King, J.
1. On the night of 13th-l4th January last, an unsuccessful attempt was made to damage with gelignite the bridge carrying the South Indian Railway over the river Uppanar near Shiyali in the Tanjore district. Eight accused were tried in connexion with this event under the provisions of ordinance 2 of 1942 by the learned Special Judge for the Presidency Town of Madras at Chingleput. Of these accused, accused 3 was discharged and accused 4 and 5 acquitted. The remaining accused were convicted under various charges and have now appealed in exercise of the right of appeal granted by Ordinance 19 of 1943. Under the same Ordinance the learned Public Prosecutor has filed Criminal Revision Petition No. 459 praying for an enhancement of the sentences passed upon the appellants. That the attempt was made is not disputed. It was discovered on 14th January that a hole had been drilled into the central pier of the bridge at a point 2' 4' above the water level and 10' 9' below the level of the rails, and into that hole had been inserted a packet of gelignite a detonator and a safety fuse, running along the rib of an umbrella. Some pieces of cloth were attached to the outer end of the fuse, and they were found burnt but the fuse had failed to act, and therefore no explosion had occurred. The question to be determined is how far the various appellants have been proved to have been concerned with making that attempt.
2. The prosecution case, briefly put, is this: accused 1 met accused 2 for the first time in accused 2's house in Shiyali on 12th November 1942, being introduced to him by accused 3 and 4, and agreed to supply him with a packet of gelignite. Accused 1 sent the packet to accused 2 on 17th November in the hands of accused 5. Shortly after receiving it accused 2, 6, 7 and 8 agreed together to use the gelignite to blow up the Uppanar bridge. The hole was made and the gelignite inserted on the evening of 13th January in the presence of all four accused. The cloth was set alight in the early hours of the morning on 14th January by accused 7 and 8. The principal items in the prosecution evidence may be tabulated as follows:
(i) The confessions of accused 2, 6, 7 and 8 which were all recorded by P.W. 9, the Taluk Magistrate of Shiyali, on 24th January.
(ii) Entries in the diary of accused 2 under the dates 12th and 17th November. The first of these records the visit of accused 1, 3 and 4 to accused 2 on 12th November, the second of accused 5 on 17th November and the receipt by accused 2 of 'a dynamite'.
(iii) The direct evidence of P.W. 8 as to the visit of accused l, 3 and 4.
(iv) The evidence of P.W. 11 as to the arrival at and departure from Shiyali Railway station of accused 5 on 17th November.
(v) A letter Ex. J said to have been written by accused 2 on 15th January with reference to the unsuccessful attempt, and addressed to accused l in Madras. This was sent through the post and was seized by the police when delivered at accused 1's business address on 18th January.
3. The appellants deny all connexions with the offences. Accused 2, 6, 7 and 8 retracted their confessions at the trial and pleaded that they had been extorted from them by the police through various forms of ill-treatment, threats and inducements and had been improperly recorded by P.W. 9, who both allowed police officers to be present at the time and added his own reassurances that no harm would come to the appellants. Accused l denied that he was ever acquainted with accused 2, and accused 2 supported this denial. Accused 2 pleaded that he was compelled during the police investigation to make the two entries in his diary, and denied that he wrote Ex. J. Of these items of evidence the four confessions are the most important, and they have been first attacked' in appeal on the ground that P.W. 9 was not empowered to record them. The facts relating to this contention are these P.W. 9 was invested with this power on 5th June 1941 when he was Deputy Tahsildar of Vedaraniyam. From 7th September 1941 to 4th September 1942 P.W. 9 was in 'foreign service' as Manager of Pappanad Estate under the Court of Wards, On 4th September 1942 he was posted as Tahsildar of Shiyali. It is argued that as no fresh notification was issued empowering him once more as tahsildar to record confessions, he had no such power, and the notification of 5th June 1941 had effect only uptill 7th September 1941. In support of this argument our attention has been called to the ruling reported in In Re: Mahomed Haji A.I.R. 1923 Mad. 598. The decision of this question clearly depends upon the interpretation of Section 40, Criminal P. C, which in its present form runs as follows:
Whenever any person holding an office in the service of Government who has been invested with any powers under this Code throughout any local area is appointed to an equal or higher office of the same nature, within a like local area under the same Provincial Government, he shall, unless the Provincial Local Government otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is so appointed.
