New Delhi: The Supreme Court today asked some searching questions on a plea seeking reopening of the probe into Mahatma Gandhi’s assassination and appointed senior advocate Amrender Sharan as amicus curiae to assist it in the matter.
A bench comprising Justices S A Bobde and L Nageswara Rao was initially of the view that “nothing can be done in law” in the case which was decided long ago, but later told Sharan, a former additional solicitor general, that its observation was not binding on him to make an assessment of the matter.
The bench, which posted the matter for further hearing on October 30, raised a volley of questions including how evidence could be collected now to order further investigation into the case which had led to the conviction and execution of Nathuram Vinayak Godse and Narayan Apte on November 15, 1949.
Gandhi was shot dead at point blank range in New Delhi on January 30, 1948 by Godse, a right-wing advocate of Hindu nationalism.
The bench, which during the hearing observed that “we are not inclined to go into it”, later changed its mind after the petitioner said he should be given a time as his appeal before the National Archives and Research Administration, Maryland in the USA, was yet to be decided for de-classifying of certain sensitive documents connected with the assassination.
The petition filed by Mumbai-based Dr Pankaj Phadnis
, a researcher and a trustee of Abhinav Bharat, has sought reopening of the probe on several grounds, claiming it was one of the biggest cover-ups in the history.
He has questioned the ‘three bullet theory’ relied upon by various courts of law to hold the conviction of accused Godse and Apte, who were hanged, and Vinayak Damodar Savarkar who was given the benefit of doubt due to lack of evidence.
He has also claimed that there could be a third assassin other than the two convicted persons and submitted that there was a need to investigate whether the Office of Strategic Services (OSS), an intelligence agency of the US during World War II and a predecessor of the Central Intelligence Agency (CIA), had tried to protect Gandhi.
At the outset, Phadnis sought some time to file certain additional documents to buttress his plea that reopening of investigation in the assassination case was required.
“What can we do now at this stage,” the bench asked the petitioner, who said that after he filed the plea, he has got certain crucial documents related to the case.
“Why should we reopen this now? We will give you as much time you want but you tell us why should we reopen a finding that has been affirmed,” the bench asked the petitioner.
When the court asked the petitioner about the law of limitation, Phadnis said he was aware of it.
He also referred to the report of Justice J L Kapur Commission of Inquiry, which was set up in 1966, on the issue.
He argued that appeals filed by the convicts in the assassination case were dismissed in 1949 by the East Punjab High Court, following which the Privy Council had sent the matter back on the ground that the Supreme Court of India will come into existence in January 1950.
“The Supreme Court never adjudicated this matter,” Phadnis claimed and added that the Kapur commission report has not come to the apex court.
“The observations (in the report) may or may not be accurate but the fact is that execution was carried out by judgement of a sessions court which was confirmed by the high court,” the bench said.
When he said that another person might be involved in firing shots at Mahatma Gandhi, the bench said “we want to go by the law and not by passion”.
“You say that there was someone else, a third person who killed him (Gandhi). Is that person alive today to face the trial,” the bench asked.
Responding to the query, Phadnis claimed that the assassination could have been carried out by an organised body, named ‘Force 136’ (a British special intelligence unit).
However, the bench sought to know about the identity of the person and said “we cannot convict an organisation. Do you know whether that person is alive?”
Phadnis, however, said he did not know if that person is alive but probe should be ordered to ascertain the truth.
During the hearing when he raked up the issues between India and Pakistan, the bench said, “your motive may be nobel, We are not questioning your motive or your desire to have peace between the two countries”.
The petitioner thereafter referred to the telegram sent from the US Embassy on January 30, 1948 and said that Herbert Tom Reiner, Disbursing Officer, was within five feet of Gandhi when he was shot, and with the aid of Indian guards, he had apprehended the assassin.
However, the bench said, “Is Reiner alive today?”
When Phadnis said Reiner had died recently, the bench said, “then who will give evidence? Who is going to probe what Reiner saw?”.
To this, he said, “the evidence are documented records” and forensic examination would establish how many shots were fired at Gandhi on that fateful day.
At the fag end of the hearing, the bench told the petitioner that it needed legal assistance in the case and asked Sharan, who was present in the court room, to assist it.
“Mr Sharan, will you please assist us? This is a matter of great passion for him,” the bench said.
The senior counsel said he would assist the top court and sought two weeks to go through the documents filed by Phadnis.
Phadnis has challenged the decision of the Bombay High Court which on June 6, 2016 had dismissed his PIL on two grounds — firstly, that the findings of fact have been recorded by the competent court and confirmed right up to the apex court, and secondly, the Kapur Commission has submitted its report and made observations in 1969, while the present petition has been filed 46 years later.
