JUDGMENT Thoms, J.
1. The appellant Manabendra Nath Roy was tried in the Court of Session at Cawnpore on a charge under Section 121-A, Penal Code. He was convicted by the Additional Sessions Judge and sentenced to transportation for 12 years. The charge preferred against him was that on or about 9th May 1923 and before and after, that is to say, from the beginning of 1921 to the end of 1924 he formed a conspiracy and conspired to deprive the King-Emperor of his Sovereignty of British India by means of violent revolution. The case for the prosecution against the appellant is that between the years 1921 and 1924, in co-operation with a number of other persons in India, the appellant who was in Europe, resolved to embark upon an attempt to introduce the doctrine of communism into India, the final objective of the conspirators being to set up a communist state in India a state which would be controlled by the workers and peasants. The institution of such a communist regime was to be preceded by the violent overthrow of the existing constitution in India and the destruction of the sovereignty of the King-Emperor.
2. The means by which the appellant and his fellow conspirators attempted to compass their aims was to unite into one organisation the extremist elements in India, revolutionaries, terrorists, the left wing of congress, labour unions, etc. This organisation was to be utilised for the purpose of promoting a revolution in which the masses of peasants and workers were to be the troops and chosen communists, the officers, the masses, were to be won by promises to economic betterment; strikes were to be engineered and if possible riots and the like such as occurred at Chauri Chaura, among the Mohplas and in the Punjab. Revolutionaries and terrorists were also to be enlisted by promises. With this aim in view, the appellant got in touch with his fellow conspirators in India, when exactly, is uncertain, but it is clear that the period of the conspiracy was from 1921 to 1924. During these years the appellant was acting in conjunction with his friends in India in endeavouring to prepare the way for the violent overthrow of the Government of. India. He was unable to come himself to India where he feared arrest. It was therefore necessary that he should make use of the post to get in touch with his fellow conspirators and during the years 1921 to 1923 therefore numerous letters passed between the appellant and his fellow conspirators. This correspondence did not escape the vigilance of the Intelligence Service of the Government of India. Numerous letters from the appellant to his fellow conspirators and from his fellow conspirators to the appellant were intercepted, some were retained by the authorities, others were copied or photographed and re-posted to the addressees.
3. By the early part of the year 1923 the Government authorities came to the conclusion that from these letters and other documents, some of which accompanied, these letters, it was clear that the appellant in conjunction with a number of persons in India was engaged in a conspiracy to deprive the King-Emperor of his Sovereignty of British India. The conspirators in India, namely, Nalini Bhushan Das Gupta alias Nalini Kumar Gupta, Mohammad Shaukat Usmani, Muzaffar Ahmad and Shripat Amrit Dange were arrested and charged under Section 121-A, Penal Code. They were tried, convicted and sentenced to four years' rigorous imprisonment on 20th May 1924, their convictions and sentences were upheld on appeal. In the year 1923 the appellant was not in India and so no proceedings were taken against him. In the year 1931, the appellant returned to India and he was arrested in Bombay on 21st July of that year 'on the original warrant of 1924. In August 1931, proceedings were instituted against him under the 1924 complaint. On 24th August 1931 sanction was given by the Government authorising a Deputy Superintendent of the Intelligence Department to file a complaint against the appellant in the Magistrate's Court at Cawnpore. On 27th August 1931 a complaint was filed. On 15th October 1931 the appellant was committed by the Magistrate to Sessions. On 9th January 1932 the appellant was convicted and sentenced to transportation for 12 years.
4. The evidence upon which his conviction was based was almost entirely documentary. Apart from the evidence of the Government Examiner of questioned documents and of P. W. 23, who identified the accused as Narendra Nath Bhattacharji and of P.W. 20, the witnesses are purely formal and were produced to prove how the documents came into the hands of the police or before the Court. The documentary evidence against the appellant was the same as in the 1924 trial. This evidence consisted of (a) letters from the appellant to his associates in India and letters from them to him. These are the original letters which were intercepted and retained or found in the possession of the appellant's associates when they were arrested, (b) Copies of letters which were intercepted and either copied or photographed and re-posted (c) Pamphlets, leaflets and other publications which accompanied the letters or were obtained from other sources. Before discussing the evidence it will be convenient at this stage to refer to certain legal points raised by counsel for the appellant. learned Counsel for the appellant argued in the first place that the whole proceedings against the appellant were void inasmuch as the Sessions Court at Cawnpore had no jurisdiction to try the appellant. He maintained that Exs. 53 and 40 which were found in possession of Shaukat Usmani at the time of his arrest in Cawnpore did not establish that any part of the offence of conspiracy was committed in Cawnpore and that therefore the Sessions Court at Cawnpore had no jurisdiction.
