Devi Prasad Singh, J.@mdashSome people born with greatness, some acquire greatness but there are some, though born with greatness but supplement their personalities by their good deeds become outstanding, leaving indelible ink in the time frame of history. The political, religious, social, economic and cultural phenomenon are exploited by such personalities and remoulded in national and social interest. Netaji Subhas Chandra Bose (in short, Netaji) was such a great personality in his own right and was a beacon across the world. It was he who filled the young generation under colonial rules with the ferver of nationalism. Someone may agree or not but Netaji Subhas Chandra Bose defined the nationalism in his own way and taught to fight for the cause of nation till last breadth of life.
Netaji may be glorified from a couplet of Kalidasa, to quote :
"Even His perceivable greatness is inscrutable. But His true glory as indicated by revealed scriptures and devout cogitation is beyond even our imagination"
2. In Indian history, Netaji Subhas Chandra Bose is the only leader whose time of death in public mind is not certain even till date. Different Commissions appointed by the government and finding recorded thereon could not touch the peoples "heart and sentiments" and make them believed that Netaji died in air crash in 1945. Last controversy with regard to his survival relates to a person, namely Gumnami Baba or Bhagwanji who lived in the city and District Faizabad for more than three years and alleged to have left for heavenly abode on 18.9.1985 and cremated at Guptarghat in city Faizabad, U.P. It is believed that Gumnami Baba was Netaji Subhas Chandra Bose who took last breadth in city Faizabad. Without entering into the controversy or identity of the person (Gumnami Baba) or recording a finding thereon, it shall be appropriate to look into the dispute raised before this Court.
BACKGROUND OF LITIGATION
3. One Gumnami Baba alias Bhagwanji had lived in a house, namely ''Ram Bhagwan'', in city and District Faizabad for more than three years. It is said that during the period of his stay in city Faizabad, U.P. several prominent persons, friends and relatives of Netaji used to visit Gumnami Baba at Faizabad. It was common perception that Gumnami Baba was Netaji Subhas Chandra Bose who was leading estic life being dischanted with politics/public life.
4. After the death of Gumnami Baba on 18.9.1985, there arose lot of dispute with regard to household goods of Gumnami Baba. The real niece of Netaji Subhas Chandra Bose Ms. Lalita Bose and two others have filed Writ Petition No.929(M/B) of 1986 in this Court with the prayer that appropriate enquiry may be conducted with regard to Gumnami Baba and inventory be prepared by an Advocate Commissioner of the goods of Gumnami Baba lying in Ram Bhawan, Faizabad and it should not be auctioned. It was further prayed that the goods may be handed over to National Archives for its proper look after evaluation and preservation.
5. Writ Petition No.929(M/B) of 1986 was filed by Miss Lalita Bose, daughter of late Suresh Chandra Bose, happened to be the brother of late Netaji Subhash Chandra Bose and Dr. M.A. Haleem, Vice President, All India Socialist Party and Shri Vishwa Bandhav Tewari, vice President, All India, Subhash Mukti Vahani. The petitioner No.1 Miss Lilita Bose asserted that she has right to property of late Bhagwan Ji in case after due enquiry, it is found that late Gumnami Baba @ Bhagwan Ji was Netaji Subhash Chandra Bose. Prayer has been made for making of inventory and preservation of property. While filing the writ petition No.929(M/B) of 1986, the petitioners were impressed by series of 17 articles published in Northern Patrika from 20.12.1985 to 23.1.1986 under the caption "The Man of Mystery". After cremation of Gumnami Baba on 18.9.1985, things became more worse, more so when none else than niece of Netaji Subhash Chandra Bose approached this Court and tried to ventilate her grievance with regard to identity of late Gumnami Baba.
6. On 10.2.1986, an interim order was passed by this Court in Writ Petition No.929(M/B) of 1986 and the District Magistrate, Faizabad was directed to prepare an inventory of the goods of Gumnami Baba who resided in Ram Bhawan, Faizabad. After preparing the inventory, the goods are to be shifted to treasury to keep up in safe custody. Accordingly, the goods have been kept in the Collectorate Treasury of Faizabad. The order dated 10.2.1986 passed by the Division Bench of this Court is reproduced as under :
"APPLICATION FOR INTERIM RELIEF:
Lucknow Dt. 10.2.1986
Hon''ble S.S. Ahmad, J.
