Lets Kill Gandhi

by Gandhi, Tushar A.

  'En route from Delhi to Bombay, Rana got fever. He went straight to Nagarvala who showed him what investigation had been done and Rana showed the statement of Madanlal which tallied with the information of Savarkarvadi group. Rana told him that he would send him a copy of Madanlal's statement immediately after reaching Poona to enable him to start further investigations in Bombay and Nagarvala asked him to send Poona Police Officers to help him identify those people and he specifically asked for Angarkar. But Rana could not go to Poona because he had developed fever.'

  Rana claimed that since the telephone lines were considered to be unreliable he did not use it to inform Nagarvala or Sanjevi about his information. He cites the example that when after the murder on 31st he was speaking with Nagarvala they had heard the operators giggling as they listened to the two cops speaking.

  Rana's litany of excuses continues: 'It was incorrect that Rana knew about the names of Godse, Apte and Badge and that that fact was also known to Nagarvala. The fact is, as far as I am concerned, I did not know till I reached Poona who the editor and proprietor of Hindu Rashtra was'. This statement itself shows how incompetent Rana was, as a chief of CID based in Poona: he did not know the identity of persons who were actively being observed by his department. Then also if he came to know the identity of the editor and proprietor of Agranee and Hindu Rashtra on reaching Poona whydid he sit on the information? He had reached Poona on the evening of 28th more than forty hours before Gandhi was murdered. There was ample time to send Rao Saheb Gurtu and any other officer from Poona to Delhi who could have been present in Delhi by the morning of the 30th and would have had the opportunity of spotting Nathuram, Apte and Karkare who had gone to Birla House twice on the 30th.

  The Kapur Commission's report states: As far as the Commission has been able to see, Rana made no effort to find out their identity or to take action to get them apprehended'.

  In the last paragraph of his letter Rana justifies his inactions: 'He (Rana) had got his officers on the move on 29th January 1948 within a short time that he had at his disposal. However, I will make it more clear. Rao Saheb Gurtu was there when DSP Poona was called and the names of Apte, Godse and Badge were known from Rao Saheb Gurtu. I also asked him if Angarkar knows all three to which his reply was in the affirmative. There was no question of getting Gurtu and others in Poona on the move because the culprits were hiding in Bombay and the Bombay Special Branch were on their watch'. The letter ended by saying: 'It is really disgraceful in that we have not been able toprevent this, and now I wonder if really we can justify our existence as CIDs'. But the remorseful Rana who suddenly realised how incompetent he was, did not act upon his remorse by resigning.

  Kamte continued his criticism of Rana: 'If telephone conversations were considered undesirable, the D.I.G. should have sent Civil Cipher Code Telegram'.

  Kamte writes: 'The D.I.G. cannot be absolved of his failure to contact the Poona C.I.D. giving instructions to arrest the persons whose names or descriptions were known from Madanlal's statement, it was no use finding fault with Delhi Police Officers. The D.I.G. should have immediately informed Rao Saheb Gurtu. Even if the D.I.G. had fever, he could have sent a code telegram to Rao Saheb Gurtu and his telephoning to the D.I.B. was not the point at issue. The 'only fact' was that he failed to take action immediately after receiving the statement of Madanlal. When he reached Poona, Rana should have asked the A.D.I.G. to arrest the persons whose names and descriptions had been disclosed in Madanlal's statement'.

  After severely criticising Rana for his acts of negligence and sheer incompetence, Kamte suddenly goes soft in his conclusion: 'But what follows takes away the force of the criticism because it says, 'He was being corrected for not realising this so that in future he may not commit these mistakes again'. Justice Kapur adds: 'Unfortunately, there cannot be Gandhis over and over again, at least not in the very near future, and therefore this admonishing was wholly fatuous'.

  'In the opinion of the Commission, the assessment of Kamte was correct and had the D.I.G. taken only the most elementary step of asking his C.I.D. Poona about the identity of the associates of Karkare or Madanlal he would most probably have found out who they were. At any rate if officers could be flown from Poona after the murder to protect the Ministers in the Central Cabinet, the same course could have fruitfully been adopted after the bomb was thrown and Madanlal's statement of the 24th or 25th January had become available'.

  A fourth inquiry was in the form of a cut motion introduced in the Bombay Provincial Assembly. Morarji Desai replied to questions and gave a report of the actions of the Bombay provincial government. He informed the assembly about what Prof. Jain had told him on 21 January 1948 but denied that Prof. Jain had told him that he had given this information to Jayprakash Narayan too. Jain's name was not disclosed to the police till the 30th because Jain had requested himnot to do so. He then said that whatever information he had received he had conveyed to Patel at Ahmedabad. There are two discrepancies in Desai's statement. One was that while testifying before the Kapur Commission both Shankar, Patel's secretary, and Manibehn, Patel's daughter, said that they did not recall Desai having told Sardar about Jain's information. Second, Desai did not rush to Ahmedabad to inform Patel, the trip was for another purpose. Patel had agreed to attend the foundation stone-laying ceremony for a hospital in Ahmedabad. Desai was a trustee of the trust which was building the hospital. One wonders what made him mislead the assembly? Desai then claimed that he had also informed Gandhi about the threat to his life and had requested him to allow the police to take appropriate measures to protect him, but Gandhi had refused. Desai then went on to defend his police officers. He said: 'I told the police officer to take action against everybody who came under suspicion. Jain had not said that he gave me names of two other persons who ultimately were found to be in the conspiracy and who had nothing to do with the offence.... I have stated what steps were taken by the police force. I know all that because I was inquiring of the police officer constantly as to what was being done not only before the incident, but even afterwards when the offence was being investigated, because I wanted to give him the benefit, of my views and knowledge. I found that they were constantly on the move. Even at midnight I found that they were on duty. I found that police were not even caring for their meals. They had so much concentration on their work. That is why I cannot say that they failed in their duty'.

