with Mr. Justice Fletcher that Mr. Weston believed in the story of the informer. This story contained no charge of complicity against Peary, and it does not appear that there was at first any intention on the part of the authorities to proceed against Peary. It is quite clear that Peary had several interviews with Santosh in jail and also several interviews with Mr. Weston. The point in issue with regard to these interviews with Mr. Weston is whether Mr. Weston threatened Peary with arrest and imprisonment unless he could induce his son to make a confession. It is admitted that Mr. Weston told him that if his son was guilty the best thing for him would be to make a clean breast of the whole affair. If Mr. Weston believed the case against Santosh to be true, as I think he did, he would be quite within his rights in giving such an advice, although it would have been better if he had not given any. I cannot believe that Mr. Weston would threaten Peary with arrest unless he succeeded in getting a false confession from his innocent son, and I do not believe that he did threaten Peary with arrest unless he succeeded in getting a true confession from his guilty son. Mr. Weston as a Civilian of experience must be expected to have known that any threat or any inducement used for extracting a confession would nullify the confession. As a respectable gentleman of position also he would not demean himself by acting in the manner suggested. I think Peary misunderstood Mr. Weston and has exaggerated the circumstances of the interviews and the conversations held therein. One of the most important factors in the Plaintiff's case is the delay in the arrest of Peary. Mr. Dutt said that he, would have had nothing to say if Peary had been arrested on the 8th July, i.e, as soon as the bomb was found in his house. The explanation of Mr. Weston is that he found fault with the Police at once, but awaited the report of the Chemical Examiner, of which the demi-official intimation was received on the 20th July, and as the 23rd July was the date fixed for the case against Santosh he waited till the 23rd. Against this it is said that the contents of the bomb were known to be dangerous on the 9th of July from the opinion of Major Weinman, and the police-officers throughout insisted on the dangerous character of the thing. Even on the 11th of July the Maulvi in his application to the Magistrate for an interview with Santosh says “it has been found to contain explosives and shorts”. On the same day, the 11th of July, the Chemical Examiner sends his demi-official report to Mr. Plowden, and on the 17th July Mr. Denham says “Copy forwarded to Mr. Cornish,” and this document is endorsed as received by the Maulvi on the 20th July at 6-30 P.M On the 16th of July Mr. Cornish sends a reminder to the Criminal Investigation Department office and Mr. Denham signs it on the 17th with a remark “Sent”. It is not quite clear when it was posted: there is no evidence as to that, and for all that we know the actual posting may have been delayed. There is not sufficient reason therefore for holding that Maulvi's entry of “received” on the 20th is a false entry. Mr. Cornish says he sent information at once and Mr. Weston may have received this late in the evening on the 20th. There is a chit of Mr. Weston, Ex. H., dated the 20th July asking Peary to come and see him on Wednesday (the 22nd July) and not on Tuesday “as arranged”. Mr. Weston says he wrote this before he received the Chemical Examiner's demi-official. This is very likely the case, as Mr. Weston could not have received it until after evening. Then the question remains whether there was an interview on the 22nd of July. Mr. Weston admits that the visit of the 21st was fixed at 7 p.m, an unusual hour for enabling Peary to see his son before that time. Peary admits that he did not see Mr. Weston at 9 p.m on the 22nd, as he had failed to induce Santosh to confess, but he says he saw Mr. Weston in the evening. The history ticket of Santosh shows that Peary had interviews with him both on the 21st and the 22nd. Now 22nd was a Wednesday on which Peary had a general order to see his son: the interview of the 21st must therefore have been under a special order. I have no doubt that his interview of the 21st was to ascertain whether Santosh was going to make a statement. Then the question is, did Peary see Mr. Weston on the 22nd as he says he did? Mir. Weston denies that this interview took place and he is positive that he did not grant any interview to Peary after he received the demi-official of the Chemical Examiner. I am not quite sure as to whether there is not some mistake in respect of this interview. Even, however, if he did grant an interview on the 22nd for ascertaining whether Santosh was going to make a true confession, that would not defeat his case that the arrest of Peary was bonâ fide, for according to his case the arrest had been determined upon to take place on the date fixed. It may be that so long as there was any reasonable chance of getting a confession from Santosh Mr. Weston was not inclined to prosecute Peary for having the bomb in his house. The evidence against Santosh was extremely frail, and there was then hardly any chance of a conviction; but there was a primâ facie case against Peary; the bomb had been found in his house and he was bound to explain how it came to be there. This at least in the view that the authorities took of the law which had been only recently passed. There is evidence that Mr. Plowden had found fault with Lal Mohun for not arresting Peary, and so had Mr. Weston on the 8th of July after the arrest of Santosh. Although the confession of Santosh followed very soon after the arrest of his father and must have been to a very great extent induced by the same, it does not necessarily follow that the arrest of the father was purposely made for inducing that result and not for vindicating the law. In any case it is I think a sound principle of law that in the absence of proof to the contrary credit should be given to public officers who have acted primâ facie within the limits of their authority for having done so with honesty and discretion, and I do not think there is in this case any proof to the contrary. The coincidence of the confession following close upon the arrest may no doubt raise a suspicion, but suspicion is not proof. I think therefore that on the whole no case has been made out against Mr. Weston, who acted under circumstances of great difficulty. At a time when a political party with revolutionary ideas was believed to exist in the town; at a time when his very life and the lives of his subordinates were threatened, at least according to reports which he believed; at a time when outrages had been attempted or committed in several other places upon public officials by members of the anarchist party, some of them young men from Midnapore, he cannot be blamed for believing his subordinates, the police-officers, and the reports procured by them and acting upon them.