Hon''ble G.B. Singh, J
Notice on this petition has been accepted on behalf of the opposite parties by the Chief Standing Counsel who may file counter affidavit within six weeks. The petitioners may file rejoinder affidavit within 10 days thereafter. The petition shall be listed sometime in the month of April 1986 before us.
In the meantime, the District Magistrate, Faizabad opposite party No.4 is directed as under :
(i) An inventory of the articles left by the nameless saint at Ram Bhawan Faizabad shall be prepared or got prepared through an Advocate Commissioner who may be appointed either by the District Magistrate himself or he may get such an Advocate Commissioner appointed by the District Judge, Faizabad and;
(ii)After the inventory has been prepared the articles shall be shifted from Ram Bhawan, Faizabad to the Treasury to be kept in safe custory under his own lock and seal.
This arrangement shall continue until further orders of the Court.
Sd. S.S. Ahmad.
Sd. G.B. Singh
10.2.1986
7. In pursuance to the interim order passed by this Court, inventory was prepared and a counter affidavit has been filed on behalf of opposite parties 1, 3 and 4. In para 3 of the counter, it is stated that late Gumnami Baba lived a secluded life at Ayodhya, then in Faizabad, i.e. Ram Bhawan. One important thing which has been admitted while filing counter affidavit is that there are number of materials which corelate to Netaji and on 23rd January every year, special function was held in Ram Bhawan. The 23rd January happens to be birthday of Netaji Subhash Chandra Bose. In the said ceremony, several persons were used to assemble and participated including the family members of Netaji Subhash Chandra Bose. The petitioners'' counsel submits that there was no occasion to celebrate the date of birth by the family members and friends of Netaji at Ram Bhawan, Faizabad in case Gumnami Baba would not have been late Subhash Chandra Bose. For convenience, para 3 of the counter affidavit of writ petition No.929(M/B) of 1986 is reproduced as under :
"3. That it would be expedient for the just and proper disposal of the case that certain relevant facts are brought to the kind notice of this Hon''ble Court before giving parawise reply to the writ petition.
(a) On 16.9.85 at about 9.40p.m. The death occurred of a person who was known to the followers as "Bhagwan Ji". This person had been living in Faizabad City in a house called "Ram Bhawan" which is located adjacent to the Roadways Bus Station, Faizabad
(b) That it has come to light that the above "Bhagwan Ji" was cremated in accordance with Hindu rites in the evening of 18985 at Guptar Ghat Faizabad in the presence of several persons belinging to Ayodhya and Faizabad. Prominent amongst those who were present were Sri Ram Kishore Panda, Dr. Raghunath Prasad Misra, Dr. Virendra Rai, Dr. P. Banarjee and Sri Gopal Krishna Srivastava.
(C) That a few weeks after the death of the above "Bhagwan Ji" a controversy started in Faizabad when the local daily "Nai Log" printed a story claiming that the person known as "Bhagwan Ji" who had died on 16.9.85 was, in fact, none other than Sri Subhash Chandra Bose, "Neta Ji". This controversy continued for quite a long time in the newspaper and some political workers and social organisers contacted District Magistrate, Faizabad and requested him that in the interest of the public the circumstances of the death of the above person should be thoroughly scrutinized and all the items, which he had left behind, should similarly be inspected so that the controversy about this person being Subhash Chandra Bose could be settled.
(d)That inquiry conducted into the back ground of this person revealed that he had come from district Basti to Ayodhya in the year 1974. After his arrival in Ayodhya the above named "Bhagwan Ji" contacted Sri Ram Kishore and through him he rented a part of the building known as Lakhnauwa Mata in Ayodhya. "Bhagwan Ji" stayed in this premises for many years after which he shifted to the house of Sardar Gur Bux Singh Sondhi at Brahma Kund, Ayodhya for a period of 3 � years. During his stay in the house of the above Mr. Sondhi "Bhagwan Ji" became involved in a litigation and because of this he left the premises and was brought by Dr. Raghunath Prasad Misra, a retired Surgeon of district hospital, Faizabad to his present lodging in the out house of a building known as "Ram Bhawan".
