JUDGMENT

Richard Harington, J. - In this case, 35 persons appeal against the decision of the learned Additional Sessions Judge of Dacca convicting them u/s 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 person were placed upon their trial of these, eight were acquitted; one of those convicted has not appealed and is said to have become insane. The remainder are the appellants before us.

2. Stated, as shortly as possible, the case for the Crown is that the first appellant, Pulin Behary Das, founded an association known as the Dacca Anusilan 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 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 u/s 121A of the Indian Penal Code.

3. Of the appellants some admit and some deny their connection with the Dacca Anusilan Samity. Those who admit their connection contend that the object with which the Dacca Anusilan 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 Anusilan Samity, were in fact independent societies and had no revolutionary or unlawful object in view.

4. 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 Sections 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 u/s 196, Criminal-Procedure Code. His third point was that there had been misjoinder of charges.

5. The third point may be very briefly disposed of. The prisoners were charged under Sections 121A, 122 and 123 of the Indian Penal Code. It was argued that a charge u/s 123 could not be legally joined with one u/s 121A. I do not agree with that contention. The charge u/s 121A is that of conspiring to wage war against the King and 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 therein 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 (he one transaction, and, therefore, may clearly be charged against these persons, under Sections 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. Emperor 37 C. 467 : 7 Ind. Cas. 359 : 14 C.W.N. 1114 : 11 Cr.L.J. 453 in which this point was raised and decided adversely to the contention of the appellants. Mr. Dass says that the contention was withdrawn in that case. But that,