Dr. Pankaj Kumudchandra Phadnis vs Union of India Ministry of Law and Justice

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

1.Mahatma Gandhi was assassinated on 30.1.1948; about 70 years ago. 9 accused were tried for the conspiracy and murder of Gandhiji. 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 was given a

sentence of seven years of Imprisonment. The conviction was challenged in Punjab High Court in Appeal, High Court vide judgment dated

21.06.1949 upheld the conviction for five of the accused persons and acquitted two of the accused persons. None of the accused are alive

today.

3.The petitioner who describes himself “An Engineer, Management Graduate, Ph.D and a Researcher with passionâ€​ approached the High

Court by filing a Writ Petition1 in the year 2016. The High Court declined to entertain the petition and go into two questions raised i.e. whether

the four bullets were fired as alleged and whether the Kapur Commission Report should be reopened after the period of 46 years.The delay

with which the petitioner has raised this issue is gross. According to the petitioner, he moved the court after doing some research about the

circumstances in which Gandhiji’s assassination took place and got convinced about the involvement of an unseen hand in the

assassination. We are, however, not satisfied that new research into a long concluded matter justifies a re-initiation of criminal investigation

or that anything that might be stated should be allowed to reopen a case such as this. Criminal cases which result in conviction and even

execution of death sentences and the demise of those who have served life sentences ought 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 event of far reaching consequences in the world and

the nation has the right to know the truth. While undoubtedly the nation has right to know the truth, such a right cannot be invoked where the

truth is already well known merely because some academic research raises a different perspective in law. This would amount to reopening

issues based on hearsay.

4.We are constrained to make this observation because Nathuram Godse was convicted on the basis of the evidence of eye-witnesses who

were present at the prayer meeting. The meeting itself was attended by innumerable people. Each one of the eye-witnesses described how

Godse moved forward and shot Gandhiji. All the evidence reveals that three shots entered the body. It further revealed that:

(i)The weapon of assault was semi-automatic Berreta Pistol with a magazine that could carry seven cartridges at a time. The pistol was

recovered with four live cartridges by PW-31.

(ii)Two empty cartridge cases were found at the place of occurrence; the third was found in the shawl when the last ritual bath was given to

the body of Gandhiji.

(iii)The death report mentions three bullet wounds:

(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.

There were two exit wounds, one bullet did not exit the body. Thus, only two spent bullet were found at the place of occurrence. No fourth

spent bullet or empty cartridge was found at the place of occurrence.

5.The FIR registered at 5.45 pm mentions firing of three shots. The inquest report prepared by Lt. Col. Taneja showed that Gandhiji had

suffered bullet injuries from three bullets only. There were six eye witnesses; PW-31 (Amar Nath), PW-32 (Nandlal Mehta), PW-34 (Ratan

Singh), PW-37 (Dharam Singh), PW-76 (Raghunath Naik), PW-82 (Sardar Gurbachan Singh). Each one of them mentions that three shots were

fired by the sole assailant Nathuram Godse. No one from either side i.e. the prosecution or defence suggested that four bullets were fired or

that there was a second assailant. The report submitted by Learned Amicus Curiae Shri Amrendra Sharan, Senior Advocate contains a detailed

reference to all the relevant evidence in this regard.

6.Another submission made by the petitioner is that this Court should review the Kapur Commission findings. G.V. Ketkar, grandson of

Lokmanya Balgangadhar Tilak, made a statement that he had knowledge about the conspiracy to assassinate Mahatma Gandhi prior to the

incident. This raised a political storm and the Kapur Commission was set up inter alia to inquire into the conspiracy to assassinate Mahatma

Gandhi. The commission headed by former Judge of this Court Shri Jivanlal Kapur submitted its report in 1969. According to the petitioner, the

following finding of Kapur Commission in its report is unfair since it hurts the sentiments of the followers of Shri Savarkar:-

“All these facts taken together were destructive of any theory other than the conspiracy to murder by Savarkar and his groupâ€​

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

7.The Learned Amicus Curiae submitted that this finding was rendered after the demise of Shri Savarkar and no opportunity was given to Shri

Savarkar or any of his representatives. He submitted that the  inding is unfair since Shri Savarkar had been acquitted at the trial. There is no

doubt that this finding does not in any way interfere with the acquittal and is a general observation probably made since Godse and others

were found to have been associated with Shri Savarkar. It cannot have the effect of overturning of the finding of the criminal court which

acquitted Shri Savarkar. Constitution bench of this Court in Ram Kishan  Dalmia v. Justice S.R.Tendolkar3 considered the effect of the

findings of a Commission as  follows:-

“The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore.â€​

 Further, the Constitution bench declined to act on the findings in the report of Commission of Inquiry;

“But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio

vigore and the statement made by any person before the Commission of Inquiry is, under s.6 of the act, wholly inadmissible in evidence in any

future proceedings, civil or criminal, there can be no point in the Commission of Inquiry making recommendations for taking action “as and

by way of securing redress or punishmentâ€​ which, in agreement with the High Court, we think, refers, in the context, to wrongs already done

or committed, for redress or punishment for such wrongs, if any, has to be imposed by a court of law properly constituted exercising its own

discretion on the facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever

august or high powered it may be.â€​

 The submission of the petitioner that Shri Savarkar has been held guilty for the murder of Gandhiji is misplaced.

8.We are, however, not inclined to enter into the correctness or fairness of the findings in this report. That would be another exercise in

futility and would none the less pan new fires of controversy. This Court must at all cost be vary of such contentious issues and must not allow

its jurisdiction to be invoked for such purposes.

9.We are, therefore, not prepared to accept the fourth bullet theory propounded by the petitioner. Learned Amicus Curiae categorically

submitted that perusal of original photograph at the museum leads to no such inference. We consider the petitioner’s attempt to reopen

this controversy as an exercise in futility. Since the person who took the photograph cannot be examined and any statement about the

photograph made by any expert would not be admissible at this stage.

10.The court is beholden to Shri Amrendra Sharan, Ld. Amicus Curiae who has painstakingly examined the entire record of the case & even

exhibits of the national museum for the assistance of the court.

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