(e) That during the inquiry it has come to light that the above named person had peculiar habits. One of which was that he never appeared before any person and always kept himself behind a curtain. It has further come to light that there were three persons who were close to this man and they were Dr. Avitra Mohan Roy who is resident of 517 Dum Dum Park, Calcutta, Dr. Raghunath Prasad Mishra and Dr. P. Banarjee both of Faizabad. Consequent to the demand raised by political persons and other members of the public a thorough search was made of the premises occupied by the late person and a detailed list items was prepared. Since then the entire premises had been sealed and a police guard posted to ensure the safety of the items. In compliance of the Hon''ble Court''s order the learned District Judge, Faizabad had appointed Sri S. N.Singh, Advocate the then President of District Bar Association, Faizabad as Advocate Commissioner for preparing an inventory of all the article which was kept in locked house of nameless saint. Advocate Commissioner giving notice to all the interested parties prepared an inventory of article which was found in the house and kept it in a sealed boxes. The sealed boxes were kept in double lock of District Treasury, Faizabad. A true copy of the inventory which was prepared by the advocate commissioner is being annexed herewith as Annexure No.CA1 to this affidavit.
(f) That during the search a large number of belongings and literature associated with the "Indian National Army" in general and late Sri Subhash Chandra Bose in particular came to light, there were a large number of family photographs, reports of "Inquiry Commission" relating to the death of ''Neta Ji'' etc. It also transpired that a special ceremony used to be held in the room of "Bhagwan Ji" on every 23rd of January which incidentally is the birth day of Sri Subhash Chandra Bose and on this day no person of Faizabad were apparently allowed to visit him. Some persons from Calcutta used to come and stay with him for that day."
8. While filing counter affidavit, on behalf of the State Government, it is denied that Gumnami Baba was Netaji Subhash Chandra Bose which seems to have been refuted by the petitioners.
9. Ms. Madhumita Bose while defending the prayer in writ petition No.929(M/B) of 1986 submits that the overwhelming material on record not only requires preservation of household goods of Gumnami Baba but also requires thorough probe.
10. The argument of Smt. Madhumita Bose has been refuted by Sri H.P. Srivastava on behalf of the Government of U.P. as well as learned counsel Sri I.H. Farooqui, representing Union of India.
11. Writ petition No.10877 (M/B) of 2010 has been preferred by the society, namely, Subhash Chandra Bose Rashtriya Vichar Kendra through its Secretary Shri Shakti Singh, having office in Ram Bhawan, Faizabad itself with the prayer that the articles/goods locked in the Treasury of Faizabad be photographed and certain articles taken by the Mukherjee Commission should be brought back to State of U.P and the entire goods may be kept in National Museum or be handed over to the petitioner society which was registered in the year 1984.
12. Heard Ms. Bulbul Godiyal and Ms. Madhumita Bose, learned counsel for the petitioners and Mr. H.P. Srivastava on behalf of the State of U.P and Mr. I.H. Farooqui and Mr. Alok Kumar Singh, learned counsel for the Union of India.
13. It may be noted that the death of Netaji Subhas Chandra Bose was shrouded in mystery and the Government of India appointed three Commissions, i.e. Shahjawaj Committee constituted on 5.4.1956, Khosla Commission in the year 1970 and lastly Mukherjee Commission in the year 1999(Justice M.K. Mukherjee, Retired Judge, Supreme Court of India) but even then, controversy could not be solved.
14. It is alleged that during the course of enquiry, ''Mukherjee Commission'' had taken away some articles of Gumnami Baba but till date, not returned the same. It is further submitted that since the articles of late Gumnami Baba was kept in treasury of district Faizabad in pursuance to the order passed by this Court in writ petition No.929(M/B) of 1986, it was ''case property'' and could not be taken without permission of this Court. Further submission of the petitioner''s counsel is that in any case, if during the course of enquiry, Some items were taken away by Mukherjee Commission, then that should have been returned to the treasury of district Faizabad.
Subject to aforesaid background, present writ petition calls for adjudication.
15. By an interim order, we have directed the District Magistrate to videograph and also photograph the entire available articles and keep them under safe custody.