  When the Kapur Commission summoned Manu Gandhi to testify, Desai called her and instructed her to say that since she was very young at the time of Gandhi's murder she could not remember anything. Manubehn told him that she was 'Bapu's daughter and would only tell the truth, nothing less and nothing more.' What was Desai apprehensive about?

  Nagarvala was asked to explain his actions. His explanation was sent to the Government of India by Dehejia with his letter, dated 25 March 1949. Nagarvala sets out the steps taken by him in the investigation, if one may so call it, which he conducted in Bombay after Desai gave him information about Karkare, etc. It is really a copy of the crime report from 20-30 January 1948. With this letter he attached his letter to Sanjevi, dt. 30 January 1948. He also attached certain other documents: a list of places watched and names of persons watched during that period; his statement in court, portions of statement of Inspector Pinto and DSP Jaswant Singh.

  'When his explanation, was received in the Secretariat, there were certain notings on it which were adverse to what Nagarvala had done. The office pointed out the various infirmities in the investigation which were worth mentioning.

  (1) Badge was well known to D.S.P. Poona. Why was he not contacted and why was Karkare made the central figure and the case started with Madanlal?

  (2) Why did the Delhi police not bring Madanlal's statement on 22 January 1948?

  (3) What effort were made to establish contact with Delhi and what action did Rana take on Madanlal's statement?

  (4) Did Nagarvala spot an editor with initials NVG from Poona who was Madanlal's companion?
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br />   (5) Did Nagarvala go to Ahmednagar to look for Madanlal's links there? Who was handling the investigation at Ahmednagar and Poona? If Badge was seen in Ahmednagar three days before and he was suspected, why was no action taken?'

  When this note went to Morarji Desai, he held a discussion with his secretary and finally it was decided that it would be sent along with all the attachments to the Government of India.

  Nagarvala raised objection to the commission and challenged its jurisdiction to make an inquiry into the conduct of the police, i.e., its shortcomings, its inaction or its acts of commission or omission, its negligence in the matter of investigation of the bomb case. Nagarvala's main contention against the jurisdiction of the commission was based on the ground that after the strictures passed by Judge Atmacharan, the high court came to different conclusions; and that once a court or a competent tribunal has come to the conclusion on a point in controversy in a criminal matter that becomes res judicata and cannot be reopened. The decision is binding and conclusive in all subsequent proceedings between the parties to the adjudication. This seems to be Nagarvala's desperate attempt. Justice Kapur cited precedents and previous judgements to establish the legality of the commission's jurisdiction.

  7.5 'During the trial, or at the appellate stage, whether the police investigated a matter properly or not could not be a matter materially and substantially in issue because on the efficient investigation of a case does not depend the acquittal or otherwise of an accused person, although it has been ruled in certain jurisdictions that evidence improperly collected or illegally obtained cannot sustain a conviction. In the inquiry before this Commission, the matters in controversy are (1) whether the investigation in the bomb case was proper or improper; (2) whether as a consequence of it or even without that matter being taken into consideration, the police had given proper protection to Mahatma Gandhi; (3) whether by improper or negligent investigation the accused were allowed to return to Delhi and commit the murder; and (4) whether murder could, by adequate measures being taken by the police, have been prevented. This may depend upon whether the investigation which was carried on from the time that the bomb was thrown at 4.15 p.m. (This is an error, Madanlal exploded the gun cotton slab at 5.15 p.m.) on 20th January to 30 January 1948, was efficient or not; and upon the question whether the police by its inaction, improper investigation, allowed the persons in the conspiracy to escape and remain undetected. In the opinion of the commission that matter was not before the high court and any decision given by the high court is not res judicata within the rule laid down by the Supreme Court in Pritam Singh's case. Besides there is no lis before a Commission of Inquiry'.

  7.6'Investigation by the police and the conduct of the inquiry or trial in a case are two separate compartments treated in the Code of Criminal Procedure and the Courts except to the extent so provided in the Code have no jurisdiction on police investigations which was pointed out by the Privy Council and Khawaja Nazir Ahmad's Case. 71 I.A. 203; A.I.R. 1945 P.C. 18'.

  7.7 'Judge Atmacharan had found the police guilty of inaction and therefore, guilty of not having prevented the death of Mahatma Gandhi. The High Court held that those remarks were not justified although no petition had been filed before the High Court for the expunction of those remarks'.