Now In Re: Mahomed Haji A.I.R. 1923 Mad. 598 deals with facts which are clearly distinguishable, and is therefore not binding upon us. There the question simply was whether a person who had been a Magistrate in Government service but had retired, could be deemed to be a person acting as a Magistrate at the time when, after his retirement, he was appointed as a Special Magistrate under Ordinance 1 of 1922. A negative answer to such a question seems , obvious, and, if we may say so with respect, could well have been given without any reference to the practice of Government in reconferring powers upon a Magistrate after a spell of work in the Secretariat. The question here at issue can be put very simply: 'Was P.W. 9 when he was appointed tahsildar of Shiyali on 4th September 1942 'a person holding an office in the service of Government'? ' It is argued for the appellants that he was not such a person since he was being paid not by Government, but by the Pappanad Estate. Rules 125 and 126 of the Fundamental Rules are called in aid in this connexion. They speak of a Government servant reverting from foreign service and of the liability of the foreign administration to pay him ceasing on a particular day. Rules 120, 121 and 122, on the other hand, indicate clearly enough that, for certain important purposes, a Government servant in foreign service remains a Government servant. We cannot agree that in a matter of this kind the only question to be considered is the ownership of the fund from which the person concerned draws his salary month by month. And, even if that fact were considered of paramount importance, we feel that the correct analysis of the situation is that Government retaining some form of control over P.W. 9's services, had recalled him to direct service under Government and, then having recalled him, had posted him to Shiyali. We are accordingly of opinion that P.W. 9's case falls directly under Section 40 and that the powers granted to him as Deputy Tahsildar, Vedaranyam could lawfully be exercised by him as tahsildar of Shiyali. The confessions which he has recorded are not therefore invalidated on this ground.
4. The reckless charges made by the appellants against the conduct of P.W. 9 in recording the confessions have not been sought to be supported in appeal, and, it almost goes without saying, are founded on no item whatever of the evidence given at the trial. There can be no doubt that P.W. 9 took proper steps to ascertain whether the confessions were voluntary, and that his certificate that they were so is an honest expression of his belief. The argument still remains however that in holding that belief P.W. 9 may have been deceived by the appellants who were careful under police instructions not to disclose what had really preceded their statements. There is no positive evidence to support any case of ill-treatment, threats or inducement by the police. We are convinced, both from a study of the confessions them-selves and from all the facts and circumstances of this ease that the police investigation had been a fair and honest one. In particular we find ourselves in agreement with the learned Judge in holding that these four appellants in view of their educational qualifications are not men who are likely to have been influenced by any police threats or blandishments to confess to crimes which they never committed. We consider that, unless the contents of the confessions themselves prove that they cannot in essential particulars be true, the learned Judge was justified in accepting and relying upon them.
5. The main attack upon the confessions from this point of view is two-fold. (i) They refer to the use of instruments in drilling the hole which could not have been used; (ii) this relating to the confessions of accused 2 and accused 6 only - they refer to the visit of accused 5 to Shiyali on 17th November which has been proved to be false. The first of these criticisms is not of much weight. P.W. 1 says that the hole was 'cleanly drilled,' and must have been drilled with 'a good instrument.' Accused 2 does not describe the instrument actually used, though he mentions the difficulty they experienced in procuring a proper instrument. Accused 7 and 8 speak of an 'iron rod' having been used, after an ordinary 'Rodger's knife' had been found useless. Accused 6 mentions only 'a piece of wrought iron penknife' though it is uncertain whether he meant to say that the hole was actually made with that implement. It is argued that if these accused had really drilled the hole some more specific and appropriate term would have been employed. There is, however, nothing to show that these accused were ordinarily familiar with the technical names for tools, and even P.W. 1, the Permanent Way Inspector himself, who is able to draw the kind of tool necessary, calls it merely a 'rod jumper.' 'Jumper,' we are told, is merely a corruption of a colloquial tamil word. 'Rod,' it will be observed, is the very word the accused themselves used.
6. The second criticism is more important, for if accused 5 could not have visited Shiyali on 17th November-a date which is definitely fixed in this case by the entry in accused 2's diary-suspicion is inevitably thrown upon the whole investigation. The learned Public Prosecutor concedes that accused 2 knew accused 5 well and therefore the reference in the diary could not have been the result of any mistake.
7. It was attempted first to be argued that because the learned Judge has acquitted accused 5 we are bound to hold, in favour of the appellants, that the evidence against accused 5, being rejected as insufficient to sustain his conviction, must in some way positively invalidate the evidence against them. Emperor v. Sanalal (1913) 37 Bom. 658 was quoted in this connexion, but it is obvious that that case deals with special facts and can have no application here. The question here is one not of law but of fact only. Did accused 5 bring gelignite to accused 2 at Shiyali or did he not? Three answers are possible. The first is 'Yes' the second is 'No' - the third is that the matter is doubtful. It is the third answer which the learned Judge gives. That necessarily involves the acquittal of accused 5, but it by no means compels us to hold that accused 5 did not in fact take the gelignite to Shiyali, and therefore that any part of accused 2's and accused 6's confessions or the entry in accused 2's diary is false.
