Equivalent Citation: AIR1946Nag173, [1946]ILR Nag126

IN THE HIGH COURT OF NAGPUR

Criminal Appeal No. 72 of 1945
Decided On: 05.09.1945
Appellants: Maganlal
Vs.
Respondent: King-Emperor
Hon'ble
Mr. Justice Niyogi and Mr. Justice Hemeon

Judges/Coram:

Counsels:
For Appellant/Petitioner/Plaintiff: Dr. T.J. Kedar, V.T. Kedar, S.K. Wankhede and E.J.
Moharir in Criminal Appeal No. 72 of 1945 and G.J. Ghate and Y.G. Shirke in Criminal
Appeal No. 73 of 1945
For Respondents/Defendant: M. Hidayatullah, Advocate-General and W.B. Pendharkar,
Additional Government Pleader for the Crown in Criminal Appeal Nos. 72 and 73 of 1945
Subject: Criminal
Acts/Rules/Orders:
Arms Act 1959 - Section 19 (f), Arms Act 1959 - Section 20; Explosive Substances Act,
1908 - Section 4, Explosive Substances Act, 1908 - Section 5, Explosive Substances Act,
1908 - Section 6;Indian Evidence Act, 1872 - Section 118, Indian Evidence Act, 1872 Section 137, Indian Evidence Act, 1872 - Section 25, Indian Evidence Act, 1872 - Section
45, Indian Evidence Act, 1872 - Section 60, Indian Evidence Act, 1872 - Section
83; Indian Penal Code (45 Of 1860) (IPC) - Section 108, Indian Penal Code (45 Of 1860)
(IPC) - Section 120-B, Indian Penal Code (45 Of 1860) (IPC) - Section 121, Indian Penal
Code (45 Of 1860) (IPC) - Section 121A, Indian Penal Code (45 Of 1860) (IPC) - Section
122, Indian Penal Code (45 Of 1860) (IPC) - Section 123, Indian Penal Code (45 Of 1860)
(IPC) - Section 124, Indian Penal Code (45 Of 1860) (IPC) - Section 127, Indian Penal
Code (45 Of 1860) (IPC) - Section 147, Indian Penal Code (45 Of 1860) (IPC) - Section
149, Indian Penal Code (45 Of 1860) (IPC) - Section 307, Indian Penal Code (45 Of 1860)
(IPC) - Section 353, Indian Penal Code (45 Of 1860) (IPC) - Section 395, Indian Penal
Code (45 Of 1860) (IPC) - Section 397, Indian Penal Code (45 Of 1860) (IPC) - Section
411, Indian Penal Code (45 Of 1860) (IPC) - Section 412, Indian Penal Code (45 Of 1860)
(IPC) - Section 436, Indian Penal Code (45 Of 1860) (IPC) - Section 454, Indian Penal
Code (45 Of 1860) (IPC) - Section 457, Indian Penal Code (45 Of 1860) (IPC) - Section
94
Catch Words
Mentioned IN

Overruled
/
Reversed
Tilkeshwar Singh and Ors. Vs. The State of Bihar, MANU/SC/0035/1955

by:

Disposition:
Appeal Dismissed
Case
Note:
Penal Code, Indian (XLV of 1860), sections 94, 108, 121 - Waging mar against
the King, Offence of--Ingredients--Abetment of offence under section 121,
Successful and unsuccessful--Punishment--Distinction, Absence of--Distinction
between principal and accessory--Compulsion--Defence--Criminal Procedure
Code (V of 1898), sections 162 (1), 164, 537--Offence--Reports by two persons
to different places one after the other--First information--Admissibility of
evidence--Mandatory provisions, Breach of--Failure of justice, Absence of-Irregularity not vitiating the conviction--Section 537, Applicability of--Evidence
Act, Indian (I of 1872), sections 33, 118--Evidence--Cross-examination-Opportunity
not
available
to
a
party--Admissibility.
Neither the number of persons nor the manner in which they are assembled or
armed is material to constitute an offence under section 121 of the Indian Penal
Code. The true criterion is the purpose or intention with which the gathering
assembled. The object of the gathering must be to attain by force and violence
an object of a general public nature thereby striking directly against the King's
authority.
While under the general law as to abetment a distinction is made for the
purpose of punishment between abetment which has succeeded and abetment
which has failed, section 121 of the Indian Penal Code does away with the
distinction and deals equally with an abettor whose instigation has led to1 a war
and one whose instigation has taken no effect whatsoever. There is thus no
distinction between principal and accessory and all who take part in the
unlawful
act
incur
the
same
guilt.
When two different persons make reports about the commission of an offence at
two different places, one earlier in point of time than the other, the later report
is not a statement made to a police officer in the course of investigation but is
an independent first information report and can therefore be used in evidence by
the
prosecution.
The mere breach of a provision even though mandatory cannot be said to be an
illegality necessarily vitiating the proceedings and unless there is a failure of
justice occasioned thereby, it will not warrant the quashing of conviction.
No evidence affecting a party is admissible against that party unless the latter
has had an opportunity of testing its truthfulness by cross-examination.
JUDGMENT
Hemeon, J.
1. The appellant Maganlal "Marwadi has been convicted and sentenced to undergo
transportation for life under s. 121, Penal Code, s. 307, ibid, and Defence of India Rule

35,10 years rigorous imprisonment under S. 397, Penal Code, 10 years rigorous
imprisonment and a fine of Rupees 2000 under s. 436/149 and two terms, each of 2
years rigorous imprisonment, under Ss. 147 and 353, ibid, in sessions Trial No. 37 of
1944 by the Additional Sessions Judge, Nagpur. All the sentences run concurrently. In the
same trial, Mallu Koshti was convicted and sentenced under s. 121, Penal ?ode, to
undergo transportation for life, under s. 307/149, ibid, to 8 years rigorous imprisonment,
under S. 436/149, ibid, to 8 years rigorous imprisonment, under S. 395, ibid, to 5 years
rigorous imprisonment and under S. 147 to 2 years rigorous imprisonment, all the
sentences running concurrently, and his appeal, viz., Criminal Appeal no. 73 of 1945, will
be considered in this judgment. Maganlal and his elder brother Champalal are the owners
of a money-lending firm in Hansapuri mohalla, Nagpur, as well as, field and a house in
mouza Baroda which is about 16 miles from Nagpur and 6 miles from mouza Maudha. The
appellant Mallu, who is a wrestler, resides in Maudha where he deals in handloom cloth
and Shamlal Nai (who was acquitted in the trial) is an ex-constable of police who lives in
Nagpur.
2. The prosecution case is briefly stated as follows. Maganlal and Shamlal Nai were the
organisers and officers of the Hindustan Red Army, the head office of which was in Nagpur
in front of the former's house. "There were branch offices at Umrer and other places close
to Nagpur. Its flag was a red flag with a hammer and sickle on it and the uniforms
consisted of red shorts and khaki shirts bearing on the shoulders a metal badge with the
letters H. L. S., i.e., the initials of the words "Hindusthan Lai Sena." The officers wore Sam
Brown belts, topes , boots and stockings with or without puttees. The strength of this
force was about 300 and on certain occasions, e.g., Jalianwala Bag and Independence
days it used to go on route marches under the command of its officers including Shamlal
Nai and Shyamuarayan Kashmiri, Among their slogans was 'Inkilab Zindabad' (Long Live
Revolution) and Maganlal and Shamlal addressed public meetings, one on 23rd
September 1939 at Umrer and the other, presided over by V. S. Dandekar, on 25th June
1940 in Chitnavis Park, Nagpur, in which they stressed the weakness of the British forces
on the continent of Europe and exhorted their listeners to seize the opportunity and
secure India's independence. In the last week of July 1942, Maganlal went to Maudha and
under the pretext of relieving the extensive damage caused by the Kanhan floods raised a
Sanrakshak Dal consisting of about 100 volunteers who were, when the time came, to
mobilise on the blow of a whistle. On the, 12th of the following August, the police outpost
of circle no. 4, Nagpur, was burnt down and next morning Balgovind, constable, who was
attached to that outpost was killed. 3 muskets Nos. 438, 445 and 447 and 60 rounds of
ammunition were removed by the raiders. That evening Maganlal and Shamlal went to
Baroda and on the following morning, viz., Friday 14th August 1942 they conspired with
the people of that village to deal with the Maudha station-house in the same way. In
pursuance of this arrangement, pits were dug in the road between Baroda and Maudha,
the Kanhan bridge and culverts were broken and big trees were placed across the road in
order to sever communication with Nagpur. Babulal Gupta and others were despatched to
Maudha in order to assemble a force for the attack on the station-house; others were
posted at the Kanhan bridge in order to prevent communication with Nagpur and Maganlal
and Shamlal who were each armed with a gun and Baliram who was armed with spear
waited at a culvert which is about 50 yards from the station-house.
3. Meanwhile, at about 5 P.M. Babulal Gupta ascertained the strength of the police force
at the station-house and arranged with the volunteers then in the market place to make
the announcement that V. S. Dandekar would give a lecture. The object was to attract a
gathering of people and when it was assembled someone announced that as the British
raj had been displaced by the Congress raj, there was no need for police and all should
proceed to burn down the station-house. A whistle was then blown and a force of about