The case for the Plaintiff in the Court below was that the reports were invented and concocted by the Police in support of a false case they contemplated making against the gentry of Midnapore and was signed by Rakhal in one day. Mr. Dutt has abandoned that theory, and his case before us is that the reports were genuine except that of the 7th July which was subsequently put down. I am not satisfied that the report of the 7th July was not in existence on the 7th July. The search warrant was obtained upon some information of the kind and on the 11th July the Police Defendants are said to have tutored Santosh from the reports. If the reports are genuine, i.e, were made by the informers appointed by the Police but were false reports, the Defendants are not responsible for them. But did they believe the reports? The, lower Court has found that they did not, principally on two grounds, first, that the reports were primâ facie incredible and no man of intelligence and experience could have believed them; and, secondly, that the Defendants adduced false evidence in support of the reports. As regards the first point, I have myself held that the reports were incredible and false as to the main incidents, but I have looked upon the facts from a distance of time and space under circumstances quite different from those in which the Defendants acted. It was a time of great commotion; there was the Naraingarh outrage in December 1907: there was the political fracas in the Midnapore Conference about the same time: there was the Mozufferpur outrage in April 1908 by a Midnapore man, and immediately afterwards the Muraripukur Bomb Factory was unearthed, and a gang of anarchists, some of whom were intimately connected with Midnapore, were arrested: there was the Midnapore local paper preaching sedition of the worst kind: there were anonymous letters threatening Mr. Weston with assassination: there were undoubted cases of picketting and rioting in support of the swadeshi propaganda: Midnapore figured conspicuous as a most suspected spot: these circumstances naturally alarmed the executive authorities and extraordinary precautions were taken. Military Police paraded the streets of the town, and the Maulvi was sent by the Criminal Investigation Department as a special officer for investigating the situation. He sought for informers and obtained two—Abdur Rahman and Rakhal. These naturally were found amongst men of a low standard of morality, and they made their best to deserve their Rs. 25 a month from the secret service fund. The Maulvi wanted them to report about swadeshi and bombs and they supplied such reports. Did he believe all these reports? It is difficult to say that he did at the outset at least; for although he went on making his confidential reports to his superiors he did not take any action until the 7th of July, when he was assured that a real bomb was to be found in the house of the Plaintiff. A search was made and a bomb was found. Accepting as I must the case of Mr. Dutt before us that the reports were genuine and not concocted to suit a case in the process of fabrication, the Maulvi cannot be blamed for taking the reports thenceforward as a basis to work upon. There were no doubt circumstances in the reports which could be verified at once as the reports were made, but the inaction may have been due to uncertainty. In working out the case, however, he acted in a manner which has exposed him and his subordinate Inspector Lal Mohun to severe criticism. I have held that they induced Santosh and Suren to make the confessions which they afterwards retracted, and I have no doubt upon the evidence that they used all means of persuasion and threat for attaining their end. It is clear also that some of the documents were altered for making out a consistent case. For instance, Ex. 56 was altered to suit the confession of Suren and exhibit SS to suit Ex. 56. Ex. 61, an alleged chit from Mr. Dutt produced by Aukhoy Pal, was supported by the evidence of Aukhoy Pal, and I have held Ex. 61 to be a forgery and Aukhoy Pal a false witness. The other witnesses examined in support of the reports are more or less insignificant and unreliable. I generally agree with Mr. Justice Fletcher as to the credit to be allowed to these witnesses. The letter from Krishna Prosad Dey said to have been copied into Ex. 56 by the Maulvi also. I have held to be a copy of a false document. The bomb formula, Ex. IX, could not have ??? obtained in the manner stated by Abdur Rahman: in the first place, the formula had already appeared in the Jugantar paper which used to be sold in Midnapore, and in the second place, the technical terms used in the document could not have been written, from dictation by a man of Abdur Rahman's education in letters. These circumstances no doubt throw discredit on the Police Defendants who are responsible for the same, but it does not necessarily follow that they did these things because they wanted to prove a false case to be true. We know of false evidence being given to support a true case when missing links have to be supplied. I cannot therefore positively find that they knew the reports to be false.

