JUDGMENT

Lawrence H. Jenkins, C.J. - Forty-six accused have been, committed to this Court for trial u/s 6V(&) of Act XIV of 1908, and the charges against them are under Sections 121A, 122 and 123 of the Indian Penal Code.

2. Of these the principal charge is that u/s 121A, of conspiracy to wage war against His Majesty the King-Emperor, and deprive the King-Emperor of the sovereignty of British India, and to overawe by means of criminal force, or show of criminal force, the Government of India, as bylaw established. The charges under the other sections are subsidiary, and have not been discussed before us. The period of the conspiracy, as charged, is "between the Christian years 1905 and 1910 both inclusive," and the accused are charged with having conspired at Sibpur in the District of Howrah, and at other places in British India.

3. Of the 46 accused so charged, Bhuban Mukherjee is alleged to be of unsound mind, and consequently incapable of making his defence, and an application has been made to us, u/s 465 of the Criminal Procedure Code. As against him we have directed an adjournment of the trial subject to any objection that may be taken on his behalf.

4. The accused Satish Chandra Mitter and Haripado Adhikari have been discharged for want of jurisdiction, by reason of the failure of the prosecution to observe the provisions of Section 196 of the Criminal Procedure Code. The accused Bimola Deb has been acquitted at the instance of the prosecution, on the ground that there was no case against him.

5. The case against Kiran Rai has been dropped, not for lack of evidence, but because his mental condition appeared to be such that the prosecution against him could not properly be continued; and, in adopting this course, Mr. P.L. Roy was influenced, and properly influenced, by the fact that this accused had already been sentenced to eight years' rigorous imprisonment for the Haludbari Dacoity, which is alleged to be a part of this conspiracy.

6. Counsel for the Crown also determined not to proceed with the prosecution against Jotindra Nath Mukherjee and Nibaran Mozunadar alias Karuda, as the relevant evidence he was able to adduce against them was not sufficient to support a conviction.

7. The case for the prosecution is that the accused were members of a vast conspiracy, organised and working in secrecy, and aiming at the overthrow of the British Government: that, though the period of the conspiracy mentioned in the charge was between 1905 and 1910 both inclusive, the movement commenced earlier: that the principal centres of the conspiracy were Calcutta, Sibpur, Kidderpore, Nattore, Hooghly, Bankura, Midnapur and Jessore: that the scheme of the conspiracy required the collection of men, arms and money, and that an actual start in this direction was made: that men were recruited and arms and ammunition collected, that to obtain funds dacoities were committed, and swadeshi shops were started. As a part of the conspiracy, it is said, many crimes were committed, for the prosecution would ascribe to the conspiracy a number of dacoities attempted or committed, the murder of two police officers, and one informer, the endeavour made to seduce troops from their allegiance, and other minor offences. Many of these offences have actually been the subject of judicial investigation and adjudication, and several of the accused have already been convicted, acquitted or discharged, in respect of them. Where there has been an acquittal, there has of course been no further discussion, for the acquittal is conclusive, and indeed it would be a very dangerous principle to adopt to regard a judgment of not guilty as not fully establishing the innocence of the person to whom it relates: Rex v. Plummer [1902] 2 K.B. 339.

8. In other cases we have been compelled, by the course the prosecution have seen fit to adopt, to hear the evidence again, in proof of these same offences against the same accused. In other instances completed offences, as for instance the Net