Documents in the Life of Sri Aurobindo
PROPOSED APPEAL OF THE ALIPORE JUDGMENT
CASE AGAINST ARABINDO GHOSE
I have just come [to] the end of an exhaustive study of the case against Arabindo Ghose.
The following facts are indisputable:
(a) His declared aim was the absolute independence of India. He expressly discarded the ideal of colonial self-government:
(b) He avowed the principle that this aim could not be attained by gift from the English and that it must be attained otherwise:
(c) He worked with others towards the attainment of this aim:
(d) He himself was inspired by religious fanaticism with this as his dominating ideal and he endeavoured to inspire others with a religious fanaticism of the same kind:
(e) His contribution was to preach that the aim might be attained by the development of spiritual force: if every individual directed his will power1 in that one direction, the resultant force would accomplish the ideal:
(f) The Manicktollah Garden was an institution framed on these principles and by the youths gathered there Arabindo was regarded as the Karta (the head) and by some as a sort of High Priest or Guru. Many of them are proved to have associated with Arabindo.
(g) He owned a share in the garden: he was in constant touch with Barendra Kumar Ghose, his brother, who guided the persons employed in the use of explosives.
(h) From December, 1907, his mind was in a state of unusual tension and in the spring of 1908 the Bande Mataram newspaper which he managed was anticipating an immediate violent revolution.
On the other hand
(1) Although he was in such close association with such advocates of violence as the Yugantar and Navasakti II2 newspapers as to receive applications for help from the one and allow his name to be used as the Director of the other, he to a certain extent deprecated violence in his paper the Bande Mataram. He pretended that the use of will power was a better way.
(2) Apart from Barens confession to the police which is not admissible in evidence, there is nothing to show that Arabindo ever went to the Manicktollah garden himself.
(3) There is nothing to prove directly that he knew or sympathised with bombs except two papers (the sweets letter and the scriblings [sic] in a book found in his house). Both these papers are open to some criticism and it could not certainly be predicted what view an Appellate Court would take of them.
Mr. Beachcrofts judgment is assailable on several material points. In saying this I do not wish to derogate from the reputation which Mr. Beachcroft has justly earned for his patience, fair-mindedness, and industry.
I. He has not adequately realised that Arabindos religion was (to use a loose phrase) the expulsion of the English from India. To use Arabindos own words I worship my country. If a demon sits on the breasts of the mother to drink her blood then what should the son do? I know I have strength to deliver. God sent me to the world to do this. Mr. Beachcroft writes as if Arabindo had some religious notions apart from this. In this the judgment was erroneous. The words quoted can fairly be shown to describe the whole religion and the motor passion of Arabindos life.
II. This error of Mr. Beachcrofts colours the whole judgment and induces Mr. Beachcroft to accept innocent interpretations on inadequate grounds. Thus in Exhibit 286/3 Arabindo says I wish to carry on another movement which requires unlimited money. Mr. Beachcroft accepts the interpretation that this means an innocent religious movement. The error is traceable throughout the judgment.
III. In dealing with the correspondence of Arabindo with his wife and with various politicians Mr. Beachcroft has not given adequate weight to the fact that these letters prove (a) constant intercourse with his brother Baren (b) correspondence with men whose names appear in Barens note books and who are collaborating or at least conspiring together for independence. In one of these letters are the significant words Government has woke up too early.
IV. Mr. Beachcroft can be shown to have failed to give due weight to Arabindos speeches. He says they indicate that Arabindos main idea was National Education. But take these words I have written about many things Swadeshi, Boycott, National Education. But there was one truth I have always tried to lay down as the foundation stone It is not by National Education alone that this country can be saved. and he goes on to say that what will save is the idea that he and others working with him are the instruments of an invincible power working for the emancipation of India from subjection to England. He says Ours is a journey towards purna Swarajya complete independence as distinguished from colonial self government and he praises the Yugantar.