  7.8 'It may be remarked that res judicata in criminal cases has the effect of preventing double jeopardy, i.e., the person acquitted cannot be again tried for the same offence. But there is nothing to prevent the sovereign from satisfying himself by collateral proceedings that the conviction was not improperly obtained, in order to exercise its powers of mercy or paying compensation to the wrong man. Similarly, if an accused has been acquitted by improper means, the sovereign may try to find out the illegality.

  7.9 In the High Court after dealing with the question of negligence or otherwise of the police, Justice Bhandari said: 'The evidence on record satisfies me (a) that no opportunity was afforded to the police to explain the circumstances which prevented them from apprehending Nathuram before the 30th January and there by saving the life of Mahatma Gandhi; (b) that Madanlal failed to supply the names of the conspirators to the police; (c) that even if those names were supplied it was extremely difficult, if not impossible, for the police to arrest Nathuram who was going about from place to place under assumed names and who was determined to assassinate Mahatma Gandhi even at the risk of losing his own life'.

  Justice Achchruram said: 'Before concluding I want to advert some remarks made by the learned Special Judge as to the slackness shown in the investigation during the period between the 20th and the 30th January 1948 but for which in the view of the learned Judge, the tragedy could have been prevented. I must say that I have not been able to discover any justification at all for these remarks which in my judgement were wholly uncalled for.'

  Justice Khosla said: 'I concur with the conclusions arrived by my learned brothers Bhandari and Achchru Ram JJ.'

  Then the Kapur Commission's Report gives a detailed summary of why Justice Bhandari absolved the police; Justice Achchruram did not give any new reasons.

  7.12 'This Commission is not sitting as a Court of Appeal against the High Court nor is it open to find fault with the findings of the High Court, still less to readjudicate on matters already dealt with by it. But this principle applies to matters which deal with the guilt or innocence of the accused or matters so connected with the decision of that question as to be part of it, but not to matters wholly subsidiary which do not affect the merits of the case e.g. the commission of the offence and those who committed it. Therefore, it is open to the sovereign or the State to find out through the agency of a Commission whether its protective and investigational machinery was properly geared to the protection of the Mahatma. In the opinion of the Commission the finding of the High Court about the quality of investigation is not binding on it, because it was not a matter materially and substantially or even collaterally in issue at the trail which falls within the rule of res judicata as stated in Sambasivam's Case.''

  7.13 'As has been said, the rule res judicata is inapplicable and there is no rule of propriety or fairness which would bar such an inquiry.'

  7.14 'The objection on the ground of want of jurisdiction is,therefore, overruled.'

  8.3 'It is further alleged that the police acted inefficiently, ineptly and unskilfully and the Home Minister of Bombay was complacent and even if he did convey the information given by Prof. Jain to the Police, he was bound and required to supervise the investigation and keep a watchful eye on it and that the ineptitude of the police in the matter of investigation made the Minister responsible, and further that the Minister should have ordered the arrest of the persons named by Madanlal and by Prof. Jain and seen to it that they were arrested and their associates were quickly found and arrested. And if the Police bungled, the responsibility is of the Minister, at least the failure of the Police falls under what is called the 'ministerial responsibility to the Legislature'.

  The Commission has cited comments of two witnesses on this issue, one the eminent statesman and constitutional lawyer, K.M.Munshi and R.N. Bannerjee, ICS, who was Home secretary to the Government of India.

  8.15 of the Commission's Report states: 'The opinion of K.M.Munshi may be quoted in verbatim:

  'If as a Minister, I get a report about somebody's life being in danger, the first thing that I would do would be to pass on the report to the Inspector-General of Police to look into its trustworthiness and ask him to take such steps as the law allows. If, on inquiry, he finds that the report is baseless, he can do nothing. If he finds that there is something in the report, then he can take action and keep the Minister informed.

  'If the Minister ordered arrests of persons on reports, that would be the end of law and order in the country. I would not do it. The Home Minister can only put his police in charge of the case; he cannot do anything more except to use the instrument of the police machinery to verify and take action'.

  8.16 R.N. Bannerjee's opini
on is as follows:

  'If any information had been given as it is now stated that it was given by Prof. Jain, then proper directions should have been given to the Secretary or to the Head of the Police and he should have been asked to submit his report within a short but specified time and the progress of the investigation should have been watched and more interest taken as to what the police was doing.

  'As far as I can see, Bombay Government had great faith in the ability of Nagarvala. If the Home Minister had given him instructions then it would be right in saying that he had done what he should have done i.e. in leaving the matter in the competent hands of an officer of the ability of Nagarvala'.

  8.17 He was asked by the Commission if he did not think it necessary to call up the police officers to whom the information had been given in Madanlal's case and ask them what they were doing, his answer was:

  'Those were the days when the Ministers had just come. To the best of my recollection I must have prepared a note suggesting close attention to the matter. I have not the record with me and therefore I cannot say what exactly I wrote. But it is correct that we relied upon the efficiency of the police which proved wrong'.

  8.20 In reply to a further question as to why sufficient interest was not taken in finding out the progress of the bomb case as it was done after the murder case. Banerjee replied: