3) In matters not coming within the scope of subsections (1) and (2), the provisions of the Code, in so far as they are not inconsistent with the provisions of Section 10 and 20, shall apply to the proceedings of a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session.
Court's Jurisdiction
The Special Court accordingly has to proceed with the trial of a case as if it were a Court of Session but could take cognisance of offences without the accused being committed for trial to the Court. The Police submitted the Charge Sheet in the case direct to the Court under Section 13(1) of the Act. The question then that arose before the Court was whether it was to proceed with the trial of the case in accordance with the procedure as laid down for the trial of a warrant case or in accordance with the procedure as laid down for the trial of a session case. Section 13 (3) of the Act clearly lays down that in matters not coming within the scope of sub-sections (1) and (2), the provisions of the code, in so far as they are not inconsistent with the provisions of Section 10 to 20, shall apply to the proceedings of a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session.
There was thus no option but to have proceeded with the trial of the case in accordance with the provisions as laid down for the trial of a Session Case. The Court in view of the specific provisions as laid down under Section 13(3) of the Act could not have proceeded with the trial of the case in accordance with the provisions as laid down for the trial of a Warrant Case. The Case is more or less based on Ordinance II of 1942. Had the intention of the Legislature been that the Special Court should proceed with the trial of a case in accordance with the provisions as laid down for the trial of a Warrant Case, then it would have specifically laid down so as it did in the case of trials held before the Court of a Special Judge under Ordinance II of 1942. Further, the trial of the Case, as a Warrant Case would have meant also powers to 'discharge' an accused before framing of the charges, which the Court certainly in no way possessed.
Defences' Contention
The charge in the case was framed by the Court on the basis of what was contained in the chargesheet, as submitted by the Police. It has been contended on behalf of the defence that the charge should have been framed only on the basis of the judicial evidence on the record of the case and not on the basis of what was contained in the chargesheet as submitted by the Police. This, however, could not have been done as the trial of the case for the reasons given could not have been proceeded with in accordance with the provisions as laid down for a trial in a Warrant Case. According to the Prosecution as well as the Defence in the Province of Bombay the trial of all such cases is always held in accordance with the provisions as laid down for the trial of a Sessions Case and not in accordance with the provisions as laid down for a trial of a Warrant Case and the charge is always framed on the basis of what is contained in the chargesheet submitted by the Police. No ruling is forthcoming to show that the procedure as adopted by the Trial Court in the Province of Bombay has ever been criticized by the Bombay High Court. The case accordingly has been tried strictly in accordance with the provisions laid down under Section 13(3) of the Act.
Conspiracy Charge
Now I take up the second law point raised on behalf of the defence. The accused in the case stand charged with having entered into a 'conspiracy' at different places including Delhi, some of them with having committed various offences in pursuance thereof at Delhi and one of them with having committed the murder in pursuance thereof at Delhi. The contention on behalf of the defence is that the offence of 'conspiracy' after the various offences committed in pursuance thereof merged into the offences of 'abetment by conspiracy' and that the offence of 'conspiracy' and the offences of 'abetment' by the 'conspiracy' could not have been tried together.
They in support of their contention mainly rely on I.L.R. 25 Madras 61. This is 1901 Privy Council ruling and lay down that the various offences of 'abetment by conspiracy' could not be tried together. The prosecution, on the other hand, have drawn my attention to 39 Cr. L.J.452. This is 1938 Privy Council ruling, and lays down that 'whatever scope of connotation may be included in the words, the same transaction, if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it'.
The facts of the case were that 'certain persons entered into a conspiracy at Calcutta, Howrah and 24 Paraganas to commit theft of electrical energy - some of them in pursuance thereof abetted the offence of theft and some of them in pursuance thereof committed the theft'. The Privy Council held that the offence of conspiracy to commit the theft, the various offences of abetment of theft and the offence of theft were 'committed' in the course of the same 'transaction' and could be tried together under the provisions of Section 239 (d) of the Cr.P.C. The facts of the present case as alleged on behalf of the prosecution are similar. The accused are said to have entered into a 'conspiracy' at Delhi, Bombay, Poona and other places to commit the murder of Mahatma Gandhi. Some of the accused in pursuance thereof are said to have committed various offences of 'abetment by conspiracy', at Delhi. One of the accused in pursuance thereof is said to have committed the offence of murder at Delhi.
The offence of conspiracy in the present case is said to have spread between the period 1 December 1947 and 30 January 1948. Different individuals are said to have joined the conspiracy on different dates and at different places. The material question accordingly that arises for consideration is whether the conspiracy was completed the moment the first individual conveyed his intention to some individual or individuals or continued till recruitment of the last individual to the conspiracy was made.
It does not appear necessary that all the individuals to a conspiracy must conspire at one and the same time and at one and the same place. 39 Cr. L.J. 452 shows that the conspirators in that case had conspired in different districts and at different times. 16 Cr. L.J. 497 also shows likewise. 47 Cr. L. J. 460 (2) likewise lays down that '. .difficulty sometimes arises by confusing overt acts committed in pursuance of a conspiracy with the conspiracy itself. When at some intermediate stage of a conspiracy a recruit is introduced and agrees to participate in a crime which is already in the process of being planned, can it be said that the divulging of the plan to him or the invitation to him to join constitutes an overt act by the original conspirator; or that the merte agreement by the recruit to participate constitutes an overt act by him? If the contention be accepted that a conspiracy is necessarily complete or concluded immediately 'A' and 'B' agree to the commission of an offence, then the subsequent agreement by 'C' to participate, irrespective of how soon his agreement follows, would not logically constitute 'C' a conspirator in the same conspiracy. It seems to me there are grounds for saying that in certain circumstances, a conspiracy might be a continuing offence. Each case must be dependent on its own facts.' It thus appears to me that a conspiracy in certain case may be a continuing offence.
Section 182 of the Cr.P.C. lays down that 'where an offence is a continuing one and continues to be committed in more local areas than one it may be inquired into or tried by a court having a jurisdiction over any such local areas'.
The accused in the present case are said to have entered into a 'conspiracy' at Delhi, Bombay, Poona and other places to commit the murder of Mahatma Gandhi. Some of them, in pursuance thereof, are said to have committed various offences of abetment by conspiracy at Delhi, and one of them in pursuance thereof is said to have committed the offence of murder at Delhi. 39 Cr. L.J. 452 further lays down the principle that the question of joinder of charges and parties is to be considered from the accusations and not from that of the eventual results, if otherwise. There is accordingly no reason to suppose that the trial has been bad for misjoinder of charges as well as parties.
It has
been contended on behalf of the Dattatreya S. Parchure that he is a subject of the Gwalior Government and that, as such, he is not amenable to the jurisdiction of the Court.
The allegations of the prosecution are that Dattatreya S. Parchure is a British subject domiciled in 'India', that at the instance of Nathuram V. Godse and Narayan D. Apte he got a pistol procured for the murder of Mahatma Gandhi on 28 January 1948 at Gwalior and that the murder of Mahatma Gandhi was committed therewith by Nathuram V. Godse on 30 January 1948 at Delhi.
The prosecution has filed the sanction of the Central Government under Section 188 of the Cr.P.C. for the trial of Dattatreya S. Parchure at Delhi. The Court, in the circumstances, certainly has territorial jurisdiction to try Dattatreya S. Parchure in regard to the offence said to have been committed by him at Gwalior. The Court, of course, before giving any findings in regard to him would have to see whether he is, in fact a British subject domiciled in 'India'.
It has been contended on behalf of Dattatreya S. Parchure that he could not be tried along with the other accused in the same trial. It has already been held above that the offence of conspiracy, the various offences of abetment by conspiracy in pursuance thereof and the offence of murder in pursuance thereof formed part of one and the same transaction. Dattatreya S. Parchure, in the circumstances, could certainly have been tried along with the other accused in the same trial.
The Court was then adjourned till 2.00 p.m. on 24 June 1948.
(The above is taken from the book Gandhi Murder Trial, published for the first time in March 1949 for Tagore Memorial Publications, New Delhi by Dewan Ram Prakash.)
APPENDIX IV
THE APPROVER, BADGE'S STATEMENT
'I run a business selling weapons and explosives in Poona, the name of my shop is 'Shastra Bhandar'. I came in contact with the office bearers of the Hindu Mahasabha in 1940. I have been participating in Hindu Mahasabha Conventions since then. I used to sell books and weapons during these Conventions. I have heard Shri Damodar Vinayak Savarkar's lectures. I met Savarkar in 1944-45. I know Savarkar's body guard Appa Kasar. I had sold some Jambhiya, daggers through Kasar.
'I know Godse and Apte since 1940-41. I was in touch with Savarkar's secretary Damle. I have known Karkare since the past 2 to 3 years. I know a person called Wadhgaonkar, too.
'Once in 1944 I had participated in a meeting of the Hindu Rashtra Dal in Poona, Savarkar had delivered a lecture at that meeting. In the course of his lecture, Savarkar had said that Congress' policies endangered Hindus. He also urged that Hindus should enforce an economic boycott of the Muslims. If the Muslims showed any angst we should retaliate with ferocity. To gain expertise in the use of weapons and to hone our fighting skills, Hindus should join the armed forces in large numbers.
'During 1947 I used to visit the Hindu Mahasabha's office in Dadar, Bombay at least twice a month. When ever I visited Bombay I would make it a point to visit the office of the Mahasabha. I remember that a meeting was held at Savarkar's residence. There were approximately 20 to 25 people apart from me. A group photograph of all those assembled was taken. I was also in the group photograph.
Question - 'Did you ever give Apte any weapons?'
Answer - 'Yes, I had supplied weapons to Apte on many occasions.'
The court noted the question and answer in the same form it had been asked and answered, since the Defence had objected to it claiming that the prosecution had asked a leading question.
Speaking on, Badge said, 'Apte first came to purchase weapons and explosives from me in July-August, 1947. Karkare had accompanied Apte at that time. Apte had come to my shop in Poona to purchase weapons, ammunition and explosives. He told me that 'some very distinguished persons want to buy weapons, ammunition and explosives from you. At this time though, get me a Sten Gun'. I procured a Sten Gun for Apte and Karkare from Gurdayal Singh. The gun was handed over to Apte behind the Yervada Prison. Apte paid me Rs. 1200 for it. From July, August till December 1947, I had sold weapons, ammunition and explosives worth Rs. 3000 to Apte and Karkare.
'One day I was going on a pilgrimage with my family to the Bhor Rajya, State, we were travelling by a bullock cart. At a village called Yervandane, I came across Apte who was riding a motorbike. He asked me, 'I want the 'stuff" ('Stuff' was the code word we used for weapons, ammunition and explosives). I assured him that I would supply it on my return. Eight or ten days later I returned to Poona, after completing the pilgrimage. Within a day or two I gathered the 'stuff' Apte had ordered. After gathering all the 'stuff' I went to the office of Hindu Rashtra Dal and informed Apte that his 'stuff' was ready. Apte told me that as soon as the members of the Hindu Rashtra Dal returned he would come and collect all the 'stuff' he had ordered. Apte came to my shop in the last week of December and asked me if I still had the 'stuff' I had arranged for him? He said that he would send Karkare to pick up the 'stuff' in a couple of days.
'Apte then came to my shop on 9th January at around 6.30 p.m. he told me to keep the 'stuff' ready, Karkare would come with a few persons and inspect the stuff in a few hours. That evening at about 8.30 p.m. Karkare accompanied by three others came to my shop. The other three were Madanlal, Omprakash and Chopra. I had not seen Madanlal before this. Karkare did the introductions.
'Then Karkare asked me 'Brother, show us the 'Stuff' that you are holding for Apte'. I asked my servant Shankar to fetch the 'stuff'. Madanlal inspected the 'stuff' and said that he knew how to use it. The 'stuff' comprised pieces of gun cotton, hand grenades, bullets, pistols, primers and fuses. These people inspected all the 'stuff' and then left. Apte came to the Shastra Bhandar at 10.00 a.m. on 10th January and asked me to accompany him to the office of the Hindu Rashtra Dal. Nathuram Godse was present at the Office when wereached it. Apte asked me to supply 2 slabs of gun cotton, 2 revolvers and 5 hand grenades. At that time I was standing with Apte just outside the Hindu Rashtra Dal Office. Godse was standing inside the office.
'I told Apte that I did not have any revolvers in stock at: that time, but I could supply the rest of the 'stuff' right away. Apte asked me to supply the two slabs of gun cotton and five hand grenades immediately. He told me that he wanted the 'stuff' delivered in Bombay. He assured me that he would pay for the additional transport to Bombay.
'I told Apte that I would be able to deliver the 'stuff' in Bombay only after I sold off my ancestral home in Chalisgaon. Apte agreed to wait. After finalising all this, Apte called Godse out, and informed him about the deal and said, 'Aapla ek kaam par padla','One of our tasks is complete'."
'Godse and Apte told me that I should deliver the 'stuff' at the Hindu Mahasabha's Dadar Office in Bombay by 14th January. On 12th I sold my ancestral home in Chalisgaon and returned to Poona the next day. I ordered my servant Shankar to take all the 'stuff' to Bombay and deliver it to Godse and Apte on the evening of 14th. I packed two gun cotton slabs, fuses and primers for them and five hand grenades in a khakhi bag and handed them over to Shankar.
On 14th January I left for Bombay with Shankar. On reaching Bombay we went directly to the Hindu Mahasabha Office at Dadar, neither Apte nor Godse were present there at that time. When I inquired as to when they would come, I was informed that they were expected to arrive very soon. We waited for half an hour. Since they had not arrived till then, we came down to have some tea and refreshments. As we were climbing down the stairs I saw Apte climbing up, as soon as he saw me, Apte said, 'good that you have arrived. We must find a place to safely store the 'stuff,' come with me'. I took the bag from Shankar and asking him to wait. I joined Apte. We had hardly climbed down four or five steps when we bumped into Godse who was climbing up".
"We walked from the Hindu Mahasabha Office and reached the residence of Savarkar, who lives at Shivaji Park. Apte took the bag from me and asked me to wait outside. He entered the Savarkar home accompanied by Godse. They came out after five to ten minutes; Apte was holding the bag containing the 'stuff'. The three of us went back to the Hindu Mahasabha Office. I called out to Shankar and asked
him to join us. Apte hired a car and all four of us drove to Bhuleshwar, to the home of Dixit Maharaj. I had known Dixit Maharaj since 1940- 41. All four of us entered his home. It was 10.30 p.m., Dixit Maharaj was sleeping. We left Shankar in the entry foyer and went in to the house. We saw a servant of Dixit Maharaj and handed over the bag and asked him to keep it safely. We told him we would collect it in the morning. The servant agreed to do that.
'We came back to the Dadar Office of Hindu Mahasabha. Shankar and I were dropped off there. Apte gave some money to Godse, Godse gave me Rs.50 out of it for the travel and board. They promised to meet me the next morning and told us to sleep in the premises of the Hindu Mahasabha.
'I met Madanlal at the Hindu Mahasabha Office. I asked him 'Karkare kahan hai?' 'Where is Karkare?' Madanlal replied that Karkare had gone to Thana, he would return in a day or two.
'The next day, on 15th January, around 8.30 a.m. Apte and Godse arrived at the Mahasabha Office. At that time Madanlal, Shankar and I were present along with two or three office workers. Apte asked us to accompany him. We followed Apte. Madanlal had not bathed and dressed till then so he remained behind. Shankar and I accompanied Apte and Godse to the office of the Shivaji Printing Press. We met Karkare just outside the office. Apte asked Shankar to wait outside; the rest of us entered the office. We were to meet the proprietor of the press, Joshi. I was asked to sit in the outer office; Karkare, Apte and Godse went into the inner office with Joshi. They came out after nearly one hour. After taking leave of Joshi, all of us returned to the Hindu Mahasabha Office.
'On reaching the Office, Karkare ordered Madanlal to pick up their baggage and accompany him. We all stepped out. Leaving Shankar behind, all of us sat in the taxi hired by Apte and drove to the home of Dixit Maharaj. Madanlal waited in the entry foyer along with the baggage. The rest of us went in. We met Dixit Maharaj there; we had gone to pick up the bag containing the 'Stuff' which we had left there the previous evening.
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