5. Ex. 53 is a copy of a letter from Shaukat Usmani to the appellant. It is headed "Cawnpore" and dated 1st February 1933. learned Counsel for the appellant has argued that there is no evidence that the original letter was in the hand-writing of Shaukat Usmani. Ex. 40 is a letter addressed by Shaukat Usmani to the appellant. It is dated 10th of May 1923, that is the day after Shaukat Usmani himself was arrested. It is headed "Cawnpore" but the learned Counsel has argued that this is not sufficient proof that it was written there. On a consideration of the other evidence in this case there can be no doubt that Ex. 53 is a copy of a letter which was sent by Usmani to the appellant from Cawnpore, and that Ex. 40 was written in Cawnpore. Apart however from Exs. 53 and 40 there is other evidence that Cawnpore was one of the centres of the conspiracy. Ex. 10 for example which is a letter from the appellant Usmani refers to the fact that there are 5 centres in India which are to be linked up and one is the United Provinces. Ex. 46 is another letter from the appellant to Usmani. It refers to a previous correspondence and mentions that the writer is sending £ 25 to Usmani's Cawnpore address (Laiq) for travelling expenses.
6. As already mentioned Usmani was arrested in Cawnpore. There can be no doubt whatever from the correspondence and other facts which have been proved that Cawnpore was one. of the centres of the conspiracy and that Usmani frequently corresponded with the appellant from Cawnpore and that the appellant addressed letters to Usmani in Cawnpore. The plea therefore that the Sessions Court at Cawnpore had no jurisdiction to try the appellant is without substance. learned Counsel for the appellant has argued that under Section 188 of the Criminal Procedure Code the appellant could have been tried in Bombay where he was arrested. There is no substance in this contention. Section 188, Criminal Procedure Code, refers to crimes committed be yond the limits of British India. The present proceedings relate to an offence committed in British India. It may be further observed that the trial of the other conspirators of 1924 was held in Cawnpore and their convictions and sentences were upheld by a Bench of this Court.
7. In the second place learned Counsel for the appellant has contended that the conviction and the sentence of the appellant are vitiated by the fact that the charge upon which he was tried was vague in respect that it did not contain the names of the fellow conspirators. There is no force in this objection. Under Sections 221 and 222, Criminal Procedure Code, there is no duty on the prosecution to mention fellow conspirators by name in such a charge. Furthermore, the appellant knew perfectly well who his fellow conspirators were; their names are mentioned in the complaint; and it cannot seriously be contended that he suffered any prejudice from the fact that their names were not mentioned in the charge. Certain letters from the appellant were in type. The hand-writing expert who gave evidence in the Sessions Court for the prosecution pointed out that three typewriters were used in the typing of these letters and he drew attention to the fact that from the typed work it was clear that there were certain defects in these typewriters and that this was evidence that the letters emanated from the same source. learned Counsel for the appellant has argued that inasmuch as Section 45, Evidence Act, makes no reference to type-writers the expert evidence on type-written documents was inadmissible. It is true that Section 45 makes no reference to type-writers but evidence as to the fact that the typewriters used in the typing of the various Exhibits have certain defects which are clear from the typing of these Exhibits is evidence of the fact which can be competently given by an expert who has had an opportunity of examining the documents. The Court is entitled to draw its own conclusion as to the source and authorship of the documents from the whole evidence in the case and is entitled to take into consideration the fact spoken to by an expert witness that there were certain pecularities in the typing of the. documents resulting from defects of the machines by which the documents were typed. It may be observed here that apart from the evidence of the expert as to the defects in the typewriters there is intrinsic evidence in the correspondence itself to establish the fact of the source and authorship of these documents.
8. I may note here in reference to another submission by learned Counsel for the appellant that a conviction should not be based upon the hand-writing expert's evidence alone and that the document's which constitutes the bulk of the evidence in this case depend for their value as adminicles of evidence not merely on the unsupported testimony of an hand-writing expert. A careful consideration of various letters shows clearly that they form part of a connected correspondence. There are numerous references in the letters of the appellant to statements in the letter of his associates and to the statements of the appellant in the letters of the associates to the appellant. It is unnecessary to refer to these cross references here. The learned Sessions Judge has dealt with this matter exhaustively in the course of his judgment.
9. Certain letters of the appellant which were produced as evidence were written in Bengali. learned Counsel for the appellant has argued that so far as these letters are concerned the evidence of the hand-writing expert is inadmissible. This contention cannot be maintained. The hand-writing expert in the course of his evidence gives reasons why he concludes that these letters in Bengali are in the hand-writing of the appellant. He notes the peculiarities of the accused's hand-writing when he writes in English and he points out that these peculiarities are evidenced in his hand-writing in Bengali. It does not appear improbable that such peculiarities should be detected in both types of writing and there is no reason for refusing to accept the evidence of the expert on this point. In any event this is a matter which should have been made the subject of cross examination of the hand-writing expert. A reference to the proceedings shows that there was no cross-examination on this point at all. Further apart from the evidence of the hand-writing expert there is intrinsic evidence that these letters form part of a correspondence between the appellant and his conspirators in India. So far as the manuscript letters of the appellant are concerned the hand-writing of these was compared with the proved hand-writing of the appellant in letters which he wrote from his prison after his arrest.
10. learned Counsel for the appellant took a further objection to the copies of the letters from the appellant to his co-conspirators which were intercepted and re-posted being admitted as evidence. He maintained that these copies were inadmissible except upon proof that the addressees had been called upon to produce the original. I am of the opinion that the copies referred to were clearly admissible in evidence. The addressees to whom the original letters were re-posted were the appellant's associates in the conspiracy and it is absurid to suggest that the prosecution should have gone through the formalities of making a formal application to his associates to produce the original letters in order that they might be used as evidence against the appellant. Apart from this however under Section 65, Evidence Act, secondary evidence such as copies of letters may be accepted when the originals have been destroyed or lost. Considering the fact that the addressees of these letters were arrested and tried in 1924 and the letters referred to which would have been strong evidence against them were not found in their possession, it is reasonable to assume that these letters have long since been destroyed.
11. learned Counsel, for the appellant complained that the entire correspondence which had fallen into the hands of the Intelligence Department had not been produced. The prosecution however have only produced that part of the correspondence which was relevant and necessary to establish the charge against the appellant. No doubt many letters were intercepted by the authorities which would have been quite irrelevant and I do not see that exception can be taken to the fact that the prosecution did not produce all the correspondence. In any event the defence could have called for the production of these letters if it had considered that they would have been helpful.
12. In the result we regard to the objections which the learned Counsel for the appellant has taken in limine I hold: (1) that the Sessions Court at Cawnpore had jurisdiction to try the appellant, (2) that he was legally committed and tried on a proper and regular charge under Section 121-A, Penal Code, and (3) that he has been convicted upon the evidence which was relevant and competent. I now proceed to consider whether that evidence is sufficient to warrant the conviction of the appellant on the charge preferred against him.
13. The evidence consisted mainly of (1) Letters from the appellant to his fellow conspirators on India (2) letters to the appellant from his fellow conspirators and (3) certain pamphlets and leaflets. These letters include: (a) "One Year of Non-Co-operation" by the appellant and Evelyn Roy (b) "India in Transition" by the appellant (c) "What do we want" by the appellant and (d) "India's Problem and its Solution" by the appellant. Apart from the general attack made by learned Counsel for the appellant upon the admissibility of part of the evidence it was not disputed that the appellant: was the person called N.M. Roy, who wrote various letters attributed to him and who was the author of the above-mentioned works. In the course of his judgment the learned Sessions Judge has summarised the evidence led before him which establishes the identity of the appellant as the author of these letters and works. I need not recapitulate that evidence here. Suffice it to say that it leaves no shadow of doubt that the appellant is the author of these letters and works.
14. It is neither expedient nor necessary in this judgment on appeal to refer in detail to every one of the Exhibits produced by the prosecution in the Sessions Court. These Exhibits have been carefully considered and analysed in the judgment of the learned Additional Sessions Judge. I propose however to refer to a few of the more important documents which illustrate the character of the correspondence between the appellant and his fellow conspirators and the nature of the enterprise in which they were engaged. It may be noted here that letters from the appellant to his fellow conspirators were not always directed to the same addresses. It is obvious that the conspirators wished to keep their correspondence secret and the appellant's associates in India had a number' of accommodation addresses to which their letters were sent. That these accommodation addresses were addresses of the associates of the appellant has been satisfactorily proved by the evidence in the Sessions Court.
15. Exhibit 29. This is a hand-written letter in English by the appellant to Dange with Ex. 29-B an advertisement of the appellant's book "India in Transition." It was in an envelope, 29-A, addressed in type to Dange in Bombay. This letter was written on a note paper with a printed heading "Not the Masses for Revolution-But Revolution for the Masses: The Vanguard of Indian Independence-A journal of Revolutionary Politics, Berlin, Paris, London, Zurich, Rome." The "Vanguard" was a periodical published in Europe for which the appellant was responsible. This letter Ex. 29 congratulates Dange on his paper the "Socialist." It refers to a previous correspondence from the appellant to Dange " through different channels" and hopes that the "message already sent will be responded to satisfactorily." This is a reference as is clear from the other letters, to an invitation to Dange to attend a meeting of the communist International in Europe.
16. The letter refers further to the advertisement of "India in Transition" the authorship of which the appellant admitted in the Sessions Court. This book was printed in 1922 in Geneva and reference shall be made to it later. Ex. 5 is a letter from the appellant to Dange. It is dated 2nd November and it is written from Moscow where it is proved the appellant attended a meeting of the Communist International. The appellant refers to the meeting of the Congress and states:
The Congress is wall on the way. Delegates from almost all the countries are here, even far off Java is not excepted....I am in charge of the Eastern Section of the Congress, but there is no Indian delegation....We are having numerous preliminary conferences on the Eastern question which is one of the principal points of the Agenda. It is only here that one can get a true perspective not only on the working class movement in the West, but also on the revolutionary movement in the Eastern subject countries. It is too bad that our movement, which is the most powerful of the Colonial National Movements, should remain so isolated.... We were all very glad to know of the formation of the Socialist Labour Party....The question of forming a new party to assume the leadership of the Indian movement has been very much discussed here....I take it for granted that the Socialist Labour Party of India understands the necessity of International affiliation and believes that the Communist International is the only revolutionary International body. Therefore I am sure that you will like to know the attitude of the Communist International towards the Indian movement at the present stage. In consonance with the point of view of the Communist International I make the following propositions about the role the Socialist Labour Party of India should play....All Communists and Socialists should attempt to form a mass party embracing all the truly revolutionary element. In order that many available revolutionary elements are not frightened away by the nanus our party should have a "non offensive" name. We suggest "the peoples party." Of course, the social basis of this party will be the workers and peasants and the political direction of the party should be in the hand of the Communists and Socialists who alone can be the custodians of the interest of the toiling masses. But in order that the Communists and Socialists are not isolated in small sects and can take active and leading part in the mass struggle determining its course and destinies by revolutionary and courageous leadership, a legal apparatus of our activities is needed. The peoples party will provide this legal apparatus. It is to be anticipated that no powerful political party with a Communist name will be tolerated by the Government and the latter will be able to count upon the moral and even active support of the native bourgeoisie in prosecuting a Communist party. Hence the necessity of a dual organisation-one legal and another illegal. The Communist nucleus should take a very active part in the formation of a mass party for revolutionary nationalist struggle....
I have already written a pamphlet containing a popularized version of the programme we intend to put forward (This reference is to the pamphlet entitled "What do we want").
17. Exhibits 6, 7 and 8. These are three letters by the appellant from, Berlin to Singaravelu, Dange and Muzaffar Ahmad. These letters refer to the fact that the writer has returned from Moscow and to the project of holding a conference in Europe. In his letter to Singaravelu the appellant states:
We must prepare for the conference which is very important, Your presence will be greatly appreciated. The delegates should reach here not later than the end of January.
18. Each of these letters included a pamphlet Ex. 9 which the writer requests his associates to have published in Indian papers. In his letter to Dange, he is also invited to a conference in the month of January. In his letter Ex. 8 to Muzaffar Ahmad, the appellant refers to the fact that he had expected that Muzaffar Ahmad must have started for Europe but that he had heard that he had not done so owing to lack of money. The writer promises financial help and states that it is urgently necessary that Muzaffar Ahmad should come to Europe for the purpose of the conference. He asks Muzaffar Ahmad to bring 2 or 3 delegates from Bengal It is necessary that they should be such men as are willing to walk our way and yet have influence in agitation.
19. Muzaffar Ahmad is also requested to secure the publication of Ex. 9 and a reference is made to the new organ of the "Khansama's Union" which is regarded as most helpful.
20. Exhibit 9 which accompanied these letters is headed "To the All India National Congress, Gaya, India" and it concludes:
With fraternal greetings Presidium of the Fourth Congress of the Communist International Secretary Humbert Droz.
21. This letter was apparently drawn up as a result of discussions at the meeting of the Communist International at Moscow which was attended by the appellant and it is proved that the appellant was himself elected to the Presidium of the Communist International. This letter is an inflammatory document and is a plain definite and frank incitement to revolution. It states:
The infamous methods by which British Imperialism sucks the life blood of the Indian people are well-known. They cannot be condemned too strongly; nor will simple condemnation be of any practical value. British rule in India was established by force and is maintained by force; therefore it can and will be 'overthrown only by a violent revolution....The people of India must adopt violent means, without which the foreign domination based upon violence cannot be ended. The people of India are engaged in this great revolutionary struggle. The Communist International is whole heartedly with them. The goal of Revolutionary Nationalism....
Therefore in order to declare its complete freedom from all connexion with the reactionary upper classes, the National Congress should categorically declare that its political programme is the establishment of a Democratic Republic, completely independent of any foreign control....Tireless and courageous agitation has to be carried on to win the masses for the cause of national liberation. The present spontaneous mass upheaval provides a very fertile field of propaganda. The necessity of developing the revolutionary consciousness of the masses demands the adoption of an economic programme, in addition to the political programme of a republic to be established through a revolution. By leading the rebellious poor peasantry against the reactionary and loyalist landed aristocracy, the Congress will on the one hand strike its roots deeply into the masses and on the other, will assail the very bedrock of British rule. The native army which maintains British domination in India, is recruited from among the poor peasantry. So a programme of agrarian revolution will win the native troops to the cause of national freedom. In conclusion we express our confidence in the ultimate success of your cause which is the destruction of British Imperialism by the revolutionary might of the masses. Let me assure you again of the support and co-operation of the advanced proletariat of the world in this historic struggle of the Indian people. Down with British Imperialism; Long Live the free people of India.
22. It is quite unnecessary to further comment upon this letter. It speaks for itself. The fact that it was forwarded by the appellant who was a member of the body in whose name it was sent to his associates in India with the instructions that they should have it published in local news-papers is proof, decisive and conclusive that he and they did jointly engage in a conspiracy which had for its object stirring up of a revolution and the destruction of the existing Government in India. Ex. 43-This is a letter from Shaukat Usmani to the appellant. It refers to the papers which were sent by the appellant in his letter of 12th December. The letter states:
Much has been done by these papers; they gave and are still giving strong doses of communism to the younger section of the Congress leaders. That done-but there remains immense-to be done. The masses have just smelt the odour of communism....Even if the Communist; International helps the workers and peasants organisations must have their own funds; contributed two pice per rupee of their wages for their social and economic emancipation. But this cannot be possible unless we have presented before them some model; and have a sufficient number of good organizers. So far as legal work is concerned these funds will be more than sufficient but for the conduction of illegal activities something more is needed. Students cannot be trained without finance.... However small our party be but it must be pure, composed of tested Communists.
23. The writer further gives the appellant a number of addresses to which the paper, The Advance Guard, should be sent. This is clear indication that the writer and the appellant were jointly engaged in an attempt to set up a communist regime in India. Ex. 45-This is a letter from the appellant to Usmani. It is written on Vanguard news-paper. It begins:
Your letters about the Congress are received. They are very good and you will see that we have made use of it. So, it may be now clear to you that no personal influence enters into the relations between true revolutionaries. The literature asked by you has been sent and more will be sent gradually. In my last letters instructions about the work have been given....The first stage of propaganda has been done and done in a way we have reason to be satisfied with. We have entered the organization period. In every province our groups should be organized not people with "sympathetic" attitude but convinced workers are needed. We must begin to build our party which must take the field as soon as enough strength has been gathered we must carry our propaganda among the workers.... It is very necessary that at least a few of those willing to work along our line, are sent here as soon as possible....It is abosolutely necessary to be here not later than the end of March....Usmani use all your energy and resourcefulness to send at least two or three people out in a month. The future of our work depends on this. We must begin the organization of the Party and build our own press inside the country. Mukherji has gone back to India. The devil has at last joined the Berlin crowd. His ambition knows no bound. He killed himself in the International by his own behaviour; now he has gone to India to humbug the unwary people there.
(This is a reference to a former associate of the appellant with whom he eventually quarrelled, and whom the appellant was influential enough to have expelled from the Communist International).
(Have you received the appeal and has it been published ? Send us some more addresses where Big bundles of the paper can be mailed.)
24. Exhibit 10-This is a letter from the appellant to Usmani from Berlin dated 9th March. It states:
In my letter instructing you go to Calcutta, you were told about the work there. To have a conference of those agreeing with our ideas and programme, is very important for the future of our work. We know that a favourable atmosphere has been created by our propaganda as well as by the collapse of the non-co-operation movement. We must begin the organization of our party. This must begin with a conference. I want you to see the people in Calcutta who are supposed to agree with us at least partially and convince them of the necessity of the conference....Party organization must be started. The groups in the differents (provinces) to be linked up in a national organization. (All these) things have to be definitely decided in (a local term)? To send best available delegates is your immediate task. We have five centres to link up. Dange group in Bombay; (2) Jugalal group in Lahore; (3) Your people in the United Provinces; (4) Muzaffar Ahmad & Co. in Calcutta and (5) Singaravelu group in Madras. So you see we have a good framework to build upon....Enclosed is a letter for Dange. Send to some address in Bombay to be delivered personally. You, Muzaffar Ahmad or somebody else must have an acquaintance there. His letters cannot be entrusted to the mail. Have you got the appeal to the Labour Organization about Chauri Chaura sentences and has anything been done to publish it in vernacular.
25. Exhibit". 11- This is a letter written by the appellant to Singaravelu from Zurich. It refers to the fact that Singaravelu has been nominated by the new committee of the Trade Union Congress as one of the four candidates for the presidentship of their Congress which will take place in Calcutta in February and it proceeds:
Now, I proceed that we must do our best to take advantage of this situation. The Trade Union Congress is obviously going through a process of reorganization of course, it still lives in officialdom without any organic relation with the masses. But the most hopeful sign is that it has got loose from the monopoly of Chamman Lal who is seeking other avenues to satisfy his ambition after cheap notoriety....I suggest the following line of action for your consideration. First a manifesto issued by you and Mani Lal (if he wishes to be party to the entire plan of action). I must mention here that I am altogether in the dark as to Mani Lal's present attitude. I speak of him with reserve. In this manifesto condition of the Indian working class will be analysed in brief the history of the labour movement traced in broad outlines, the weakness of the movement pointed out, the illusive character of the nominal Trade Unions exposed, their leadership mercilessly criticised, general principles of trade unionism formulated, futility of humanitarian reformism' demonstrated in the light of world experience, the class character of the labour movement brought in to relieve, the inadequacy of purely economic movement free from politics indicated, the supreme necessity or organic relation with the agricultural wage earners and poor peasantry emphasised and above all the role of the working class in the national struggle clearly specified....Trade unionism is bound to develop in India. In the absence of a revolutionary leadership it will become a handmaid of the ruling class. As it is, the Trade Union Community may not represent the masses (and it does not) but it certainly may grow into the leadership which will tie the young movement to orthodoxy and reformism. It is possible to prevent the growth of this reactionary machine if we can take the field early enough.
26. Exhibit 46-This a letter dated 19th March from the appellant to Usmani. In this letter the writer says:
It really surprises me to see that the more I write about what is to be done the more you ask for instructions. I wonder if my letters reach you.... Nobody has imposed upon you, the 'inertia' you complain of. The situation is ripe. You are there. Why do you not do something? I have been writing all along that a nuclei of our party must be organized wherever possible. You never wrote what and how much has been done in that respect. To be short, our party must be organized at once. The things necessary for it are; (1) a preliminary conference of the pioneers for all the provinces here with the committee representatives: (2) calling of National Convention on the return of the delegates to the preliminary conference; and (3) meanwhile form nuclei and groups all over the country. I consider this to be a definite work-a work enough to keep dozen of energetic workers like you busy for the next six months. It is for this purpose; that I ask you to go to Calcutta, there with the help of our comrade to see various revolutionary elements and convince of the necessity of sending delegates to the preliminary conference here. Then to take care of the technical part of the work when Muzaffar Ahmad will be away here Then to visit our group in other provinces, with the same object to induce them to begin work along with the broad outline of work laid down above. You are already informed of the people you are required to see in other provinces.... I have written you already about the financial aspect. Not much can be expected from here. If everything there depends upon the financial help from here I am afraid nothing much will be done. Can you send a full report of what you have accomplished since your arrival in India? I am sending £25 to the Cawnpore address (Laiq) for your travelling expenses. Nothing, definite can be done or said about the financial help for the political work until there is an organization and a concrete plan of work which depends upon the holding of the preliminary conference. To see that the latter meets as soon as possible and that the best available men come to it is the most important immediate task. See the Bengal revolutionaries; use this letter as credential. Start concrete work and help for more may be forthcoming. Do not forget to send reports.