The arrest of the Plaintiff was, however, under the orders of Mr. Weston, which they were bound to obey. As the order for arrest was upon the findings within the jurisdiction and authority of Mr. Weston, the case against them also fails.

There is a side issue as to whether Mr. Dutt ought to have appeared as a witness in the case and not as Counsel. I think he ought to have appeared as a witness. He could have thrown light on many parts of the case in which we have had to grope in the dark. I think the case of the Plaintiff on the facts has suffered materially by reason of his absence from the witness-box, whilst he himself has been made the subject of repeated attacks without any means of adequately answering them. I think he has been sadly misadvised in this matter. There was a reference to the English Bar Council by the legal advisers of the Appellants and an, opinion obtained which will be found in page xlvi, 16 Calcutta Weekly Notes. This, I have no doubt, is no authority for the Court and was allowed to be read only with the consent of Mr. Dutt. The opinion of the Council is against Mr. Dutt. The opinion of the Privy Council in the case of Victor Corea v. Perns also seems to support the same view. There the Respondent tendered his own Counsel as a witness and the District Judge refused to admit his evidence. The Supreme Court of Ceylon on appeal bad him examined and the Privy Council say as to this: “He was tendered as a witness for the Respondent at the trial, but the District Judge ruled, on some quite unsustainable ground, that being the Respondent's advocate his evidence was inadmissible. The Supreme Court most properly, in their Lordships' opinion, permitted him to be examined”. It is a pity therefore, I repeat, that he considered himself debarred by any rule of professional ethics from giving his evidence in the case.

Complaint has also been made that some of his questions in cross-examination were without justification. It may be that his own personal knowledge of the facts supplemented his instructions in these matters, but that is the more a reason why he should have given his evidence under the sanction of an oath and subject to the test of cross-examination. The suggestions made, however, have been, abandoned.

I have had the advantage of going through the elaborate, judgment of Mr. Justice Woodroffe, and I regret that some of my conclusions are at variance with his, but after a most anxious consideration of the case I could not persuade myself to come to any other conclusion. In arriving at these conclusions I have not overlooked the discrepancies in the evidence, but given prominence to the general tenor of the same. I have also borne in mind that mofussil witnesses were examined and cross-examined under extraordinary surroundings in this august tribunal in its Original Side. I respectfully differ from Mr. Justice Woodroffe in my appreciation of the evidence of the pleader witnesses, especially Babu Upendra Nath Maity, the leader of the Midnapore Bar. They are pleaders of position, and it is not probable that they would deliberately give false evidence. They may have made mistakes from lapse of memory, but I cannot hold that they have told deliberate falsehoods. Maity has made an evident error in respect of a date, and Peary has made some confusion about the circumstances relating to the petition of the 31st of August. But that does not mark them out as false witnesses. It is a pity, I repeat against, that Mr. Dutt did not come to the box, as he was the only man who could have thrown any definite light on the point. But we have not also got the Court Inspector, the custodian of the records. The records disclose several petitions on which stamps were not punched or orders passed on the dates they were filed, and I am not prepared to hold that this petition was smuggled into the record. A petition was admittedly made for bail, and this is the only petition for Santosh which asks for bail. Mr. P.K Bose says that Mr. Dutt said he wanted to make some important petitions and therefore wanted the prisoners to sign the petition: a mere bail petition is not such an important petition: it is usually done by the pleader or mukhtear signing for the prisoner. I agree with Mr. Justice Fletcher that there was some misunderstanding about this petition.

The result is that although upon the findings I have arrived at the Plaintiff was innocent of the bomb and has suffered in various ways, his suit must be dismissed and the Appeal is allowed with costs.

Messrs Orr, Dignam & Co., Solicitors, for the Appellants.

Mr. J.C Dutt, Solicitor, for the Respondent.

Appeal allowed.