8. Accused 5 in January 1943 was the Subeditor of a paper called 'Dinamani,' one of a group of papers controlled by D. W. 12. The positive case for accused 5 is that work in the offices of these papers which had been suspended since August when the papers ceased publication, began again from 16th November in expectation of the resumption of publication a few days later. On the 16th and 17th conferences were being held in the news papers offices in Madras at which he attended. It was therefore impossible for him to have gone to Shiyali on 17th November. Positive evidence of the presence of accused 5 at these conferences was given by D. Ws. 12 to 15, all men of standing connected with the newspapers. The learned Judge has not said definitely whether he accepted this, evidence or not. We have been urged in appeal to accept it, but it is argued by the learned Public Prosecutor that whatever the standing of the witnesses, the strength of their evidence is not enough to falsify the entry in accused 2's diary. The two significant facts to which he points are (i) that in his very long and elaborate statement at the trial accused 5 made no reference to any 'conference' though such important work at his office as the discussion of future policy at these conferences must have left a strong impression on his mind, and (ii) that no written record of the conference exists. In these circumstances we agree with the learned Public Prosecutor that it is likely enough that the witnesses may have exaggerated the importance of the work that was done on the 16th and 17th, and that they could not have remembered with reasonable certainty whether accused 5 was present at any conferences on the 17th or not. We are not prepared to accept this evidence as proving that accused 5 did not go to Shiyali on 17th November.
9. The entry in accused 2's diary under date. 17th November needs little separate discussion except that we find it impossible to accept accused 2's plea that it is false and that he was compelled to make it, unless we are certain that accused 5 did not visit him. We accordingly agree with the learned Special Judge in accepting the four confessions as both voluntarily made and true. They clearly establish the guilt of accused 2, 6, 7 and 8. That of accused 2 is further corroborated in part by the evidence of P.W. 8, who speaks of the meeting between accused, l, 2, 3 and 4 on what must have been 12th' November - evidence which we see no reason whatever to discredit-by the entries in accused 2's diary and by Ex. J. A pad from which the paper on which Ex. J was written may well have been detached was found in accused 2's house, and P.W. 17 the Government Examiner of Questioned Documents has given evidence that the handwriting in Ex. J is that of accused 2. P.W. 17's evidence has beep attacked, not in its details or on its own merits, but only on the technical ground that before giving his opinion he was made aware in full of the prosecution case regarding Ex. J. We see no reason to disbelieve him. There can be no reasonable doubt that Ex. J though in part somewhat cryptically expressed does refer to the attempt to blow up the bridge and is good evidence against its writer. There is further as against all these four accused the fact that each of them implicates the other three in his own confession. This may be taken into consideration under Section 30, Evidence Act, and in the absence of the slightest suggestion that any of them has any motive at all falsely to implicate any other of them it affords very valuable corroborative material. In these circumstances we consider that the convictions of accused 2, 6, 7 and 8 are amply justified on the evidence and we confirm them.
10. We now come to the case of accused 1. The positive evidence against him consists of P.W. 8's testimony about his visit to accused 2 on 12th November, and, if admitted, of Ex. J, the letter addressed to him by accused 2. It must also be considered how far, if at all, the references to him in accused 2's diary and confession can be used against him. It may be mentioned at once that P.W. 8's evidence and the reference in the diary are in them selves of no value. P.W. 8 does not profess to know what was the subject of any conversation between accused l and accused 2. The diary merely says that accused 1 'came.' Apart from accused 2's confession the only positive part of the case against accused l lies in Ex. J. Exhibit J is a letter written on 15th January and addressed to accused 1. It describes the unsuccessful attempt to damage the bridge, and asks accused 1 to say if he can supply ' another pair of bullocks' which according to the prosecution case, which we accept, means some further explosive substances. The question we have to decide is whether this letter is evidence against accused 1 under the provisions of Section 10, Evidence Act. It is argued for accused 1 that it is not, and reliance is placed for this contention upon a decision of the Privy Council reported in Mirza Akbar v. Emperor . That was a case of murder, and the Privy Council decided that a statement made before an Examining Magistrate by one of the murderers after the murder had been committed, implicating the other in a conspiracy to commit the murder, was no evidence against that other.
11. The learned Special Judge has refused to apply this decision to the facts of the present case on the ground of what appears at first sight a very important distinction and the learned Public Prosecutor supports his reasoning. It is pointed out that in the Privy Council ease the murder had been committed, and therefore no common intention to commit it could remain once the intention had been successfully carried out. Here on the other hand, the intention to wreck a bridge or bridges with explosives had not been carried out, and therefore still remained the common intention of accused 1 and accused 2 on 15th January. The learned advocate for accused 1 argues, however, that the distinction disappears on a closer scrutiny of the facts of this case, and we feel that this argument must be accepted. The vital factor is that accused 1 supplied accused 2 with only one packet of gelignite i. e., with enough explosive to commit only one act of destruction, and it is very explicitly stated in accused 2's confession that when accused l and accused 2 met on 12th November they agreed that accused 1 should supply accused 2 with just this one packet. The common intention, as this necessarily restricted, was to use this one packet for certain purposes, and that intention had been carried out on 14th and could no longer exist on 15th. It may well be that if the failure on 14th had been undetected, or if accused l had been in a position to reply to Ex. J he might have agreed to send more explosives to accused 2 in pursuance of their more general purpose of distinctive action; though it is equally possible that accused 1 would have had nothing further to do with such a bungler as accused 2 had proved himself to be. However, in view of the specific nature of the first charge, the specific reference to the first charge in the fifth charge, and the specific account which accused 2 gives of the agreement between himself and accused 1 it is, we think, impossible in this case to hold that any common intention existed on 15th January which would make Ex. J admissible as against accused 1. If Ex. J is excluded in considering the ease against accused 1, as we now hold that it must be, the question arises whether the confessions of accused 2 can be used against him. Under the ordinary law there is no doubt that it cannot, for no conviction can be based solely on the confession of a co-accused. The learned Special Judge holds however that under Rule 23 of the Ordinance this provision of the ordinary law is annulled. The rule runs as follows:
Notwithstanding anything contained in the Evidence Act, 1872, when the statement of any person has been recorded by any Magistrate, such statement may be admitted in evidence in any trial before a Court constituted under this Ordinance if such person is dead or cannot be found or incapable of giving evidence.
His reasoning is that as the 'confession' is undoubtedly a 'statement,' and as an accused person cannot give evidence in any trial in which he himself is accused Rule 23 permits the use as positive evidence of any statement made by any of the accused and recorded by a Magistrate. We are not prepared to hold that it is the correct interpretation of the rule. It is, of course, undeniable that a confession is a statement, but at the same time it is a very usual and distinctive form of statement which has required for its treatment the enactment of no less than seven sections of the Evidence Act (24 to 30). We think that if the Governor-General had intended to override the provisions of these sections he would undoubtedly have used the word 'confession' in the Ordinance, and not confined himself to the colourless word 'statement'. Although the expression 'notwithstanding anything contained in the Evidence Act' is very comprehensive we feel sure that Rule 23 was really intended not to modify the law as to confessions but to modify the law as to statements embodied in Section 32.
We are thus as the result of our interpretation of Section 10, Evidence Act, and of Rule 23 of the Ordinance, left without any evidence upon which the conviction of accused 1 can be sustained, and we must find him not guilty and acquit him.
12. There remains the question of the sentence imposed upon accused 2, 6, 7 and 8. They are five years' rigorous imprisonment and a fine of Rs. 1000 upon accused 2, and three years rigorous imprisonment for each of the other three. The learned advocates for the appellants question the jurisdiction of this Court to entertain any revision petition on this matter. We think the provisions of the Amending Ordinance 19 of 1943 are clear enough but need not discuss this matter further in view of what follows as we have decided on the merits not to interfere with the sentences. We do not . think such interference is justifiable merely because one Judge's view of what is the correct sentence may differ from another's, but only if a Judge has gravely erred in the exercise of his discretion or has obviously failed to appreciate the nature and gravity of the crime committed. Here the learned Judge has not failed to give reasons for his sentences. There is we think no doubt that he is right in ranking accused 1 as more culpable than accused 2, and accused 2 as more culpable than accused 6 to 8. There are, too, indications in this case that none of these accused intended to cause loss of life and even perhaps that the material damage which the explosion might have caused would not have been very great. P.W. 1 no doubt says that the rails on the bridge would have 'sunk and got displaced,' but it is rather curious that this is not confirmed by P.W. 18, the Inspector of Explosives who merely speaks of 'resulting damage to the surrounding structure.' This is not, we think, a case of skilled criminals plotting with much technical knowledge to bring about far-reaching destruction. In all these circumstances we do not think any sufficient reasons exist for enhancing the sentences imposed upon those appellants whose appeals have failed.
13. We have finally to note two arguments on the question of jurisdiction. The first was that the Special Judge had no jurisdiction to try the accused because the police had originally filed a charge-sheet before the Stationary Sub-Magistrate or Sub-divisional Magistrate, Mayavaram (it was not clearly ascertained which) in the expectation that the accused would be committed for trial. Such an argument seems obviously without foundation, and it was not for a moment asserted that the principle of Section 403, Criminal P.C., was involved in it. The second was that the sentences passed, though purporting to be validated by Ordinance 19 of 1943, cannot be so validated because that Ordinance was ultra vires the Governor-General. This argument was not pressed before us as a Pull Bench of this Court of which one of us was a member, has recently repelled it in In Re: Subbaroyan A.I.R. 1943 Mad. 602 but requests were made that we should issue certificates to the unsuccessful appellants under Section 205, Government of India Act. Certificates will be granted as requested.