DR. PANKAJ KUMUDCHANDRA PHADNISversusUNION OF INDIA MINISTRY OF LAW AND JUSTICE

662                       [2018]
               SUPREME COURT     6 S.C.R. 662
                              REPORTS                      [2018] 6 S.C.R.


A               DR. PANKAJ KUMUDCHANDRA PHADNIS
                                       v.
           UNION OF INDIA MINISTRY OF LAW AND JUSTICE
                (Special Leave Petition (Civil) No. 8293 of 2018)
B                              MARCH 28, 2018
             [S. A. BOBDE AND L. NAGESWARA RAO, JJ.]
             Mahatma Gandhi Assassination case – Prayer of writ
      petitioner to reopen the case – Mahatma Gandhi was assassinated
      about 70 years ago – Trial Court had convicted 7 accused persons
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      for offence of murder and conspiracy and acquitted one – High
      Court had upheld the conviction of 5 accused persons and acquitted
      two accused persons – After about 70 years, writ petition before
      High Court on the basis of a new research – High Court declined to
      entertain the writ petition and to go into two questions raised i.e.
D     whether the four bullets were fired as alleged and whether the Kapur
      Commission Report be opened after the period of 46 years – Special
      Leave Petition – Held: Criminal cases which resulted in conviction
      and even execution of death sentences and the demise of those who
      have served life sentences ought not to be reviewed – Moreover,
      there is no provision in law for such review – A new research into a
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      long concluded matter would not justify a re-initiation of criminal
      investigation – Petitioner’s attempt to reopen this controversy is as
      an exercise in futility – Court must at all cost be wary of such
      contentious issues and must not allow its jurisdiction to be invoked
      for such purposes – SLP dismissed – Criminal Investigation.
F
            Ram Kishan Dalmia v. Justice S.R. Tendolkar
            [1959] SCR 279 : AIR 1958 SC 538 – referred to.
                             Case Law Reference
            [1959] SCR 279             referred to           Para 7
G            CIVIL APPELLATE JURISDICTION: Special Leave Petition
      (Civil) No. 8293 of 2018.
            From the Judgment and Order dated 06.06.2016 of the High Court
      of Judicature at Bombay in PIL No. 32 of 2016.

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                                      662
    DR. PANKAJ KUMUDCHANDRA PHADNIS v. U.O.I MINISTRY                          663
                   OF LAW AND JUSTICE

       A. Sharan, Sr. Adv.(AC), Sanchit Guru, Ms. Garima Bose,                 A
Ms. Aprajita Mukherjee, Samarth Khanna, Advs. for the appearing
parties.
       Dr. Pankaj Kumudchandra Phadnis, Petitioner-in-person.
         The following Order of the Court was passed :
                              ORDER                                            B
         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.               C
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         D
and acquitted two of the accused persons. None of the accused are
alive 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 Petition1 in the year 2016.
                                                                               E
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.
       3. The delay with which the petitioner has raised this issue is
gross. According to the petitioner, he moved the court after doing some        F
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          G
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
1
    PIL No.32 of 2016
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664            SUPREME COURT REPORTS                          [2018] 6 S.C.R.


A     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.
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            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.
C     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
D               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.

E           (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.
F           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.
G     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
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 DR. PANKAJ KUMUDCHANDRA PHADNIS v. U.O.I MINISTRY                               665
OF LAW AND JUSTICE [S.A. BOBDE & L. NAGESWARA RAO, JJ.]

side i.e. the prosecution or defence suggested that four bullets were            A
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            B
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         C
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 group”2
      He, therefore, prayed for a review of this finding or setting up of        D
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
finding is unfair since Shri Savarkar had been acquitted at the trial. There     E
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             F
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.”
       Further, the Constitution bench declined to act on the findings in        G
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
2
    Kapur Commission Report, Page 303 of Volume II
3
    1959 SCR 279 : AIR 1958 SC 538                                               H
666                SUPREME COURT REPORTS                       [2018] 6 S.C.R.


A           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
            punishment” which, in agreement with the High Court, we think,
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            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
C           august or high powered it may be.”
             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
D     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
E     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.
F           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.
            11. We see no merit in this SLP and hereby dismiss the same.

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      Ankit Gyan                                                 Petition dismissed.




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