27. It is clear from this letter as indeed from the whole correspondence that it was part of a conspiracy to enlist the help of the revolutionaries in Bengal.
28. Exhibit 37-This is a letter in Bengali from the appellant to Muzaffar Ahmad dated 19th March. It was enclosed in an envelope addressed in English and along with it there was another letter Ex. 46 to Usmani in English. In the letter of Muzaffar Ahmad, Ex. 37 the appellant states that he had received the former's letter of 22nd February. It proceeds:
I have been, for the last eight months, communicating to you in each of my letters my views as to what work has to be started there and how. I have been repeatedly requesting you to come hero, thinking that it will not be possible for you to understand the full significance of our work unless there is a personal discussion once.... I am aware that much work can be done in the country. Unfortunately it is impossible for me to be present in the field of action.
29. Reference is made in a letter to the two sums of one hundred pounds which the appellant has remitted to India for the travelling expenses of his associates. It continues:
All that you have written with regard to the Bengal T.U. Feb. (sic) is right. The C.I. does not want to get intimate with any and every one; nevertheless it is necessary to take steps to win over as amany people as possible. We have absolute faith in all the communists that are in the country and our aim is to link them together and employ them on work. But the Communists are even today small in number and many besides them are working, and are capable of doing work.... The salvation of India will not be secured through a handful of orthodox Communists. There is no Trade Union in our country. It will have to be organized. What have the Communists done up to this in this counexion? If we work independently of those who have begun this work somehow or other, we would only become a drop in the ocean. Have I forbidden the communists to organize a Trade Union? If we had today Communist labour leaders there would be no necessity of looking to scheming people. I have repeatedly written about working among labourers. But nothing has been done. Were it possible to capture the Congress: well brother, I am at a loss to understand why it has not been done ... I have written to you all news about 'Indian independence' in the previous letter. If you have not got that, I have no hand in that. Papers and books, etc., all are sent regularly to the addresses you have supplied. I do not know why you do not get (them). Not only from this country they have been sent also from other countries ... I have written repeatedly what work is necessary to be done. I am writing again. A meeting is necessary of those who are at one with us in views.... Therefore an attempt will have to be made to convene a conference here as early as possible. At least six or seven persons from the different provinces should come. The travelling expenses of these men will be sent. But I do not know how and where they could be sent. Dange's men, Singaravelu's men and men from the "Inqilab" of Lahore must come. Get into touch with them.
30. Exhibit 13-This is a memorandum to the conference for organizing a working class party in India. The appellant admitted that he was the author of this document. In the paragraph entitled "The Programme" the author states:
As correctly pointed out in the circular signed by comrades Ghulam Hossain and Shamsuddin Hasan calling this conference, we must in this conference adopt a programme instead of a scheme of swaraj. My views on this question do not need further elaboration. Without any introductory remark I propose that the programme drafted for the consideration of the National Congress at Gaya be adopted as the programme of our party.... The economic freedom of the producing classes can be conquered only through a revolutionary struggle from beginning to the end. This should be clearly set forth in our programme.... Before the Indian working class can take up the slogan of dictatorship, it has to go through a period of political education which it will gain in the struggle against imperialism, a struggle carried on not for the benefit and under the leadership of the bourgeoisie, but with a class of programme consciously for the interests of the workers and peasants, and under the leadership of a revolutionary vanguard the political party....Upon our ability to formulate these principal points in the political aspect of our programme will depend the possibility of a working alliance between the working class party and the bourgeois national parties. This alliance should be sought during the anti-imperialist struggle. The revolutionary significance, that the nationalist bourgeoisie possess, will be brought to bear fully upon the situation under the pressure of the revolutionary massess...No amount of talk about the panchayats will infuse enthusiasm. The question has to be tackled in a revolutionary way. Nothing less than a total abolition of landlordism will begin a radical solution of the agrarian problem.
31. Under the heading "Illegal organization" the author proceeds:
While believing firmly that legal existence is inadmissible for the growth of a mass paty, I must urge upon you the necessity of an illegal apparatus which should be built as a parallel organization....The question of co-ordinating legal and illegal activities and of building the two parallel organizations one within the other will have to be discussed more fully in the Central Executive Committee and with the Executive of the Communist International....I am against liquidating the Communist party, because experience all over the world has proved that the working class can reach final victory only under the banner of the Communist Programme....It should be remembered that to swear by the term 'non-violence' will not save the party from the Penal Code....As a party of the workers and peasants we cannot help being revolutionaries. Economic emancipation of the exploited can only be attained by the "expropriation of the exproprietors" which cannot be done by peaceful and non-violent means. It is ridiculous to say that we are "non-violent revolutionaries." Such a breed cannot grow, even on the soil of India.
32. It has already been observed that the appellant has admitted that he is the author of the pamphlet entitled "India in Transition." The learned Additional Sessions Judge has discussed the contents of this booklet in the course of his judgment. It will suffice There to give one excerpt from this work:
Masslaction thus begun will develop into organized agrarian strikes into food riots, the plunder of corn stocks and assaults upon large estates with the idea of confiscation. The down-trodden peasantry must be made conscious of their right to live like human beings and our propaganda should be aimed at making them understand that they should conquer the right by militant action. Such action, properly organized on a large scale, will arouse them from their agelong mental and spiritual slavery and make them conscious of their own might. Reactionary pacifism must be repudiated. What burnt out spontaneously at Gorakhpur, Rai Bareilly, Chauri Chaura, Malabar, Central India, and what is going on in the Punjab must be developed by every possible means. Peasant revolts should spread like wildfire from one end of the country to the other.
33. It is unnecessary further to multiply quotations from the letters which passed between the appellant and his co-conspirators in India or from the writings of the former. Sufficient has already been referred to specifically to disclose the character of their association and the true objective of their joint activities. There are upon the file in this case many other letters and documents to which the learned Additional Sessions Judge has referred in the course of his judgment and which are in the same strain as those mentioned in this judgment.
34. From the general evidence in the case I hold it established that the appellant who left India in 1915 joined the International Revolutionary Movement, the head quarters of which were at Moscow. He was elected as a member of the Presidium of the Communist International and was appointed head of the Eastern Department of that organization. He determined with the help of the Communist International to overthrow the Government and set up a communist estate in India. With this object in view he established connexion with, amongst others, the persons whose letters have been referred to earlier in this judgment and some of whom were tried and convicted under Section 121-A, Penal Code, in the year 1924. These persons agreed to work with him and help him in the furtherance of his schemes. The advancement of the scheme to overthrow the Government of India necessitated communication between the conspirators and the appellant. Part of this correspondence has been produced by the prosecution in the Sessions Court.
35. This correspondence and the other documents produced by the prosecution establish beyond all doubt: (1) that the intention of the appellant and his associates was to overthrow the Government of India by violent means and set up a communist estate; (2) with this object in view the appellant endeavoured to arrange conferences to be attended by his associates both in India and in Europe; (3) that his intention was to set up two parties, a legal party which should be called the Peoples Party and an illegal secret party to which only avowed communists would be admitted; this latter party was to work secretly for the overthrow of the existing regime in India. Every member of the communist party was to be a member of the Peoples Party which was to be used as an instrument for stirring up dissension and strife amongst the masses and sowing the seeds of revolution and rebellion; (4) the appellant provided certain sums of money to finance delegates who were invited to come to attend the conference in Europe (5) by holding out hopes of better economic conditions the appellant and his associates, essayed to enlist the support of workers and peasants and by means of personal canvass seditiousi literature and propaganda they endeavoured to inflame the masses against the existing regime and by linking up all the extremists, terrorists and revolutionary elements they intended to compass the violent overthrow of the Government of India.
36. These conclusions are the irresistible inference from the documents which have been produced by the prosecution in this case. It is utterly futile in view of the nature of the correspondence and the character of the other writings to argue that the appellant was not engaged in a conspiracy with an illegal object. If words mean anything at all and if the language of the documents referred to be given its ordinary meaning then it is clear beyond all question that the appellant was engaged between 1921 and 1924 along with his associates in India in a conspiracy to deprive the King-Emperor of the Sovereignty of India. No amount of ingenuity can make these letters and documents mean anything else.
37. It was argued by the learned Counsel for the appellant that "these letters and documents did not disclose a conspiracy already conceived, and entered into. The proposals contained in the various letters from the appellant to his associates in India were mere suggestions, it was argued, as to a line of policy to be formed and there was no evidence upon the record as to how these proposals were regarded by the persons to whom they were addressed. No such interpretation can reasonably be placed upon the correspondence. No doubt there were many proposals discussed in that correspondence, for example the proposals to hold a conference in India and in Europe. But these were proposals made in connexion with the carrying out of a scheme which had already been formulated. What was the necessity of these proposals? Why were conferences to be held? Assuredly not to decide to enter into a conspiracy but in order that plans might be laid for the attaining of an object already envisaged. Conferences were to be held and suggestions were to be discussed to decide the best method of overthrowing by violent means the Government of India and not for the purpose of deciding that the conspirators should embark upon the adventure of overthrowing the Government of India. The suggestions made in the course of the correspondence and the proposals to hold the conferences are clear and conclusive evidence of existant conspiracy.
38. Counsel for the appellant has argued further that the appellant should not be punished for holding extreme views. It has never been suggested that he should. The law does not prohibit a person from forming any views however extreme they may be and if the appellant had confined himself to an academic discussion as to the soundness of his views he would have been guilty of no crime; his letters and pamphlets however are not mere erudite academic discussions. It is clear that the appellant had left the regions of economic discussions and had entered the regions of political action. In his statement before the Sessions Court the appellant prays in aid the works of Hume and Bentham which he claims are authorities for the proposition that it is permissible to engage in an attempt to overthrow a Government by violence. The writings of Hume and Bentham are quite irrelevant to the present issue however weighty the opinion of these philosphers may be in academic matters. Having decided to go beyond the stage of academic discussion, it was necessary that the appellant should have regard not merely to the attractive doctrines of political philosphers but to the mundane matter of fact provisions of the Indian Penal Code.
39. This Court has no concern with the justice or otherwise of the claims of the appellant or with the rectitude of his political views but the Court may take cognizance of the fact that he does hold certain views; for as a guide to his conduct and intention these views are more relevant consideration. With the knowledge that the appellant considered that he could morally resort to force it is impossible to put an innocent interpretation on his actions and to hold that he was engaged between the years 1921 and 1924 in peaceful legitimate political propaganda.
40. learned Counsel for the appellant has submitted further that the documents and letters disclose no ground for holding more than that the appellant desired, to free India from the British connection and he referred to the promises which were given in the past by representatives of the British Government as to the granting of responsible Home Rule to India. He has argued that the appellant should not be punished for striving for what the British Government has already promised to the people of India. The short answer to this argument is that what may be achieved by ordered advance and conrstitutional means in the course of time may not be snatched by immediate resort to violence.
41. learned Counsel for the appellant argued again that the King-Emperor being a constitutional monarch, that inasmuch as he reigned but did not rule and in a democractic state the will of the people prevailed, the setting up of a communist state in India did not have the effect of depriving the King-Emperor of his Sovereignty. This argument is difficult to follow. It suggests a curious confusion of thought. It would be mere waste of time to consider the question whether under a communist state there would be any room for the Sovereignty of the King-Emperor. The two conceptions are too apparently inconsistent. Be that as it may the appellant has no right to attempt violently to overthrow by force the constitution as by law established and through which the Sovereignty of the King-Emperor is exercised. As with the doctrines of political philosphers so with the theories sound or unsound of constitutional law they avail nothing against the plain provisions of the Indian Penal Code.
42. In conclusion it may be observed that if any corroboration of the prosecution case were necessary it is to be found in abundance in the statement of the accused himself in the Sessions Court. It is unnecessary to refer to this statement in detail. It may be remarked however that the appellant does not attempt to deny in his statement the authorship of a number of letters and documents which are attributed to him. He indeed admitted the authorship of some of them. He does not attempt to suggest that he is not the M.N. Roy who is the author of the letters which have been produced. He says in the course of his statement:
In all the documents the responsibility for which I have admitted there occurs in several places the inevitability of violence in the struggle of the Indian people for freedom.... The sovereign right of the Indian people is usurped by foreign power. As the foreign usurper maintains itself in power by force the Indian people are obliged to use force to recover their sovereign rights.... I hold that the British Government of India has been an enormous tyranny and oppression for the Indian masses and it has never been of advantage to them. So the people of India are fully justified on the authority of Hume to take up arms against the present Government. I maintain that the people of India owe no allegiance to the British Crown.
43. It is unnecessary to refer further to the appellant's statement in the Sessions Court.
44. Upon a consideration of the entire evidence I hold for the reasons given that the appellant is guilty of an offence under Section 121-A, I.P.C., and that he has been rightly convicted by the learned Sessions Judge.
45. The appellant has been sentenced to transportation for 12 years. In passing this sentence the learned Additional Sessions Judge has been influenced by the fact that had the conspirators succeeded in their objective appalling and disastrous consequences would have followed: strikes, riots, armed rebellion bloody revolutions and wholesale destruction of life and property. It is permissible to doubt however if the sub-terranian machinations of the appellant and his associates could have produced such dire results. The productions of the appellant's facile pen clearly betray his calibre; his mind is cast in an ordinary mould; his type is common in revolutionary circles throughout the world; his lucubrations are redolent of the confusion of thought, extravagance, indefiniteness and incoherence of expression characteristic of so much of the outpourings of the so-called revolutionary intelligetsia. Some of his compositions are the merest drivel. He had in his exile partaken of the heady wine of Moscow. He had been appointed head of the Eastern Department of the Communist International and it may be that he entertained hopes of one day wading through the fire and slaughter of a revolution, controlled and directed by him from afar, to the head of a dictatorship of the proletariat in India. Certainly his writings suggest that he entertained such chimerical visions. But the appellant is no man of destiny and his activities against the Government of India in many instances may be described as puerile. His chances of realising his ambition were in fact nil. So far as the learned Additional Sessions Judge in sentencing the appellant has been influenced by the fact that the success of the conspiracy would have spelt disaster in India he has erred on the side of severity. Nevertheless the appellant has been found guilty of a serious offence. In conjunction with the avowed enemies of the British Empire he engaged in an attempt, however futile to stir up armed revolution in India. His associates in the conspiracy were tried in the year 1924 and were sentenced to four years' rigorous imprisonment. In deciding what punishment should be awarded against the appellant, however, I take into consideration the fact that he was the leader amongst the conspirators; his was the moving spirit and the master mind. In view of the fact, that the appellant has been incarcerated since his arrest in 1931, I am of the opinion that the ends of justice will be met by sentencing him to six years' rigorous imprisonment.
46. In the result the sentence of transportation for 12 years against the appellant is reduced to one of six years' rigorous imprisonment. Quod ultra the appeal is dismissed.