200 proceeded to raid the thana. Meanwhile, Shaikh Daood, constable, who had been
sent with a letter by Mendulal, Sub-Inspector, invoking assistance from Nagpur, was
molested and detained at the Kanban bridge by Maganlal and his companions. At about 530 p.m. news reached the station-house of Dandekar's lecture and Mendulal, Gajanan
Prasad (P.W. 22), head constable, and some constables, got ready to attend it while
Gourishankar (P.W. 26), head constable, went to his quarters to take a meal. The stationhouse was locked up at that time and while the police party were awaiting the return of
Gourishankar, Shankar (P.W. 43), constable, came running to report the decision which
bad been reached on the parade ground. Almost immediately afterwards, the attacking
force arrived at the culvert and Maganlal and Shamlal shot Gajanan Prasad in the left
arm. The mob including the appellant Malluthen proceeded to the lamp post in front of the
station-house and Maganlal shot Gourishankar in the knee. The mob thereafter raided the
station-house, broke the doors and windows, set fire to the building, registers and
furniture before making away with 4 police muskets nos. 537 to 540 with bayonets, oil
cans, pull-throughs, handcuffs, police uniforms, oil can (article f), pull-through {article g)
and the great coat (article E). The raiders then proceeded to the Gram Panchayat where
Maganlal told Premlal, the Gram Panchayat Officer, what had happened and asked him to
guard the road on the Bhandara side. Shankar, constable, who had taken to flight from
the station-house when the firing opened was found hiding in a temple and when
produced at the Gram Panchayat was taken by Maganlal and his companions to his house
where his great coat (article D) and other things were removed. Maganlal demanded and
received from Balaji Appa, treasurer of the Sanrakshak Dal Committee, Rs. 300 for the
expenses of his men and he and his group returned to the Kanhan bridge from where
they took Shaikh Daood and Shankar constables to mouza Baroda where they were
detained until the morning of the 16th August 1942 when they effected their escape.
Jamshed Khan (P.W. 50), station-house officer, recorded Gourishankar's first information
report Ex. P-7 next day and started the investigation.
4. Of the 29 persons who had not absconded and were subsequently prosecuted, 8 were
acquitted, one was discharged and the remaining 20 were sentenced to varying terms of
imprisonment ranging from 1 to 10 years by the Special Judge, Mr. G. J. Ambardekar. The
Review Judge modified the latter's judgment by reducing the sentences imposed on 3 of
the accused persons. All 20 appealed and as will be seen from ('45)
32 MANU/NA/0091/1944 : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218 I.C. 294,
Baliram Tikaram v. Emperor, we maintained the convictions of 8 appellants, altered
Baliram's convictions to a conviction under s. 411, Penal Code, and set aside the
convictions of the remaining 11 appellants. The appellants Maganlal and Mallu as well asShamlal had absconded before the investigation began and Mallu was arrested in Nagpur
on 8th June 1943 by Sadashiwa (P.W. 30), Sub-Inspector. Shamlal was arrested in
Bombay on 18th July 1943 by Pradhan (P.W. 4), Sub-Inspector, who with the C. I. D.
Inspectors-Tiwari (P.W. 49) and Pinto arrested Maganlal 10 days later in Bombay.
Maganlal in examination disclaimed all connection with the Hindusthan Red Army and
declared that from 6th August 1942 until the date of his arrest he was in Bombay. Mallu
who admitted that he was a member of the Sanrakshak Dal Committee at Maudha on
14th August 1942 asserted that on or about 19th or 20th August 1942 be was by reason
of police harassment compelled to move to Nagpur where he resided with his brother. As
to his movements on the Friday in question his version was that he was occupied in
distributing grain from 3-30 P.M. to 7-20 P.M. Neither appellant, however, adduced any
evidence in support of his alibi.
5. Before discussing that part of the case which relates to the happenings immediately
before and on 14th August 1942 at Maudha, it will be fitting first to refer chronologically

to occurrences which took place after that date, in order to show Maganlal's associations
and activities while he was absconding and the link which existed between the raiders on
the police outpost at Nagpur and the police station-house at Maudha. Maganlal, Shamlal
and Mallu had, as we have noted, absconded and on 20th and 21st August 1942 the
District Superintendent of Police, Nagpur, issued proclamations offering rewards for
information which would lead to the arrest of Maganlal, Shamlal or any member of the
gang associated with the former in the attacks on the Maudha station-house and two of
its head constables. On the morning of 20th October 1942 Baliram at Nagpur boarded a
bus in which he had previously deposited a long bundle and some bags and after the bus
had been driven by the driver Shriram (P.W. 45), in accordance with police instructions, to
the Sitabuldi station-house, the bundles and bags were opened and found to contain
musket no. 447, 2 great coats, 5 live cartridges, oil can no. 537 and pull-through no. 537.
The musket was one of those removed from police outpost, Circle No. 4, Nagpur, on 12fch
August 1942 and the great coats, oilcan and pull-through were articles taken at Maudha
two days later when the station-house was raided. Baliram wag, as adumbrated,
subsequently sentenced ('45) 32 MANU/NA/0091/1944 : A.I.R. 1945 Nag. 1 : I.L.R.
(1945) Nag. 151 : 218 I.C. 294, Baliram Tikaram v. Emperor to 8 years rigorous
imprisonment under S. 411, Penal Code, for the dishonest receiving of these articles.
6. On 11th November 1942 a bomb exploded outside the bungalow of Mr. Farquhar, I.C.
S., and of the 16 persons prosecuted in respect of this offence and other offences,
Ramrao and six others were convicted and sentenced to terms of imprisonment ranging
from five to two years' rigorous imprisonment under s. 120-B read with
ss. 436, 454 and 457, Penal Code, Ss. 4, 5 and 6, Explosive Substances Act, and Defence
of India Rule 35, by the First Additional Sessions Judge, Nagpur. Their appeals were
dismissed by Pollock J. on 81st January 1945. Five days before this explosion, Chandkhan
(P.W. 32), constable, apprehended Sajit Banerjee who had set fire to a telephone cable
lead in the Sadar Bazar, Nagpur, and took him to the Sitabuldi station-house where he
disclosed to Ramsingh (P.W. 38), Sub-Inspector that the organiser of offences of that kind
was Chourey but claimed that he was unaware of his address. Information regarding this
was not secured until 22nd January 1943 when Ingole (P.W. 36), Sub-Inspector, learned
in Ridhora that Maganlal, Shamlal and others used to meet in B. R. Chourey's house on
the Telankheri road in Nagpur. B. R. Chourey, an employee of the Nagpur Municipal
Committee, occupied this house which is on the Amraoti road in the vicinity of the
Telankheri tank from November 1942 to 23rd January 1943 when he was arrested there
by the police who in the course of a superficial search seized a book entitled "Revolution
or Counter-revolution," a letter to General Awari with his reply, a document issued from
the office of the Hindustan Red Army and two forage caps, among other articles. Gulabrao
(P.W. 23 ), constable, was deputed by Ramsing (P.W. 38), Sub-Inspector, to keep watch
over the house from midnight until 7 A.M. next day when he was relieved by Santosh
(P.W. 40) constable. At about 8 A. M., when Santosh was talking to Hiralal (P.W. 37),
constable, a woman who was carrying s small bundle emerged from the house and while
Santoshrao pursued her Hiralal kept watch on the house and noticed that a boy who
arrived on a bicycle and entered it came out with two bags (articles J-50 and 51) which he
placed on his bicycle before proceeding on it towards Nagpur city. When he disregarded
Hiralal's order to stop, Hiralal followed him first on foot and then in a rickshaw up to the
gate of Nawab Khujji's bungalow where the boy abandoned the bicycle and the bags.
Hiralal directed a passer-by to keep guard over these articles while he went to summon
the police. He was met on the way by Abdul Rashid (P.W. 25), head constable, and Ingole
(P.W. 36), Sub-Inspector, and on their return to the gate they seized the bicycle and the
bags which were found to contain five pistols and revolvers, nine fused, coils, black
gunpowder, 33 leaden balls, detonators and gelignite. The police party then went to the
house in question where an earthen pot containing a bottle of some white substance and

a packet of some sticky substance was discovered under the staircase. The house was
then locked up and the police decided to make a thorough search of it. This began next
day at about 9 A. M. in the presence of Santosh Prasad (P.W. 21), Abidali (p.w. 26) and
Imranali (P.W. 29). When the compound was dug up a wooden box, containing 28 coils of
fuses, four gelignite cartridges and four detonators, was found and not far from it a
flowerpot covered by an iron pan which contained Maganlal's diary. B. R. Chourey was
subsequently convicted and sentenced by the S. 30 Magistrate, Nagpur, to five years
rigorous imprisonment under Defence of India Rules 38 (1) (a) and 38 (5), three years
rigorous imprisonment under S. 19 (f), Arms Act, five years rigorous imprisonment under
S. 20, ibid, five years rigorous imprisonment under s. 4, Explosive Substances Act, and to
the same term under s. 5, ibid, all sentences running concurrently. His appeal to this
Court was dismissed on 9th November 1944.
7. Jagmohan Prasad (P.W. 49), who had gathered from Maganlal's diary that Dr. Vaze was
in touch with him and in possession of some of the missing muskets, had questioned Lila,
an accused in the Chourey case, and learned from her that Dr. Yaze had before his arrest
given Maganlal's arms and ammunition to his patient and relative Durga Bai Joshi who
subsequently passed them on to Martand Jog (P.W. is) in September or October 1942. The
latter had kept the bayonet No. 539 and 75 cartridges in his house and thrown the four
muskets nos. 537, 539, 540 and 445 into a well in his compound. All of these articles
were produced by him on 10th February 1943 and duly seized under memo. Ex. P-42.
Musket No. 445 was, as already shown, one of the muskets removed from the police
outpost in Nagpur on 13th August 1942 and muskets Nos. 537, 539 and 540 were three
of the four muskets removed from the Maudha station-house on the following day. Dr.
Vaze who was prosecuted thereafter, pleaded guilty and was on 12th April 1943 sentenced
to undergo one year's rigorous imprisonment under s. 412, Penal Code, by the First Class
Magistrate, Nagpur.
8. Maganlal's diary, of which-Ex. P-54 is a translation, covers his activities from 22nd
October to 12th December 1942 and shows that on 23rd October 1942 his three
companions and he, disguised as a Muslim, left Nagpur where he was staying with B. R.
Chourey, as the police searches were intensive and Baliram had been apprehended with a
musket from Maudha. After some days the party, alarmed by the news that Dr. Vaze had
been arrested and his compounder Rambhau had disappeared and by the fact that these
persons had much of their saman, decided to return to Nagpur, Madho (who has not been
traced) was sent in one direction while the other three repaired a pistol and set out for
Nagpur. A halt was made at a village en route as V. S. Dandekar had once told them that
shelter could be obtained there, but the kamdar had not received a message from the
owner and refused to harbour the trio. Dandekar's house in Nagpur was reached in due
course, but they were unable to gain contact with one of their friends and returned for the
night to jungle not far from Nagpur. When they eventually met him, the situation arising
from Dr. Vaze's arrest was discussed and it was decided not to stay in Nagpur but to "
start.....work on the Bombay line, " an operation for which, the diarist recorded, all the
instruments were with him. Their travels then took them to a village not far from Wardha,
Hinganghat and Sindi where Maganlal suggested to his companions that after the railway
line, station and wires had been dealt with, the Sindi station-house should be raided. One
of them was sent to Nagpur to bring rifles but on return he pointed out that their
custodian would not deliver them to anybody other than him (Maganlal). As the Congress
leader in the village was also far from enthusiastic and his followers shared his
apprehensions, the diarist and his associates returned to Nagpur on 8th November 1942
and he stayed in a house in the second story of which bombs were being manufactured.
The receipt of information, however, that bombs carried by two young men on bicycles
had exploded on Telankheri road and Ramrao, one of their accomplices, had confessed

renewed his fears and after a brief visit to his wife he took up residence in the countryside. On one occasion he returned to Nagpur in order to meet B. R. Chourey and other
workers and with them planned the programme for the future. Two or three weeks later
there was another move to Nagpur and during his stay there he met Madhorao to whom
he gave funds.
9. A similarly written diary, of which Ex. p-61 is a translation, was recovered on 28th July
1943 from a bag which was found in the room where Maganlal was arrested in Bombay on
that date. It opens with a reference to 22nd July 1943 when Sewakram Gupta and he
travelled together from Calcutta to Gwalior where they stayed in the dharamshala at
which on 25th July 1943 Maganlal and a friend of his had " some talk about the work." In
argument Maganlal's learned advocate did not address us in any detail with regard to the
finding that the diaries were in that appellant's script. Mr. Dixit (P.W. 48), Government
Examiner of Questioned Documents, gave adequate reasons for his opinion that they were
and we have no hesitation in concurring in the finding of the learned Additional Sessions
Judge on this point. Mr. Dixit did not claim infallibility for his opinion, but Maganlal made
no attempt to adduce evidence in rebuttal and the contents of the diaries clearly indicated
that the scribe must have been Maganlal and no other person. The contents of Ex. P-54
also demonstrated his association with V. S. Dandekar, B. R. Chourey, Dr. Vaze, his
compounder Rambhau and Baliram and revealed that his departure from Nagpur was
because of the fact that Baliram had been arrested with a musket which he thought was
one of those captured in Maudha and that his return to Nagpur was compelled by the fact
that Dr. Vaze and Rambhau had much of their material. This diary also made it cleat that
he had a pistol in his possession, occupied a house in which bombs were manufactured
and was planning the destruction of railway stations, lines and cables as well as police
station-houses.
10. The diary which had been concealed in B. R. Chourey's compound contained material
to show that he lived in that house and among the extensive discoveries at that place
there were not only weapons and explosive substances but the photographs (articles 0-30
and 0-81) of Maganlal. Another photograph (article N) which was seized on 9th August
1942 from the office of the Hindusthan Red Army at Umrer is a group photograph of the
Hindusthan Red Army and in it are Shamlal Nai, Maganlal and Shyamnarayan Kashmiri
standing side by side while V. S. Dandekar is several rows behind them. "When Shyamlal
was arrested on lath July 1943 at Bombay by 0. R. Pradhan P.W. 4, Sub-Inspector, the
half torn envelope Ex. P-58A, the letter Ex. P-58-B in it and the printed leaflet Ex. P-580
were found in his pocket. The envelope had been despatched by post from Calcutta in July
1943 and the untorn part of the address which was written in green ink and the postal
seal gave the clue to the post office viz., Kalbadevi from which delivery was to be made.
The letter which was also in green ink was written by Maganlal and Gupta to Prem, the
name given by Shamlal Nai to the police at the time of his arrest, and it contains a
reference to Maganlal's despatch to him of a leaflet which had been issued in Na i.e.,
Nagpur. This leaflet was presumably Ex. P-580 and the contents of that exhibit are as
follows :

"Warning to the C. P. Government and the Police by the free soldier Ka.
Maganlal Bagdi. Tarachand and C. P. Police.
Salutation.
Indian brothers,

The 9th August 1942 -will be written -with golden letters in our National
Movement, specially the History of India. We came out for breaking the
chain of mother India and became free on 9th of August. The dishonest
English (men) are living in India against our wish. The Reverend Mahatma
Gandhi asked them again and again to leave (or -quit) India, but this
daeoit and thief English who has entered for the last one hundred and fifty
years did not quit (India). It is our duty to make our slave country
independent and to drive away these dishonest persons from here.
Brothers, the brutal atrocities, which these dishonest persons have done
on the Indians from 9th of August till now, are thousand times greater
than those of the fascists. That description of atrocities has not been
produced before the public today. But the All India Congress Committee
has appointed a Committee. I am preparing a report of the informations
which have come to me as secretary of that Committee. As soon as it is
prepared it will be published from my Head Quarters before the public in
the shape of service.
In my eyes the C. P. Police and the Government is inefficient. The police of
this place tried hard to arrest me, but it did not meet with success. I know
this also that Mr. Tarachand (City Superintendent) has undertaken to arrest
me. It is welcome. X am ready at all times. You can arrest me. But, Mr.
Tarachand why do you harass the poor and innocent? So far as I have
information you have tried to harass much the relations, mothers and
sisters of the soldiers of the Indian Bed Army. If you have courage and if
you have strength why do you not arrest me? I know this also that in order
to arrest me you are running towards Bombay, Madras, Poona, Marwad,
Delhi and Bhopal. But this free soldier is not going to leave his Subha
(probably circle) and go away, because I have to acquaint myself with the
C. P. Government.
Appeal to the Public.

Brothers I Have you become nervous? Do you not wish to see India
independent? You ought to know very well that at this time the British
Empire is on the way of dying. On one side Germany and Japan are
destroying these and on the other side the entire world is rising against
them. At this time if the Indian brothers resolve in their mind they can at
once free India from bondage. Will you deceive Reverend Mahatma
Gandhiji at such a time ? Will you forget the brave persons who sacrificed
themselves ? Brothers, will you forget him who received bullets on his
chest ? Now the time is nearing. You shall have to apply strength once
again. Make preparations. I assure you that victory is yours. You have no
need to be nervous. Such condition is approaching and if three and a half
lac public of Nagpur takes it in heart the Government of Nagpur Subba
cannot stand before you. When time comes I shall not remain at all
without giving an account of myself to the C. P. Government,

Published from the third Head Quarters,

Yours, free soldier,
Azad Press Maganlal Bagdi,
Long live revolution.
Long live Indian Bed Army. Long live free India."
11. This document indicated Maganlal's connection with the Hindusthan Red Army, his
revolutionary sympathies and his plans for the removal of the Government established by
law in India. The letter Ex. P-58B revealed the connection between Shamlal Nai, Maganlal
and Babulal Gupta who was arrested as an absconder with Maganlal at Bombay on 28th
July 1943 when a fountain pen containing green ink was found on his person. He
(Babulal) was prosecuted with these two persons, but the prosecution was withdrawn in
the committal Court following an application by the Public Prosecutor in which it was
stated that the evidence against him was insufficient. He was, however, clearly an
associate of Maganlal and it may safely- be presumed that he was the Gupta referred to
in the later diary {vide Ex. P-61) as that appellant's companion in his journey from
Calcutta. That diary significantly ended with a reference to 25th July 1948 when they
were at Gwalior and the probability is that an account of the remainder of the journey was
not recorded as Maganlal was travelling for the next two days to Bombay where he was
arrested on 28th July 1943.
12. The case relating to Maganlal's activities prior to the Maudha incidents will now be
examined. It was clear from the evidence of G. R. Dixit (P.W. 24), Sub-Inspector, that
Maganlal and Shamlal were organisers and officers of the Hindusthan Red Army which
came into existence in April 1939 in Nagpur and consisted at the end of 1941 of 150-200
members. Its activities and uniforms have been described in para. 3 of this judgment. A
branch which had been formed in Umrer also in 1939 and mustered about 160 in August
1942 was under the local control of B. R. Tikale (P.W. 41) who acted as Secretary, but the
evidence of Timizzuddin Ahmed (P.W. 46), constable, showed that Maganlal and Shamlal
used to visit that place wearing the uniforms of officers of that organisation. It was
further evident from the Camp-book ex. P-13 maintained by Tikale that there was a camp
for such officers from 15th to 30th May 1942 at which Maganlal and Shamlal held military
ranks and were members of the Court-martial Committee and Maganlal and V. S.
Dandekar gave lectures on "How to organise for political purposes." On 9th August 1942,
the date on which the Army was banned, a red flag, books, uniforms and equipment
including a bugle were seized from the office and the dak book article P-14 showed that
the branch had dealings with the head office at Nagpur to which periodical reports were
sent. Meanwhile, on 23rd September 1939, Maganlal had addressed a public 'meeting
attended by about 200 persons at the New Ideal High School, Umrer, at about 3-30 P. M.
and another one at about 6 P. M. in Mangalwari at that place. Shamlal had sung a song,
the opening verse of which was "Paida Huye Ho To Gulam Ajad Hoke Mar." Abbas Ali (P.W.
12), head constable, and Tamizzuddin Ahmed (P.W. 46), constable, attended both
meetings and the latter recorded notes of Maganlal's speeches (vide Ex. P-32). He then
read out these notes to Abbas Ali who prepared the report (vide Ex. P-31) for
transmission to the office of the District Superintendent of Police at Nagpur. Maganlal in
the course of his speeches on that occasion suggested that the Tahsildar, Naib-Tah3ildar
and Police officers at Umrer should be taken into custody and replaced by themselves. He

also stressed his resolve to assail the Government which was encircled on all sides,
counseled his listeners to join the Red Army and told them that he would inform them
when the attack was to be made.
13. A public meeting attended by about 200 persons was held under the auspices of the
Hindusthan Red Army under the Presidentship of V. S. Dandekar at 7 P. M. on 25th June
1940 in Chitnavis Park, Nagpur, and was attended by Mr. Mohammad Ikram (P.W. 17),
Naib-Tahsildar, and Mr. G. R. Dixit (P.W. 24), Sub-Inspector, who respectively recorded the
notes (Exs. P-44 and P-79) from which they subsequently prepared the reports (Exs. P-45
and P-80). Shamlal was introduced to the meeting on that occasion as the man whose
house had been searched for a bomb and Maganlal in his speech advised his audience to
terminate the rule of the British who were embroiled with Germany. For this he was
sentenced to undergo 1 1/2 years rigorous imprisonment by the Additional District
Magistrate, Nagpur, under Defence of India Rule 38 (5) and in appeal the conviction was
maintained but the sentence was reduced to 9 months rigorous imprisonment. Before
adverting to the evidence regarding the appellants' participation in the attack on the
Maudha station-house, we propose to resolve a question raised as a result of our decision
in ('45) 32 MANU/NA/0091/1944 : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218
I.C. 294, Baliram Tikaram v. Emperor. In that case at page 163 we held that the evidence
of the witnesses who could not be subjected to effective cross-examination in
consequence of the destruction of the statements recorded by the investigating officer
under s. 162, Criminal P. C, was not admissible and proper for consideration. The learned
Advocate-General while conceding that such evidence was not proper for consideration,
questions the correctness of the proposition as to its admissibility. His argument is that as
the persons were competent witnesses under s. 118, Evidence Act, their evidence could
not be treated as inadmissible.
14. The learned Advocate-General's argument would have great force if the admissibility
of evidence were solely dependent on the competency of the witnesses. That is however
not so. A witness may be competent in view of s. 118, Evidence Act, yet his evidence may
be inadmissible if it does not speak to facts but to opinions, inferences and beliefs (S. 45)
or if it refers to what the witness had not seen and heard (S. 60), i.e., hearsay, or when
the witness happens to be a police officer and he seeks to prove a confession made to
him (s. 25). Coming to the particular question before us, Ss. 137 and 13S, Evidence Act,
clearly show that cross-examination is as essential as examination-in-chief for eliciting
from a witness material which is to constitute evidence. In ('67) 9 W. E. 587, Gorachand
Sircar v. Earn Narain at page 588 it was observed:

Now it is certainly the right of every litigant, unless he waives it, to have the
opportunity of cross-examining witnesses whose testimony is to be used against
him.... It follows that evidence given when the party never had the opportunity
either to examine or to cross-examine, as the case may be, or to rebut by fresh
evidence, is not legally admissible as evidence for or against him, unless he
consents that it should be so used.
In ('23) 10 A.I.R. 1923 Pat. 53 : 24 Cr. L.J. 595 : 73 I.C. 339, Moti Singh v, Dhanukdhari
Singh at page 597 it was observed:

Now, it is an elementary principle of law that an examination-in-chief of a witness,

without an opportunity being offered to the opposite party to cross-examine, is not

legally acceptable. Therefore the evidence of the witness in the present case was
not such as upon which the Magistrate could act.
The rule in England is in no way different as will appear from S. 831 at page 756 of Vol.
XIII of Halsbury's Laws of England (Hailsham Edition). There it is said:

Any party is entitled to cross-examine any oilier party or his witnesses, in the same
litigation, and no evidence affecting a party is admissible against that party unless
the latter has had an opportunity of testing its truthfulness by cross-examination.
This aspect of the importance of cross-examination comes into bold relief in S. 83,
Evidence Act. In ('30) 17 MANU/PR/0234/1929 : A.I.R. 1930 P.C. 79 : 52 All. 1 : 57 I.A.
14 : 122 I.C. 8 (P. C), Dal Bahadur v.Bijai Bahadur at p. 81 their Lordships of the Judicial
Committee of the Privy Council rejected as not admissible a previous deposition of a
witness on the ground that when the witness had been examined, the party sought to be
affected by his previous deposition had not the opportunity or right to cross-examine him.
15. In the present case, as in the previous one, there is no dispute as to events that
happened in Maudha on the critical day but only as to the participation or presence of the
accused persons in the unlawful assembly which committed the crimes of attempt to
murder and of burning and looting the police station. If on this point the statements
recorded by the police in the course of investigation were the only material for crossexamination and that was not available to the accused in consequence of their destruction
or otherwise, it must be said that the accused had no opportunity to examine the
witnesses on the particular point and the evidence bearing on the point would, therefore,
be inadmissible. But it must be noted that in ('45) 32 MANU/NA/0091/1944 : A.I.R.
1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218 I.C. 294, Baliram Tikaram v. Emperor the
evidence of some witnesses was held inadmissible not because the notes of their
statements were destroyed but because their destruction resulted in depriving the
accused of the opportunity of cross-examination. Hence, the main point for consideration
is whether in regard to any particular witness the accused has been deprived of
opportunity for cross-examination by reason of the absence of the witness's previous
statements to the police. If there is on the record any statement by any witness to the
police, particularly if it purports to be based on personal knowledge, that statement can
-well be used by the accused for cross-examination and if he omits to avail himself of it
he cannot be heard to say that he was denied the opportunity to cross-examine the
witness. It is on this principle that in the above-mentioned case this Court had given an
opportunity to the accused to cross-examine Sheikh Daud with the aid of the report which
he had made to the police (see at p. 171). The evidence of Gaurishankar (P.W. 6) would
accordingly be admissible for the reason that his earliest recorded statement was
available to the accused for the cross-examination of that witness and it could not be said
that the police had deprived them of their material for that purpose. The evidence of
Shankar (P.W. 46) will be discussed hereinafter, but that of Laxman (P.W. l), Sahedeo
(P.W. 2) and Nilkanth. (P.W. 8) will, for the reasons given above and for those stated in
('45) 32 MANU/NA/0091/1944 : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 : 218 I.C.
294, Baliram Tikaram v. Emperor in which they were also examined as witnesses, be
excluded from consideration.
16. It was strenuously contended that Gourishankar's report (ex. p-7) which was recorded
on the afternoon of 17th August 1942 was not a first information report, as it had been
preceded by reports made by Abdul Khalique, constable, and Mendulal (P.W. 35), Sub-

Inspector, to the District Superintendent of Police at Nagpur on 15th or 16th August 1942
and by a report by Gourishankar himself and Gajanan Prasad to Jamshedkhan (P.W. 50),
station-house officer, on 16th August 1942. This contention, however, lost sight of the
conditions which prevailed in Maudha immediately after the attack on the station-house.
Jamshedkhan was unable to return there until 9-30 p. m. on 15th August 1942 and for
the major part of the next two days his time was fully occupied in restoring law and order,
pacifying the terror-stricken villagers and accompanying his superior officers to Baroda.
The machinery of Government was then almost in a state of suspension and in ('44)
31 MANU/BH/0050/1943 : A. I. R, 1944 Pat. 211 : 23 Pat. 139 : 216 I.C. 142, Mahant
Dukhandas v. Emperor a delay of 11 days in recording a first information report during
contemporaneous disturbances was condoned. Here the delay was considerably less and it
is evident that when the head constables were first interrogated, the station-house officer
was no-t acting as an investigating officer in pursuance of a first information report made
to him. The condition of the bead constables also must not be overlooked. As they were
suffering from gunshot wounds, any statement from them soon after the shootings was
likely to be somewhat vague; and in ('23) 10 A.I.R. 1923 Pat. 550 : 2 Pat. 517 : 73 I.C.
561, Gansa Oraon v. Emperor, as also in ('42) 29MANU/OU/0024/1941 : A.I.R. 1942
Oudh 60 : 43 Cr. L.J. 115 : 197 I.C. 121, Qamrul Hasan v. Emperor and ('31)
18 MANU/WB/0247/1931 : A.I.R. 1931 Cal. 745 : 58 Cal. 1312 : 135 I.C. 289,
Manimohan Ghosh v. Emperor, the view taken was that information of that kind cannot be
treated as coming under S. 154, Criminal P. 0., so as to make it incumbent on the officer
in charge of the police station to start an investigation and he may reasonably require
more information before so doing. The fact that reports had been made prior to 17th
August 1942 to police officers other than Jamshedkhan does not alter the position. A
Division Bench in ('36) 23 MANU/BH/0110/1935 : A.I.R. 1936 Pat. 11 : 160 I.C. 181 :
36 Cr. L.J. 235, Emperor v. Lalji Rai held as follows:

Where a report about the commission of an offence is given to the police at two
different places by two different persons, and one is earlier in point of time than the
other, the later report is not a statement made to a police officer in the course of
investigation but is an independent first information report and therefore can be
used in evidence by the prosecution.
17. A similar view was taken in ('40) 27 MANU/UP/0243/1939 : A.I.R, 1940 All. 291 :
188 I.C. 649 : 41 Cr. L.J. 647, Emperor v. Aftab Mohd. Khan and in ('35) 22 A.I.R. 1935
Pesh. 165 : 159 I.C. 890 : 37 Cr. L.J. 225, Mir Rahman v. Emperor. It was also patent in
the case now before us that the investigation had not begun before the report ex. P-7 was
recorded and that, on the other hand, the investigation was initiated by it.
18. Even if, however, it could not be held to be a first information report, it could be
regarded as a statement made to a police officer in the course of an investigation and
unless otherwise incurably inadmissible could be made available to the accused to
contradict its maker. Its inadmissibility was claimed to be due to the fact that as it was
signed by Gourishankar it contravened the mandatory requirements of s. 162 (l), Criminal
P.C. In 14 A.I.R. 1927 P. 0. 44 : 5 Rang. 53 : 54 I.A. 96 : 100 I.C. 227 : 28 Cr. L.J.
259 (P. C), Abdul Rahman v. Emperor, however, their Lordships of the Judicial Committee
of the Privy Council pointed out that the mere breach of a provision even though
mandatory cannot be said to be an illegality necessarily vitiating the proceedings and
unless it is accompanied by any probable suggestion of any failure of justice having been
thereby occasioned, it will not warrant the quashing of the conviction. In the face of this
pronouncement, it is no longer open to Courts in India to hold that the mere fact that a
mandatory rule of procedure has been broken is enough to vitiate the trial or proceeding;

and as was observed by one of us in ('45) 32 MANU/NA/0091/1944 : A.I.R. 1945 Nag.

1 : I.L.R. (1945) Nag. 151 : 218 I.C. 294, Baliram Tikaram v. Emperor, the sole test is
whether there has been a failure of justice. A finding in that case that there had been
such failure was founded on the fact that the defence was deprived of material with which
fully to cross-examine certain prosecution witnesses, but Ex. p-7 in the present case
provided abundant material for that purpose and it is clear that the defence was in no way
prejudiced by the fact that it was signed by Gourishankar. A similar view, moreover, had
been taken by a Division Bench of this Court in Criminal Appeals Nos. 140 and 181 of
1944, decided on 17th July 1944, in which ('33) 20 A.I.R. 1933 Sind. 188 : 141 I.C.
879: 34 Cr. L.J. 256, Abdulla Khan v. Emperor and ('34) 21 A.I.R. 1934 Sind 78 : 150 I.C.
917: 35 Cr. L.J. 1170, Muhammad Panah v. Emperor had been followed.
19. We are, however, as stated, of the view that Ex. P-7 is a first information report, and
although it is not a piece of substantive evidence it can be used not only to contradict but
to corroborate the statement made subsequently by Gourishankar who was, as we have
held above, a competent witness in virtue of the provisions of s. 118, Evidence Act. That
his evidence was substantially corroborated by Ex. p-7 is clear and it seems to us that if
this report was the result of collaboration between the investigating officer and him it
would have contained a specific reference to Shamlal Nai. This head constable was certain
that Maganlal, who was accompanied by his co-appellant Mallu and others, had shot him
in the knee when he was in the vicinity of the lamp post in front of the station-house and
that these appellants and their companions had broken into the station-house and
removed furniture and records from it before setting fire to all of them. He had also
noticed prior to this that there was a big crowd in which a Congress flag was carried and
he heard shouts of "Hindus-than Azad Hai"
20. In ('45) 32 MANU/NA/0091/1944 : A.I.R. 1945 Nag. 1 : I.L.R. (1945) Nag. 151 :
218 I.C. 294, Baliram Tikaram v. Emperor we had held that that part of Shankar's (P.W. 9
in that and P.W. 43 in this case), evidence relating to what he had seen at the Kanhan
bridge was proper for consideration, as his statement to the investigating officer
concerning that aspect of the incident had been recorded and a copy of it was available to
the defence. Here the position is the same and we find from scrutiny of this part of his
evidence that he was taken to the Kanhan bridge by Maganlal and Shamlal, who were
armed, and others and that this group had with them the four muskets removed from the
station-house.
21. It was, therefore, abundantly clear that Maganlal was in Maudha on that day and this
finding is reinforced by the fact that in the cash book (Ex. p-2B) duly seized from
Chindhooji, President of the Sanrak. shah Dal Committee. On 20th August 1942, there is
a debit entry dated 14th August 1942, i.e., the date of the occurrence, which shows that
Es. 300 in cash had been given to Premlalsao for payment to Maganlal. Our finding was
also strengthened by the circumstances that he made no attempt whatever to show either
that he was in Bombay or not in Maudha on that date and that he shortly afterwards
absconded and avoided detection for almost one year. During part of that period he kept a
diary and in it disclosed his fears on learning that Baliram had been arrested with a
musket from the Maudha station-house. The musket was actually one from the police
outpost at Nagpur, but Baliram was also found to have been in possession of 2 great
coats, oil can and pull-through which had been removed from the Maudha station-house
on the date of the occurrence. The diary also revealed the writer's apprehensions on
learning of Dr. Vaze's arrest and Dr. Vaze had, as adumbrated, subsequently pleaded
guilty to the possession of a musket removed from the Nagpur police out-post, three
muskets and a bayonet removed from the Maudha station-house and 76 cartridges. As 5

cartridges were recovered from Baliram, the total recovered from Dr. Vaze and him was
80, significantly the exact number which had been removed from that station-house. The
diary also-revealed that much of Maganlal's saman i.e., arms and ammunition was with
Dr. Vaze that after Chourey and he had discussed the situation arising from Dr. Vaze's
arrest they had decided to start operations on the railway line to Bombay and that there
was a project to raid the station-house at Sindi. The illation that the diarist was a person
who would be likely to have taken part in the attack on the station-house at Maudha on
14th August 1942 when he was in that village is clear and there is, as we have noted, the
direct evidence of Gourishankar to show that he shot him, as well as that of' Shankar to
show that he was armed and with others in possession of the four police muskets. "We
can, moreover, discover no reason why these police officers should have falsely
incriminated him and it seems to us that if the police had schemed to involve him,
Mendulal (P.W. 35), the officiating station-house officer, would have testified to his
presence on that occasion.
22. Mallu was admittedly in Maudha at that time but he made no attempt to show that he
was, as he claimed, occupied with the Sanrahshah Dal Committee, of which he was a
member, distributing grain from 3-30-7-30 P. M. His examination was so marked by
tergiversation that although he admitted his membership of this Committee, he feigned,
ignorance of the manner and time of its formation as also of its records and resolutions.
He also feigned ignorance of everything which happened in his village on 14th. August
1942. Ignorance of this kind was-incredible and it was significant that no questions
regarding his grain distributing activities was put to Nilkanth (P.W. 8), another member of
the Committee. His statement that he stayed at Maudha for 8 days after the occurrence
before taking his family to the house occupied by his brother in Nagpur was manifestly
untrue as his name appeared in the first information report (ex. P-7) and Jamshed Khan
(P.W. 60), who was bound to arrest him, if traceable, on or after 17th August 1942 the
date on which that report was made, searched for him without success in his house and
that of his relative in Maudha as well as in that of his relative in Nagpur. All of these facts
and circumstances demonstrate the truth of Gourishankar's averment that Mallu was one
of the mob which had set fire to the station-house, its furniture and records and removed
the muskets. This averment was corroborated by the first information report and this
appellant was unable to specify any particular or adequate reason why Gourishankar
should have inculpated him without justification in the present case.
23. We have, therefore, no hesitation in maintaining the convictions of Maganlal under
S3. 307, 436, 149, 397, 353/147, Penal Code, and Defence of India Rule 35, and the
convictions of Mallu under ss. 307/149, 436./149, 895 and 147, Penal Code. The
sentences awarded were not in all the circumstances of the case either harsh or excessive
and they are to run concurrently. We now turn to the question of the propriety of the
convictions under S. 121, Penal Code, which runs as follows:

Whoever wages war against the Queen, or attempts to wage such war, or abets the
waging of such war, shall be punished with death, or transportation for life, and
shall also be liable to fine.
This section is remarkable for the fact that it specifically provides for the offence of
abetment of waging war. Under Expln. 2 to S. 108, Penal Code, the offence of abetment is
constituted even when the act abetted is not committed and, as was pointed out in
('10) 34 Bora. 394 : 5 I.C. 854, Emperor v. Ganesh Damodar Savarkar, while
under the general law as to abetment a distinction is made for the purposes of
punishment between abetment which has succeeded and abetment which has

failed, s. 121, Penal Code, does away with that distinction and deals equally with
an abettor whose instigation has led to a war and one whose instigation has
taken no effect whatever. Another unusual feature is that in virtue of the provisions of
s. 94, ibid, compulsion is not a defence to a charge under s. 121, although it might well
according to the circumstances operate in mitigation of punishment : cf. ('31) 18 A.I.R.
1931 Bang. 235 : 9 Bang. 404: 135 I.C. 849 : 33 Cr. L.J. 205 (S.B.), Aung Hla v.
Emperor.
24. Relying on the observations made by Jenkins C. J., in ('10) 37 Cal. 467: 7 I.C.
359: 11 Cr. L.J. 453, Barindra Kumar v. Emperor at p. 506 it is contended that the
interpretation placed by the English Judges upon the English Law of treason should not be
followed in India. This contention overlooks the fact that the learned Chief Justice's
observations referred to the argument advanced in that case that "it was intended by the
framers of the Indian Penal Code to reproduce the English Law of Treason in its entirety,
that is to say, not only the Statute Law but also the interpretation placed upon it by the
cases." The meaning of the observations becomes clear at p. 507, ibid, where the learned
Chief Justice finds that collection of weapons for a far-off revolution amounts, though not
to waging war, to a conspiracy to wage war. What he really laid down was that the words
'wages war' must be understood in their ordinary sense and that overt acts such as the
collection of arms and ammunition for that purpose do not amount to waging war.
25. In the present case we are only concerned with the words 'levying war' occurring in
the English statute and the explanation by the English Judges of their meaning. As the
term 'wages war' is acknowledged to be a substitute for 'levying war' in the English
Statute of High Treason viz., Statute 25 Edward III, C. 2, it will be fitting to examine some
English authorities in the matter. In (1781) 21 State Tr. 486, Rex v. Gordon at pp. 644,
645 Mansfield C. J., laid down :

There are two kinds of levying war : one against the person of the King : to
imprison, to dethrone, or to kill him; or to make him change measures, Or remove
counselors : the other, which is said to be levied against the majesty of the King, or,
in other words, against him in his regal capacity; as when a multitude rise and
assemble to attain by force and violence any object of a general public nature; that
is levying war against the majesty of the King; and most reasonably so held,
because it tends to dissolve all the bonds of society, to destroy property, and to
overturn Government; and by force of arms, to restrain the King from reigning,
according to law... Lord Holt C. J. in Sir John Friend's case (1688-1700) Holts
Reports 681, 682 says, 'if persons do assemble themselves and act with force in
opposition to some law which they think inconvenient, and hope thereby to get it
repealed, this is a levying war and treason'... The question always is, whether the
intent is, by force and violence, to attain an object of a general and public nature,
by any instruments; or by dint of their numbers. Whoever incites, advises,
encourages or is in any way aiding to such a multitude so assembled with such
intent, though be does not personally appear among them, or with his own hands
commit any violence whatsoever, yet he is equally a principal with those who act,
and guilty of high treason.
26. That was in 1781 and in 1820 Lord President Hope in his charge to the jury in (1820)
1 State Tr. (N. S.) 1353, Rex. v. Wilson at p. 1354 observed :

The circumstances necessary to constitute a levying of war is not that there shall be
a regular trained force, nor a regular army; and, indeed, from the nature of the
thing in common sense, I am sure it must strike you that, except where a foreign
enemy invades the country, war never can be levied in that manner in the
commencement of an insurrection. If an insurrection is to be raised they must
provide arms, and they must get them an the best manner they can; they will be
ill-disciplined and ill-arrayed at the first; but as the insurrection gains ground these
things may be acquired and discipline learnt-Like to our unhappy rebellion in 1745.
How did that begin, with that poor deluded Prince who landed at the head of, I
believe, not many more men, or better armed or clothed, than you have at this
meeting at Strathavant ? When he landed upon the coast he was at the head of
nobody but the boat's crew Who landed him, and some foreign officers and he was
joined by a few half-naked Highlanders. Now I state to you as law, and you will see
it is sense, that he and his followers, from the highest to the lowest-every one of
them was as guilty of treason in the act of first joining him as they were at the last
liour.... In short, what is a treasonable number, as the counsel for the Crown very
properly put it ? What is the quantity of arms persons must have ? The offence is
not in their numbers, not in their force, but, in the language of the law and all the
authorities, it is in the object and purpose which they have in view. If they rise to
effect a general public purpose by force and numbers, that object -renders the
rising treason, be the number great or small. And, indeed, gentlemen, how is an
insurrection to be raised, how is a regular army to be got together, but by the
march of small numbers to the place of rendezvous? How are people to raise an
insurrection ? A great town may turn out in great numbers, but if people in the
country are to rise, how is it to be effectuated, but by each parish arming its
inhabitants, and marching to the place of rendezvous ? And then, as they all
assemble, that is admitted to be treason. But it is less treason when they march
with the same purpose ? I lay down, as the undoubted law of the land, that the
smallest body which rises in arms to effectuate a general purpose (they may have
more or less hopes of success arising out of their number) is treasonable, and
constitutes a levying of war.
27. In (1820) 1 State Tr. (N. S.) 765, K. v. Hardie, a case decided in the same year, the
same learned Judge made the following observations:

It is the law that, in order to constitute a levying of war against the King, it is
neither the number engaged, nor the force employed, nor the species of weapons
with which they may be armed, that will constitute the overt act of treason. To
prove such levying of war it is the purpose and intention, the object which they
have in view, which congregates and assembles them together, -which gives them
the impulse in their arming and in their rising; it is that which constitutes treason,
and distinguishes the crime from that of riot, or any other rising for any private
purpose that can be imagined; and the law is positive, and it has been so laid down
by all our writers, and found by Judges and juries again and again, that, if a rising
and insurrection be for a public purpose, to resist the King's authority, to compel
him to do or to refrain from doing what it is part of his prerogative to do or not to
do as he thinks proper, if it be to compel him to change his measures and councils,
it amounts to treason.

28. Then in 1839 Tindal O. J., in charging the Grand Jury in (1839) 4 State Tr. (N.S.) 93,
R. v. Forst laid it down that:

An assembly of men, armed and arrayed in a warlike manner with any treasonable
purpose, is a levying of war, although no blow be struck; and the enlisting and
drilling and marching bodies of men are sufficient overt acts of that treason,
without coming to a battle or action. And, if this be the case, the actual conflict
between such a body and the Queen's forces must, beyond all doubt, amount to a
levying of war against the Queen.... and, as has already been adverted to, it is
quite unnecessary to constitute the guilt of treason that the tumultuous multitude
should appear to be accompanied with the pomp and pageantry of war, or with
military array. Insurrection and rebellion are more humble in their first infancy, but
all such external marks of pomp will not fail to be added with the first gleam of
success.... It may be proper to inform you, that in the case of treason the law
knows no distinction between principal and accessory; all who partake in the
treason incur the same guilt, and are liable to the same punishment; the
treasonable design once established by the proper evidence, the man who
instigated, incited, procured, or persuaded others to commit the act, though not
present in person at the commission of it, is equally a traitor, to all intents and
purposes, as the man by whose hand the act of treason is committed. He who leads
the armed multitude towards point of attack, and then retires before the blow is
struck; he who remains at home, planning and directing the proceedings, but
leaving the actual execution of such plans to more daring hands; all these are
equally guilty in the eye of law of the crime of high treason.
29. These authorities have been followed by the Courts in India and commentators on
S. 121, Penal Code. In ('31) 18 A.I.R. 1931 Bang. 235 : 9 Bang. 404: 135 I.C. 849 : 33
Cr. L.J. 205 (S.B.), Aung Hla v. Emperor cit. sup. a Full Bench held as follows:

"When a multitude rises and assembles to attain by force and violence any
object of a general public nature, it amounts to levying war against the
King. It is not the number or the force, but the purpose and intention, that
constitute the offence and distinguish it from riot or any other rising for a
private purpose. The law knows no distinction between principal and
accessory, and all who take part in the treasonable act incur the same
guilt. In rebellion cases it frequently happens that few are let into the real
design, but yet all that join in it are guilty of the rebellion.
A deliberate and organized attack upon the Crown forces would amount to
a waging of war if the object of the insurgents was by armed force and
violence to overcome the servants of the Crown and thereby to prevent the
general collection of the capitation-tax."
30. In ('44) 31 MANU/BH/0087/1943 : A.I.R. 1944 Pat. 58 : 22 Pat. 662 : 212 I.C.
266 : 45 Cr. L.J. 606, Jubba Mallah v. Emperor a Division Bench of the Patna High Court
held;

"Although the offence of waging war against the King and committing a riot
may often run into each other the distinction between them is clear.
Where the rioting or tumult is merely to accomplish some private purpose,
interesting only to those engaged in it, not resisting or calling in question
the King's authority or prerogative, then the tumult, however numerous or
outrageous the mob may be, is only a riot. But wherever the rising or
insurrection has for its object a general purpose, not confined to the
peculiar interests of the persons concerned in it, but common to the whole
community, and-striking directly against the King's authority, then it
assumes the character of treason. The numbers concerned and the manner
in which they were equipped or armed are not material.
Prima facie, persons who attack a police-station are guilty of rioting, and
that if the Crown charges them instead with waging war against the King,
it is incumbent on the Crown to show that there is an insurrection and not
a riot, and that insurrection is for the accomplishment of an object of a
general nature."
The Bench relying on a decision of a Full Bench of the Allahabad High Court in ('43)
30 MANU/UP/0018/1942 : A.I.R. 1943 All. 26 : I.L.R. (1943) All. 238 : 205 I.C. 113 :
44 Cr. L.J. 216 (F.B.), Salig Ram v. Emperor, which had followed ('33)
20 MANU/WB/0176/1932 : A. I.R. 1933 Cal. 186 : 60 Cal. 351 : 142 I.C. 351; 34 Cr.L.J.
345, Probodh Chandra v. Emperor, was also of the view that judicial notice may properly
be taken of the facta that at or about the time the police-station in question was attacked,
other police-stations and public buildings over a wide area else-where were also attacked
by persons who professed to be members of the Congress party and to be acting on its
behalf. The evidence as a whole in that case demonstrated that the mob which attacked
the station-house was such that the men in it must have come from different villages and
that the object of its leaders was to substitute for the authority of His Majesty the KingEmperor in the area round Minapur the authority of the Congress party or of those
persons who were or professed themselves to be members of that party and acting on its
behalf in that area; and the Bench in finding that the insurrection was one with an object
of a general nature decided that any person who voluntarily joined in it must be deemed
in law to have waged war against the King.
31. From these authorities the following principles emerge: (i) No specific number of
persons is necessary to constitute an offence under S. 121, Penal Code, (ii) The number
concerned and the manner in which they are equipped or armed is not material, (iii) The
true criterion is quo ammo did the gathering assemble ? (iv) The object of the gathering
must be to attain by force and violence an object of a general public nature, thereby
striking directly against the King's authority, (v) There is no distinction between principal
and accessory and all who take part in the unlawful act incur the same guilt.
32. It is now necessary to apply these principles of law to the facts of the case in order to
determine whether, first in respect of Maganlal, he had as charged waged war against His
Majesty, the King Emperor of India, during the period 1939-1943, particularly on or about
14th August 1942 at Maudha, in the Central Provinces and Berar and thereby committed
an offence punishable under s.121, Penal Code. Although the Hindusthan Red Army
remained in existence from April 1939 until it was banned in August 1942, it was within

that period clearly enough a military or semi-military formation, the object of which, to
judge from its slogans and the speeches of Maganlal, was the overthrow of the
Government established by law and the subversion of the forces employed to maintain
law and order. On 12th August 1942, a police outpost in Nagpur was burnt down and on
the following morning a constable was killed and a musket and ammunition were removed
from it. One of these muskets was eventually recovered from Bahrain who was also found
to be in possession of articles removed two days later from the Maudha station-house.
Although Maganlal, as his diary shows, was under the erroneous impression that the
musket was one of those removed from that station-house, this alone did not connect him
with the attack on the police outpost in Nagpur. The facts, however, that he was at
Maudha armed with a weapon, which to Shankar resembled a police musket, and that his
diary divulged his great apprehension at the arrest of Dr. Vaze, who subsequently
admitted his dishonest possession of 3 muskets and a bayonet from Maudha as well as a
musket from the police outpost in Nagpur, would appear to indicate his connection with
the attack on or the attackers of that outpost. Be that as it may, it was not only
established that he had shot Gourishankar at Maudha, that the mob with him was
shouting Hindusthan azad hai" and that it burned the station-house down but that, as
Shankar declared, the stonework of the Kanhan' bridge and the bridge itself had been
damaged while trees had been placed across various parts of the road between the bridge
and Baroda, a village in which Maganlal has property, and pits had been dug in it.
Jamshed Khan had also noticed that the road had been badly damaged and blocked over
a length of 7 miles; and it was clear that this had been done in order to sever
communication with Nagpur.
33. The diary Ex. p.54 contained an admission of the writer's revolutionary activities -and
an account of his plans for securing guns from Nagpur and for the depredation of the
railway line, station, wires and the station house at Sindi. The printed leaflet issued by
him while he was absconding demonstrated, as we have pointed out, his connection with
the Hindusthan Red Army, his revolutionary sympathies and his designs for the
elimination of the existing Government. This was borne out by his residence in one house
where arms and explosives were concealed and in another in which bombs were
manufactured. In face of all these facts and circumstances it is clear that the raid on the
Maudha station-house was not the outcome of any personal rancour on the part of the
raiders towards its occupants, but was "to attain by force and violence an object of a
general public nature," namely, the substitution of another authority for the
authority of His Majesty the King Emperor, The case was one in fact which was
similar to the ('43) 30 MANU/UP/0018/1942 : A.I.R. 1943 All. 26 : I.L.R. (1943) All.
238 : 205 I.C. 113 : 44 Cr. L.J. 216 (F.B.), Salig Ram v. Emperor, cit. sup., and here too,
as the evidence of Shankar showed, Maganlal was accompanied by others who were not
residents of Maudha itself. At about that time other station-houses over a wide area were
attacked and we are forced to the conclusion that the destruction of the Maudha stationhouse and the shooting of two of its head constables were part of a predetermined plan
for the overthrow of Government at a time when it was involved in a world-wide conflict
and the chances of its ultimate victory were far from evident. Maganlal's conviction and
sentence under s. 121, Penal Code, were, therefore, proper and they are maintained. His
appeal is accordingly dismissed.
34. We do not consider, however, that Mallu should have been held liable under that
section. It is true that he participated in the destruction of the station-house, but there is
nothing to indicate any previous or subsequent connection between Maganlal and him and
it would appear, on the other hand, that he and some of his co- villagers were carried
away by Maganlal and his companions on the day in question. He resides in Maudha and

unlike the Baroda and Nagpur persons who were closely associated with Maganlal cannot
be said to have been fully aware of the object of the expedition to his village. It is true
that there is no distinction between principal and accessory in an offence under s. 121,
Penal Code, and that in the ('43) 30 MANU/UP/0018/1942 : A.I.R. 1943 All. 26 : I.L.R.
(1943) All. 238 : 205 I.C. 113 : 44 Cr. L.J. 216 (F.B.), Salig Ram v. Emperor it was held
that any person who voluntarily joined in the attack on the station-house must be
deemed to have waged war against the King, but Jubba Mallah in that case was one of the
leaders of the mob with a previous record of anti-Government activity and his two coappellants were identified with him from the outset of the attack. The line of distinction is
no doubt fine but it is there and consists of a difference between men who plan and
execute a raid and those who swept along in the maelstrom of events and sudden frenzy
participate in an offence of that kind. We would, for example, have been inclined to
maintain Shamlal's conviction under s. 121, Penal Code, because of his previous activities
and his presence at Matidha, but he was acquitted and no appeal against the acquittal has
been filed by the Provincial Government. Mallu's conviction and sentence under that
section are accordingly set aside.
35. On the authority of ('10) 37 Cal. 467 : 7 I.C. 359 : 11 Cr. L.J. 453, Barindra Kumar v.
Emperor it is contended that the order of the Provincial Government under S. 196,
Criminal P.C. was defective in that it was vague, roving and made no reference to the
incident of the 14th August. That case, so far from supporting the contention, goes
against it. In that case the authority under s. 196, ibid, to lay a complaint was given in
these terms :

there is reason to believe that during a period commencing from about 16th
October 1905 to date at Calcutta and other places the following persons have
committed offences punishable under Ss. 121A, 122, 123 and 124, Penal Code, etc.
Jenkins C. J. declined to accept it as a valid authority for the reason that s. 196, Criminal
P. C, did not contemplate giving "a roving power to determine under what sections of the
chapter the proceedings should be taken." The authority was rejected not because the
particulars of the offence were not stated but because s. 121 was not specified. It must
be noticed that the authority was accepted as valid in regard to offences under
ss. 121A and 122, Penal Code, not-withstanding the omission to state the particulars of
the offences. The wording of the Provincial Government's authority in this case is as
general as that in the cited case, viz.,

to make a complaint against the persons specified below for offences punishable
under Ss. 121, 121A and 122, Penal Code, alleged to have been committed by them
in the Central Provinces and Berar during the period from 1939 to 1943 (both
inclusive).
Sections 121, 121A and 122, Penal Code, which were specified in that order relate to
cognate offences which all come within the category of the offences against the State.
These offences are set out in chap. viz. Penal Code, and s. 196, Criminal P.C. lays it down
that the sanction of Government is necessary before a, prosecution can be instituted
under any section except s. 127 in that chapter. Here the sanction was, as regards the
offences, stated in terms in no way different from those in the Calcutta case and the
appellants could not have been in any doubt as to its significance and limits. Maganlal's
appeal is, as stated, dismissed and Mallu's, subject to the setting aside of his conviction
and sentence under s. 121, Penal Code, is also dismissed.