DR. PANKAJ KUMUDCHANDRA PHADNIS versus UNION OF INDIA MINISTRY OF LAW AND JUSTICE on 28 March 2018

O R D E R

S. A. BOBDE & L. NAGESWARA RAO, JJ.

1. Mahatma Gandhi was assassinated on 30.1.1948; about 70years ago. 9 accused were tried for the conspiracy and murder ofGandhiji. After trial the judgment was delivered by Learned Special Judge,Delhi on 10.02.1949 convicting seven accused and acquitting one.Accused Nathuram Godse and Narayan Apte were given death sentence,four of the accused were given life sentence and remaining one wasgiven a sentence of seven years of Imprisonment. The conviction waschallenged in Punjab High Court in Appeal, High Court vide judgmentdated 21.06.1949 upheld the conviction for five of the accused personsand acquitted two of the accused persons. None of the accused arealive today.

2. The petitioner who describes himself “An Engineer,Management Graduate, Ph.D and a Researcher with passion”approached the High Court by filing a Writ Petition[1] in the year 2016.The High Court declined to entertain the petition and go into two questionsraised i.e. whether the four bullets were fired as alleged and whetherthe Kapur Commission Report should be reopened after the period of 46years.

3. The delay with which the petitioner has raised this issue isgross. According to the petitioner, he moved the court after doing someresearch about the circumstances in which Gandhiji’s assassination tookplace and got convinced about the involvement of an unseen hand in theassassination. We are, however, not satisfied that new research into along concluded matter justifies a re-initiation of criminal investigation orthat anything that might be stated should be allowed to reopen a casesuch as this. Criminal cases which result in conviction and even executionof death sentences and the demise of those who have served life sentencesought not to be reviewed, neither is there a provision in law for review.But it was argued before us that the assassination of Gandhiji was an

1 PIL No.32 of 2016

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Aevent of far reaching consequences in the world and the nation has theright to know the truth. While undoubtedly the nation has right to knowthe truth, such a right cannot be invoked where the truth is already wellknown merely because some academic research raises a differentperspective in law. This would amount to reopening issues based onhearsay.B

4. We are constrained to make this observation because NathuramGodse was convicted on the basis of the evidence of eye-witnesseswho were present at the prayer meeting. The meetingitself was attended by innumerable people. Each one of theeye-witnesses described how Godse moved forward and shot Gandhiji.CAll the evidence reveals that three shots entered the body. It furtherrevealed that:

(i) The weapon of assault was semi-automatic Berreta Pistolwith a magazine that could carry seven cartridges at a time.The pistol was recovered with four live cartridges byDPW-31.

(ii) Two empty cartridge cases were found at the place ofoccurrence; the third was found in the shawl when the lastritual bath was given to the body of Gandhiji.

(iii) The death report mentions three bullet wounds:E

(a) One injury on the right side of the chest near nipple.

(b) One injury below the chest on the right side.

(c) One injury on the right side of the abdomen.

FThere were two exit wounds, one bullet did not exit the body.Thus, only two spent bullet were found at the place of occurrence. Nofourth spent bullet or empty cartridge was found at the place ofoccurrence.

5. The FIR registered at 5.45 pm mentions firing of three shots.

GThe inquest report prepared by Lt. Col. Taneja showed that Gandhijihad suffered bullet injuries from three bullets only. There were six eyewitnesses; PW-31 (Amar Nath), PW-32 (Nandlal Mehta), PW-34 (RatanSingh), PW-37 (Dharam Singh), PW-76 (Raghunath Naik), PW-82(Sardar Gurbachan Singh). Each one of them mentions that three shotswere fired by the sole assailant Nathuram Godse. No one from eitherH

DR. PANKAJ KUMUDCHANDRA PHADNIS v. U.O.I MINISTRYOF LAW AND JUSTICE [S.A. BOBDE & L. NAGESWARA RAO, JJ.]

side i.e. the prosecution or defence suggested that four bullets werefired or that there was a second assailant. The report submitted byLearned Amicus Curiae Shri Amrendra Sharan, Senior Advocate containsa detailed reference to all the relevant evidence in this regard.

6. Another submission made by the petitioner is that this Courtshould review the Kapur Commission findings. G.V. Ketkar, grandson ofLokmanya Balgangadhar Tilak, made a statement that he had knowledgeabout the conspiracy to assassinate Mahatma Gandhi prior to the incident.This raised a political storm and the Kapur Commission was set up interalia to inquire into the conspiracy to assassinate Mahatma Gandhi. Thecommission headed by former Judge of this Court Shri Jivanlal Kapursubmitted its report in 1969. According to the petitioner, the followingfinding of Kapur Commission in its report is unfair since it hurts thesentiments of the followers of Shri Savarkar:- “All these facts taken together were destructive of any theoryother than the conspiracy to murder by Savarkar and his group”[2]

He, therefore, prayed for a review of this finding or setting up ofa new commission.

7. The Learned Amicus Curiae submitted that this finding wasrendered after the demise of Shri Savarkar and no opportunity was givento Shri Savarkar or any of his representatives. He submitted that thefinding is unfair since Shri Savarkar had been acquitted at the trial. Thereis no doubt that this finding does not in any way interfere with the acquittaland is a general observation probably made since Godse and otherswere found to have been associated with Shri Savarkar. It cannot havethe effect of overturning of the finding of the criminal court which acquittedShri Savarkar. Constitution bench of this Court in Ram Kishan Dalmiav. Justice S.R.Tendolkar[3] considered the effect of the findings of aCommission as follows:-

“The Commission has no power of adjudication in the sense ofpassing an order which can be enforced proprio vigore.”

Further, the Constitution bench declined to act on the findings inthe report of Commission of Inquiry; “But seeing that the Commission of Inquiry has no judicial powersand its report will purely be recommendatory and not effective 2 Kapur Commission Report, Page 303 of Volume II

3 1959 SCR 279 : AIR 1958 SC 538

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Aproprio vigore and the statement made by any person before theCommission of Inquiry is, under s.6 of the act, wholly inadmissiblein evidence in any future proceedings, civil or criminal, there canbe no point in the Commission of Inquiry making recommendationsfor taking action “as and by way of securing redress orpunishment” which, in agreement with the High Court, we think,Brefers, in the context, to wrongs already done or committed, forredress or punishment for such wrongs, if any, has to be imposedby a court of law properly constituted exercising its own discretionon the facts and circumstances of the case and without being inany way influenced by the view of any person or body, howsoeverCaugust or high powered it may be.”The submission of the petitioner that Shri Savarkar has been heldguilty for the murder of Gandhiji is misplaced.

8. We are, however, not inclined to enter into the correctness orfairness of the findings in this report. That would be another exercise inDfutility and would none the less pan new fires of controversy. This Courtmust at all cost be vary of such contentious issues and must not allow itsjurisdiction to be invoked for such purposes.

9. We are, therefore, not prepared to accept the fourth bullet theorypropounded by the petitioner. Learned Amicus Curiae categoricallyEsubmitted that perusal of original photograph at the museum leads to nosuch inference. We consider the petitioner’s attempt to reopen thiscontroversy as an exercise in futility. Since the person who took thephotograph cannot be examined and any statement about the photographmade by any expert would not be admissible at this stage.

F10. The court is beholden to Shri Amrendra Sharan, Ld. AmicusCuriae who has painstakingly examined the entire record of the case &even exhibits of the national museum for the assistance of the court.

11. We see no merit in this SLP and hereby dismiss the same.

GAnkit Gyan

Petition dismissed.

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