V. Mr. Beachcroft has not attached sufficient weight to these articles which were found ready written in Arabindos handwriting in his house. He erred in treating these as mere philosophic reflections and laid too much stress on the fact that they were not published. They were weapons lying ready for use. Moreover to my mind they throw a flood of light on the question what Arabindos attitude towards Bombs actually was. Remember that his publicly avowed mission was to induce into India a passion for absolute independence then read this The Nationalist does not love anarchy and suffering for their own sake but if anarchy and suffering are a necessary passage to the great consummation he seeks, he is to bear them himself, to expose others to them till the end is reached. He will embrace suffering as a lover and anarchy as a trusted friend. Read with this his letter to his wife in February 1908, (exhibit 292/4). The state of my mind has undergone a change. hereafter I shall have no will of my own. Wherever God directs me I shall do like a doll My movements may be sorrow to you, and the article in the Bande Mataram in April anticipating a violent revolution immediately impending.
VI. On several minor points the judgment is open to criticism. I will not mention these now.
To sum up on the question of appeal against the acquittal:
Arabindo is a hero of a spiritual type. Shall we gain much by getting him sentenced to imprisonment? He is then likely to develop into a myth If we leave him loose now, he may be actually less dangerous In the wear and tear of actual life his unpracticality is certain to disclose itself and possibly he may be a safeguard for it will be consistent with his theories now to believe that the way of violence is not the way of God or God would have permitted it to succeed.
On the whole my advice is against an appeal.
21st May 09.
Sd. E.P. Chapman.
I submit Mr. Chapmans note on the question of an appeal against the acquittal of Arabindo Ghose together with a printed copy of the judgment. The portion relating to Arabindo will be found on pages 46-53. Mr. Chapman is of opinion that Mr. Beachcroft has failed to give proper value to the evidence against Arabindo in several particulars, and that he himself would have convicted him upon the evidence, but he thinks it would be impossible to predict the result of an appeal, and therefore he does not advise one. The general mistake which Mr. Beachcroft appears to have made, which vitiates all his arguments, is with reference to Arabindos religious character. As Mr. Chapman has shown, he gave evidence of only one kind of strong religious feeling, which was an intense form of patriotism ready to accept all measures for the deliverance of his country from the rule of the foreigner. Viewed in that light his religious ideas would tell against, rather than for him. Secondly, I think it is very evident that Mr. Beachcroft has failed to properly estimate the value of the sweets letter. The arguments about the sort of expressions used as being unsuitable between Bengali brothers, seem to have very little force in the case of persons with the English education which the Ghoses possess. Mr. Beachcroft admits that if the letter is a forgery it has been most admirably executed, but he finds that it really was found on search, and that the search took place on the 2nd May immediately after the conspiracy had been unearthed. If that was so what was thought to have been the opportunity for forgery, and why should the forgery have taken this particular form? If forgery were to be employed to implicate Arabindo, it would have been easy to do so in much clearer and more unmistakable terms. Mr. Beachcroft does not attempt to unravel this at all, and merely contents himself with saying (near top of p. 52) that in cases where spies are employed documents find their way into the houses of accused persons in ways that cannot be explained. Who prior to the 2nd May 1908 knew that Baren would be found in possession of bombs, but that there would not be evidence to implicate Arabindo unless it were forged and introduced into his house? Nevertheless I am more than doubtful as to whether an appeal should be filed. We are certainly not to file a speculative or fishing appeal nor even if we have good grounds should we file one without at least a very fair prospect of success. The filing of an appeal will certainly be commented on as vindictive persecution, and should it fail, comment of that kind will be freely repeated with most damaging effect. On the other hand if it were thought that an appeal had a reasonable prospect of success, we should not be deterred from it by anything that might be said. I think it due to the importance of the case that the question should be submitted to the closest scrutiny. Mr. Chapman has dealt with the question as he says on somewhat broad lines, and has not gone into all the details. Mr. Withall I feel sure would be strongly in favour of an appeal. Mr. Norton expressed a strong opinion immediately after the acquittal in favour of appealing, but suggested that as his opinion would no doubt be regarded as prejudiced, the opinion of Inverarity of Bombay should be taken. I think that the proper course would be for Mr. Chapman and Mr. Withall to carefully state the case for an appeal and submit it to the Advocate General, if one has been appointed, or otherwise, as suggested by Mr. Norton, to Mr. Inverarity. I do not attach any importance to Mr. Chapmans reason for letting Arabindo alone. If he was privy to the conspiracy at all; he was the brain, not perhaps to plan the details, but the fountain of moral and intellectual energy. If we were convinced of this and that we could convict him, it would be political suicide to fail to do it, but I certainly would not proceed on less than a two to one chance in our favour.
The course proposed by C.S. should be adopted, for there is just the off chance that Counsel may advise that an appeal would have a strong probability of success. In that case, we should be failing in our duty if we did not proceed with it.
But if Counsel advises that the success of the appeal is doubtful, it would be most unwise to take action. The mere filing of an appeal would revive popular feeling against Govt. which seems to be dying down and if we failed to justify our action by success we should have drawn this upon ourselves for nothing.
P.S. I have kept the copy of the judgment.
The file may be sent to Mr. Chapman who will arrive at Woodlands probably by Monday.
He will understand what is to be done from the notes above & Counsel, whether the Adv. Genl. or another must understand that we want an opinion not merely whether there are good grounds for appeal but whether there is a strong probability of success without which we should not proceed.
With reference to the sweets letter L.R. or Mr. Withall may remember that when Arabindo Ghosh first appeared as a new leader at public meetings, as he knew no Bengali, he had to make his speeches in English & the chairman of the meeting who introduced him had to apologise for this fact. This may be verified by reference to the newspapers of the time. I must have seen it in the Englishman, I think. This would show that the brothers were thoroughly anglicised & not likely to use Bengali terms of endearment.
Government of Bengal, Political Department, Confidential File No. 205 of 1909. Serial No. 1.
Telegram (transposed [i.e. from cypher?] copy).
Dated the 2nd July 1909.
Telegram No. 93, Political. Reference invited to para. 4 of demi-official letter No. 83-P.D., dated 12th May 1909. The Government of India ask us to wire in connection with the appeal against the acquittal of Arabindo Ghosh, what decision has been arrived at. The Government of India think that there are no political objections to the filing of an appeal in the case, if the legal advisers are clearly of opinion that an appeal would meet with success.
Extract from Government of Bengal, Political Department, Confidential File No. 205 of 1909. Serial No. 4.
[Serial No. 19.]
Dated Bombay, the 10th August 1909.
From T.J. Strangman, Esq., Advocate-General, High Court, Bombay,
To The Honble the Legal Remembrancer, High Court, Calcutta.
I have considered the papers forwarded to me by you, and have had the advantage of consultation extending over one day with Mr. Denham. On the whole, I am of opinion that there is a fair chance of a conviction against Arabindo Ghose being obtained in appeal.
You ask me to say whether there is a two to one chance of success.
This is a question I cannot possibly answer: so much depends upon the personal equation of the Court and the manner in which the case is put before the Court.
I can merely tell you how the case strikes me. One thing is obvious, and that is that the Sessions Judge has never considered the evidence in the only way in which it ought to be considered, viz., in order of date. This omission has no doubt contributed to the conclusion at which he arrived.
2. The case strikes me in this way:
In the first place Arabindo Ghoses views were in accord with those of the conspirators, vide Exhibit No. 283 (The morality of boycott) and Exhibit 299-9 (the article on Nationalism).
This latter article is of the greatest importance, and shows that Arabindo Ghose approved of anarchy as a means to the end at which he aimed. The significance of this article has entirely escaped the Sessions Judge.
3. Next we have evidence which renders it highly probable that he must have been aware of the conspiracy.
One of the principal conspirators was his own brother. He lived with Abinash, another conspirator, in various houses in Calcutta from October to the time of his arrest in May, except for short periods when he was absent from Calcutta.
Sudhir, another conspirator, also appears to have lived with him for part of this period.
The houses he resided in, as above-mentioned, were resorted to by other of the conspirators.
The conspirators appear to have looked upon him as a guru or leader.
4. Lastly, there is evidence to show that he was actually aware of, and joined in, the conspiracy.
It appears that in the early hours of 6th December 1907, an attempt was made to blow up the train of the Lieutenant-Governor by Baren and two others. Baren, however, appears to have returned to Calcutta after laying the charge and before the train arrived at the spot. He must have reached Calcutta early on 6th December.
On that day Arabindo Ghose writes to his wife a letter, Exhibit 294, in which he says: Abinash is not here, nor is Sudhir, and Baren was not here.
The change of tense is important.
I think it may fairly be argued that when Arabindo wrote, Baren was in Calcutta to his knowledge. After mentioning his Congress and Bande Mataram work he says:
Besides these, I have my own work which I cannot leave; and later on he says:
If you write to me encouraging and comforting letters, I shall gain special strength. I shall be able to overcome all fear and danger with a light mind. But what fear or danger could there be with regard to either the Congress or Bande Mataram? It seems to me that it may be fairly presumed from these passages and from the circumstances, that he was aware of what Baren had done, that the dangers he feared were those connected with the conspiracy, and that he was in the conspiracy, though not whole-heartedly owing to fear.
The next item of importance is the letter, Exhibit 295, described by the Judge as the sweets letter.
In my opinion the Judge was wrong in rejecting this letter.
I gather that the handwriting is exactly like Barens. I understand too that the letter was discovered shortly after the search by Mr. Denham, but the envelope was not found till considerably later when the case was in progress. This is important; for one can hardly understand a police spy inserting the letter and envelope separately amongst Arabindo Ghoses papers. The only reason given by the Judge for rejecting it is on account of the internal evidence of the letter, the two points made being that Baren would not address Arabindo Ghose as dear brother, nor would he sign his name in full.
The fact that the letter is in English disposes of the first reason. The second reason does not appear to me to be of any weight either.
If the letter be held proved and if sweets means bombs (as no doubt must be so), there can be little doubt that Arabindo Ghose was in the conspiracy, for Baren could not have written this letter except to one who was in the conspiracy.
The next important letter is one from Arabindo Ghose to his wife, Exhibit 292-4 of 17th February 1908.
In this he says: The state of my mind has undergone a change; but I shall not write about that here. Come here, and I shall tell you all I have to tell. Let me say only this much now that hereafter I shall have no will of my own; wherever God directs me I shall go like a doll; whatever He will make me do, I shall have to do like a puppet.
It will be difficult for you to understand the drift of all this, but it is necessary that you should know, as otherwise my movements may be a source of sorrow to you.
He ends by saying: You must not show this letter to any one; for what I have written to you is a great secret. I have not written or said anything about this to anybody except you. I have been strictly forbidden to do so.
This letter appears to me to show that Arabindo Ghose had decided to cast out fear and to join whole-heartedly with the conspirators.
The Judge has entirely failed to appreciate this letter.
Lastly, we have Arabindo Ghoses removal with Abinash on 28th April 1908 to No. 48, Grey Street, the premises of the Navasakti, and Exhibits 311-2 and 313-2 show that he and Abinash and others were to carry on this paper with a view to propagate revolutionary doctrines.
In addition to the above evidence, there is Barens note-book, Exhibit 239, which clearly shows that one A.G. was a conspirator.
There is no suggestion that there was any person other than Arabindo Ghose with the initials A.G.
5. The above are to my mind the principal points in the case, but, of course, the significance to be attached to these points may strike different minds in different ways.
Should an appeal be preferred, the whole of the evidence should be put before the Court in historical sequence with a view to establish the main points of the case.
If this is done, items, which taken alone may seem meaningless, will no doubt be found to support the points indicated.
Care should also be taken to bring out prominently the fact that Arabindo Ghose was looked upon as a leader or guru by the rest of the conspirators. This is a point which I gather was not made much of before the Sessions Judge.
I do not think it is necessary to appeal against any of the other acquittals with a view to secure a conviction against Arabindo Ghose.
I return all the papers herewith.
[Serial No. 20.]
No. D. 561 D., dated Calcutta, the 18th August 1909.
From The Honble Sir Charles Allen, Kt., I.C.S., Offg. Chief Secretary to the Government of Bengal.
To The Secretary to the Government of India, Home Department.
I am directed to refer to the correspondence ending with the Home Department telegram No. 1062, dated the 15th July 1909, regarding the question of preferring an appeal against the acquittal of Arabindo Ghose in what is commonly known as the Alipore bomb case. As the Government of India are aware, a statement of the case was prepared by Mr. Withall, the Solicitor for the Crown, and was referred to Mr. Strangman, Advocate-General, Bombay, for opinion as to the probability of an appeal proving successful.
2. I am now to forward a copy of the opinion which has been furnished by Mr. Strangman, and to report, for the information of the Government of India, the conclusion at which His Honour has arrived, after a perusal of this opinion, and in consultation with the Legal Remembrancer.
3. Sir Edward Baker has given very careful consideration to the question whether an appeal should be preferred or not. In ordinary or non-political cases Government would certainly not appeal, unless the chance of a conviction by the Appellate Court were held by its legal advisers to be considerably stronger than they are held to be in the present instance by Mr. Strangman. In a case of the very exceptional character of the present one, His Honour would be disposed to require an even stronger probability of success, before proceeding further, than in a case of no political importance. In Sir Edward Bakers judgment Arabindo Ghose is one of the most dangerous factors in the present situation. The Lieutenant-Governor is himself disposed to believe that Arabindo Ghose was guilty of the offences charged against him; and if there were a good prospect of obtaining a conviction, he would have been ready to prefer an appeal. Such a course would, however, certainly cause a revival of public feeling against Government and in favour of the accused, a feeling which at present shows signs of dying out; and, if the appeal should fail, that price would have been paid for nothing. For these reasons I am to state that Sir Edward Baker has decided not to prefer an appeal against the acquittal of Arabindo Ghose.
[Serial No. 21.]
Telegram dated the 26th August 1909.
No. 1295 Political. Reference is invited to letter No. D. 561 D., dated the 18th August 1909. While agreeing that no appeal should be filed at present against the acquittal of Arabindo Ghose, the Government of India express a desire that, on the High Court disposing of the general appeals now being heard by them, the question about Arabindo should be reconsidered. The Government of India also express the desire that, when Mr. Norton is arguing the case against Barindro Ghose, he should be instructed to press the sweets letter with the object of ascertaining the opinion of the High Court on the genuineness of that document and on the aspersions cast on the police by its rejection by Mr. Beachcroft. The Government of India hold that, in the event of the sweets letter being accepted, there will be a strong case for the filing of an appeal against the acquittal of Arabindo Ghose.
[Serial No. 22.]
My dear Allen,
I went down to the Bar Library yesterday and saw Norton. I asked him how he was getting on, and he seemed to think he was making an impression on the Court. I have since heard confirmation of this from another source, and am glad I took the opportunity to say what I could in the way of encouragement. I also mentioned the wishes of Government (Chapman had done so before) in the matter of pressing the sweets letter.
To the Honble Sir C.G.H. Allen, Kt., I.C.S.,
[Serial No. 23.]
Dear Mr. Richardson,
Last evening I received a cypher wire from the Chief Secretary, asking me to ask you to send at once to him the file containing the demi-official correspondence with the Government of India about the appeal against the acquittal of Arabindo Ghose.
To the Honble Mr. T.W. Richardson, I.C.S.,
[Serial No. 24.]
My dear Sir Charles Allen,
I should be much obliged if you could let me see the papers regarding the proposal to appeal against the acquittal of Arabindo Ghose, as it would be very instructive for me to read the opinion given and the decision eventually arrived at by Government.
If the matter is still under consideration, I would draw attention to the fact that the time is now very short, the 6 months period allowed for the appeal will elapse on the 6th of November, but the Courts will close for the Puja vacation, I believe, on the 12th of October, after which date we shall be unable to do anything.
I believe it is a matter of surprise to many lawyers that there has been no Government appeal not only against the acquittal of Arabindo Ghose, but against the acquittal of nearly all the others, particularly those six who were arrested in the garden.
To the Honble Sir C.G.H. Allen, Kt., I.C.S.,
[Serial No. 25.]
My dear Daly,
With reference to your demi-official letter of the 18th instant, I enclose herewith copies of the papers noted in the margin, regarding the proposal to appeal against the acquittal of Arabindo Ghose.
Demi-official from Mr. Strangman, Advocate-General, Bombay dated the 10th August 1909.
To F.C. Daly, Esq.,
[Serial No. 26.]
Telegram dated the 3rd November 1909.
Deputy Legal Remembrancer requests definite instructions before Thursday night about filing Arabindos appeal. Is of opinion that no extension of time can be obtained beyond Saturday morning. Wire reply to Orr, Barrackpore, direct. Letter follows.
[Serial No. 27.]
My dear Duke,
I enclose a letter from Richardson to Orr (Deputy Legal Remembrancer), and Orr to you about Arabindos appeal. Orrs letter was brought to me with request from the Solicitors to open it in your absence. Orr is of opinion that the proposal to obtain time by applying for a certified copy will not hold water, as he has a copy already: and that the appeal should be filed on Friday, although it might perhaps be filed on Saturday morning, but not later. He therefore wants instructions by to-morrow (Thursday) night at latest at No. 36, Barrackpore, whether to file the appeal on Friday or not. A cipher wire on the point has been sent you to-day. I send this to explain matters more fully.
In case the Solicitors want to know independently from me, will you kindly send me a copy of whatever instructions you send to Orr at Barrackpore?
To F.W. Duke, Esq., I.C.S.,
My dear Duke,
With reference to the enclosed confidential letter to me from Richardson, which please return, I write to say that I have a certified copy of the judgment in the Legal Remembrancers office which I intend to annex to the petition of appeal. The petition has been handed to me to-day by Withalls assistant, and my instructions are that I am to sign and have it ready for filing as soon as I receive instructions from you. The real object of this note is to advise you that I consider that if the appeal is to be preferred, the application should be made by me not later than the 5th instant (Friday next), and for this purpose I should like to receive your instructions, if possible, not later than to-morrow evening. I have just moved out to No. 36, Barrackpore, so should your instructions be after 4-30 p.m. to-morrow, perhaps you had better send a special messenger to my house.
P.S. This note will be handed to you by Mr. J. Robertson.
To F.W. Duke, Esq., I.C.S.,
Court would not admit an application of extension of period of limitation: it might be possible to file on Saturday, but in Mr. Orrs opinion we should file on Friday at latest.
My dear Orr,
Withall will speak to you some time about a suggested appeal by Government against the acquittal of Arabindo in the Alipore case. The grounds have been drawn up and are, I think, in order, but it is not proposed to file the appeal (if it is ever filed) till after the judgment in the appeal by those convicted is delivered; and there may be a difficulty about limitation. I think the six months expires on November 5th, and it would be well perhaps to apply to the Alipore Court for a certified copy of the judgment so as to get the benefit of the days required to obtain it, i.e., unless Withall can lay his hands on a copy that would serve our purpose.
If it is necessary to apply for a copy, I suppose the necessary number of folios would be filed with the application.
The matter is strictly confidential.
Government of Bengal, Political Department, Confidential File No. 205 of 1909. Serial Nos. 19-27.
[File No. .]
(19) Letter from Mr. Strangman, dated the 10th August 1909.
The Honble Mr. Duke
I forward herewith the opinion of the Advocate-General, Bombay, on the question of appeal in Arabindos case.
His opinion is almost exactly the same as mine. He cannot say more than that there is a fair chance.
I said a good chance, but I am disposed now to think (after some further experience of the view the Chief Justice takes of the principles upon which evidence in criminal cases should be dealt with) that the chances would be somewhat in favour of failure if we appealed.
Taking the estimate of our chances to be as stated by Mr. Strangman, we would not appeal in an ordinary case. The ordinary rule is not to appeal against an acquittal without something more than a fair chance of success.
I remain of the same opinion.
E.P. Chapman 15-8-1909.
We have now the opinion of Mr. Strangman, Advocate-General, Bombay, on the prospects of an appeal against the acquittal of Arabindo Ghose. He considers that there is a fair chance. He will not say that there is a two to one chance in favour of it.
He considers that Mr. Beachcroft entirely failed to appreciate this part of the case, because he never considered the evidence in the only way in which it ought to be considered, namely, in order of date. He then goes on to show how strong the case is when so considered.
Mr. Chapman says that, in view of the manner in which the Chief Justice appears to look at evidence, the chances in favour of an appeal seem to him to be rather less favourable than he thought before, and that, generally speaking, we do not appeal in cases in which the chances are not more favourable. I am inclined to think that the prospects may be a little better than that. The case as marshalled by Mr. Strangman appears strong, but I do not think there is any distinct balance in our favour. The main point is, after all, the sweets letter, and as Mr. Beachcroft could not convince himself of its genuineness, it is always possible that other Judges may take the same view.
I have always been against undertaking an appeal without strong prospects of success, though I should be reluctant to give it up in this case, for Arabindo is the most dangerous of our adversaries now at large, and the mere fact of filing an appeal would show that Government holds clear opinions about him, and does not accept his protestations that he believes in none but peaceful and lawful methods.
His Honour in his order of 29th May 1909, said that it would be most unwise to proceed upon a doubtful case. The mere filing of an appeal would raise against us popular feeling which at that time appeared to be dying down (and I do not think that at present it is appreciably stronger), and if we failed to justify our action by success, we should have drawn this upon ourselves for nothing.
India wired on the 2nd July 1909 that they thought that if the legal advisers were clearly of opinion that an appeal would succeed there were no political objections to it. All, however, rests upon the if, and the legal advisers are by no means clearly of opinion that the appeal will succeed.
I think we should forward Strangmans opinion to them, saying that while in our opinion Arabindo is probably guilty and there are good grounds for filing an appeal, we do not think the chances of success sufficient in view of the popular excitement against Government which will result from unsuccessful action, but that if they are very clearly of opinion that an appeal should be filed, we are prepared to do it.
F.W. Duke 16-8-1909
Forward a copy of Mr. Strangmans opinion to India for information. Say that I have given the matter very careful consideration, in consultation with the Legal Remembrancer.
In an ordinary or non-political case, I should certainly not appeal unless the chance of a conviction by the appellate Court were held by my legal advisers to be considerably stronger than they are held to be by Mr. Strangman. In a case of the very exceptional character of the present one, I should be disposed to require an even stronger probability of success before proceeding further, than in a case of no political importance. In my judgment Arabindo Ghose is one of the most dangerous factors in the present situation. I am myself disposed to believe that he was guilty of the offences charged against him: and if there were a good prospect of obtaining a conviction, I should have been ready to prefer an appeal. But to do so would certainly cause a revival of public feeling against Government and in favour of the accused, which at present shows signs of dying out; and if the appeal should fail, we should have paid that price for nothing.
I have therefore decided not to prefer an appeal.
E.N. B[aker]. 18-8-1909.
Extract from Government of Bengal, Political Department, Confidential File No. 205 of 1909. Serial number not given.
The Secy. to the Govt. of India,
I am directed to refer to your cypher telegram No. 1295 Political, dated the 26th August 1909, in which the desire was expressed that the question of filing an appeal against the acquittal of Arabindo Ghose should be reconsidered when the High Court had disposed of the appeals of the persons convicted by the Sessions Judge, which were at that time being heard. It was added that when Mr. Norton was arguing the case against Barindro Ghose he should be instructed to press the so called sweets letter with the object of ascertaining the opinion of the High Court on its genuineness. The Govt. of India considered that in the event of this piece of evidence being accepted there would be a strong case for filing an appeal against the acquittal.
2. In reply, I am to say that Mr. Norton was given instructions to press the letter as desired, but neither of the Honble Judges has expressed any opinion upon it. Indeed, leaving aside the question of the existence of a conspiracy of which they held there was conclusive proof, the Honble Judges appear to have avoided as far as possible an expression of opinion on any evidence that might be held to tell against any of the accused who were acquitted by the Sessions Judge.
3. The judgments of the High Court were delivered on the 23rd November, 1909, and the time limited by article 157 of the first schedule to the Indian Limitation Act for an appeal under section 417 of the Criminal Procedure Code had already expired on the 5th November, Mr. Beachcrofts judgment having been delivered on the 6th May. The L.G. was advised that no extension of time, which the Govt. was in a position to claim under section 12 of the Limitation Act, would be sufficient to cover the period between the 5th and the 23rd November. In the circumstances it was not possible to file an appeal and all idea of doing so was abandoned.
I have etc.,
In our letter to the Home Deptt: No. 561 D dated the 18th August last, we informed the Govt. of India that after very careful consideration His Honour had decided not to prefer an appeal against the acquittal of Arabindo Ghose in the Alipore Bomb conspiracy case. In reply we were told that on the disposal of the general appeals the question should be reconsidered and that Mr. Norton should press the Sweets letter which if accepted would strengthen the case against the acquittal. Mr. Norton was instructed accordingly and did press the sweets letter vide the cuttings in the collection below.
2. On the 23rd November the High Court disposed of the general appeals. Meanwhile the period for appealing against the acquittal had expired on the 5th November and the question was raised whether we should not report to India that the idea had to be abandoned as the High Court had not then delivered judgment. A draft to India on these lines was accordingly prepared but His Honour decided on the 12th November to wait for the judgment and then to consider the matter. The L.R. was asked how much extension of time we could get within which to appeal, and after considering the matter and recording his opinion, Mr. Richardson on the 23rd November advised that the idea of appealing should be abandoned. C.S. accepted this and directed that we should report as soon as we get copies of the judgment.
3. The top papers of the case have been printed and the file with a copy of the High Court judgment is put up. Neither the Chief Justice nor Mr. Justice Carnduff appear to have commented upon the Sweets letter. We may perhaps now report to the Govt. of India that the High Court have delivered judgment but not commented on the sweets letter which was pressed by Mr. Norton, and that as the period of appeal is up no further action in the matter is now possible. (There is another file about other action against Arabindo Ghose the papers of which are being printed up and will be separately submitted for orders).
Perhaps the draft below might be shown to L.R. before issue (at any rate).
(1) Flag the reference to extension of limitation in para 3. & (2) then send the draft to L.R. for favour of opinion.
(2) Submitted to L.R.
I should be disposed to word para. 3 as follows:
3. The judgments of the High Court were delivered on the 23rd Nov., 1909 and the time limited by article 157 of the first schedule to the Indian Limitation Act for an appeal under section 417 of the Cr. Pro. Code had already expired on the 5th Nov., the Beachcroft judgment having been delivered on the 5th May. The L.R. was advised that no extension of time which the Govt. was in a position to claim under section 12 of the Limitation Act would be sufficient to cover the period between the 5th and the 23rd Nov. In the circumstances it was not possible to file an appeal and all idea of doing so was abandoned.
Please put a fresh typed copy of the draft with this para substituted.
Final letter to India on the question of an appeal in the case of Arabindo Ghose. Legal Remembrancer has advised on it and drafted the last para.
Government of Bengal, Political Department, Confidential File No. 205 of 1909. Serial No. 28.
1 I use the intelligible word. Arabindo would have called it The God within.
2 I refer to the second edition of the Navasakti.