JUDGMENT

Harington, J. - In this case 35 persons appeal against the decision of the learned Additional Sessions Judge of Dacca convicting them under sec. 121A of the Indian Penal Code and against the sentences varying from transportation for life to rigorous imprisonment for three years passed on them on that conviction. In the lower Court 44 persons were placed upon their trial: of these 8 were acquitted; one of those convicted has not appealed and is said to have become insane. The remainder are the Appellants before us. Stated as shortly as possible, the case for the Crown is that the first Appellant, Pulin Behari Das, founded an association known as the Dacca Anushilan Samity, that that association had branches or similar associations affiliated to it throughout Eastern Bengal, that the object for which the association was formed was for the purpose of bringing about a revolution by force of arms and depriving the King of the sovereignty of British India, that the Appellants were the members of the association and that they had agreed amongst themselves to promote the revolutionary object with which the association was formed : that having associated themselves for this purpose they have committed an offence under sec. 121A of the Indian Penal Code.

2. Of the Appellants some admit and some deny their connection with the Dacca Anushilan Samity. Those who admit their connection contend that the object with which the Dacca Anushilan Samity was formed was not merely an innocent object but that it was a laudable one, viz., that of improving the physical and mental condition of the Bengali race. They contend that the other societies which the prosecution says were affiliated to the Dacca Anushilan Samity were in fact independent societies and had no revolutionary or unlawful object in view.

3. The assessors who have delivered their opinions at some length disagree with the Judge in thinking that the object of the Samity was revolutionary: one assessor has considered the question as to which of the Appellants are connected with the society. When the appeal was called on the learned Counsel for the Appellants took certain preliminary objections which may be properly disposed of before the facts of the case are dealt with. He contended first that there was no complaint within the meaning of secs. 4 and 190 of the Code of Criminal Procedure and that therefore the proceedings were void ab initio because the Magistrate had no jurisdiction to initiate them. In the second place he contended that if there was a complaint it was not lawfully authorised under sec. 196, Criminal Procedure Code. His third point was that there had been misjoinder of charges.

4. The third point may be very briefly disposed of. The prisoners were charged under secs. 121A, 122 and 123 of the Indian Penal Code, It was argued that a charge under sec. 123 could not be legally joined with one under sec. 121A. I do not agree with that contention. The charge under sec. 121A is that of conspiring to wage war against the King and to deprive him of the sovereignty of British India and overawe by means of criminal force or show of criminal force the Government of India. Now in furtherance of that conspiracy the persons engaged there in may actively conspire or they may collect arms or they may conceal the existence of their conspiracy from the authorities. All these acts, if done, are in furtherance of the one transaction and therefore may clearly be charged against these persons under sec. 235 of the Criminal Procedure Code and the prisoners may be tried at one trial for all these offences. But had there been any doubt at all in reference to this matter it would have been set at rest by the decision of this Court in the case of Barindra Kumar Ghose v. King Emperor 14 C.W.N. 1114 : s.c. I.L.R 37 Cal. 467 (1910) in which this point was raised and decided adversely to the contention of the Appellants.

5. The first point, namely, that there was no complaint on which the Magistrat