BRIEF BIOGRAPHY OF NETAJI SUBHAS CHANDRA BOSE
16. To understand the controversy in a better way, it shall be appropriate to consider the life history of Netaji Subhas Chandra Bose in brief as well as the finding recorded by different Commissions/Committees appointed by Government of India and necessity to preserve and protect the articles of late Gumnami Baba who left for heavenly abode while residing in district Faizabad.
17. Subhas Chandra Bose, a great nationalist, patriot and a great son of Mother India was born on January 23, 1897 when the country was celebrating the Diamond Jubilee of Queen Victoria''s reign. At that time, Lord Elgin II was the Viceroy of India. Subhas Chandra Bose was born in Cuttack presently in State of Orissa having seat of High Court. Cuttack as well as State of Bihar was part of the Presidency of Bengal till 1905. Subhas Chandra Bose was born in first hour of noon on Saturday. He was the sixth of eight sons and ninth child of fourteen children of the parents (eight sons and six daughters). He belonged to famous Bose family. Subhas Chandra Bose inherited administrative and warlike qualities from his ancestors. His father''s name was Rao Bahadur Janakinath who joined the Bar as an advocate at Cuttack in 1885, i.e. the year of the birth of the Indian National Congress and built up his flourishing profession and became the first nonofficial Chairman of the Cuttack Municipality in 1901 and later on nominated as Member to the Bengal Legislative Council in 1912 and honoured with Rao Bahadur. He resigned from Bengal Legislative Council in 1917 owing to his differences with the District Magistrate and later on renounced the title of Rao Bahadur in 1930 during freedom movement. This shows the selfprestige, selfpride and reluctance for power and honours inherited by the family. The mother of Subhas Chandra Bose was Prabhavati, a housewife belonging to aristocratic family of the Dutts of Hathkola, a northern suburb of Calcutta. He studied in Baptist Mission School, Cuttack for seven years. During childhood, he was influenced by Lala Lajpat Roy, Bal Gangadhar Tilak, Vipin Chandra Pal etc. Later on, he joined Revenshaw Collegiate School, Cuttack and studied there upto 1913 having great command over English. He was born spiritualist and inherited not only from his parents but also from Sharada. He was very much influenced by Swami Vivekanand and barely at the age of 15, the Vedant, Philosophy of Vivekanand made him decisive and straightforward. Initially, he was inclined to lead spiritual career being influenced by Swami Vivekanand and Swami Ram Krishna Paramhans but later on, the patriotism indebted him and compel to change the views and joined independence movement. He obtained second rank in matriculation examination of 1913 among 10,000 students and left Cuttack to join Presidency College, Calcutta in 1913. Later on being influenced by Shri Arvind Ghos, another patriot, saint of Bengal chosen Philosophy as one of his subject, passed Intermediate in First Division and later on obtained M.A. Degree with Experimental Psychology. It was in the year 1919, Rowlatt Act was passed and Jalianwala Bagh massacre took place. General Dire was removed but no action was taken. It shocked Subhas Chandra Bose. Father being deeply concerned with Subhas Chandra Bose''s nationalistic approach and to join freedom struggle sent him outside country to keep him aloof from politics. To honour the father''s command, he joined Cambridge and appeared in I.C.S. Examination. He appeared in I.C.S. Examination in July, 1920 and the result was announced on 22.9.1920. He passed the I.C.S. Examination, that too with fourth rank. He wrote his brother Sarat Chandra that nothing gained by passing I.C.S.. He wrote, though there shall be a nice fat income with a good pension but after all it shall be service of Britishers and end of his life. Though social service may bring all kind of worldly comfort but it cannot be opted at the expense of own soul. Subhas declined to continue with I.C.S. The ardent patriotic spirit in Bose forced him to resign from I.C.S for cause of Nation and accordingly, he resigned from I.C.S. on 22.4.2021 and expressed regret to his father. Deshbandhu Chitta Ranjan Das was his political master happened to be Congress leader of Bengal. Subhas Chandra Bose left behind him valuable literature, I.e. the India Struggle 192034 and its another part covering period from 193542, the combined edition of which was published in 1952.
18. Subhas Chandra Bose firmly stressed for complete national independence of India as the goal in 1928 much before the resolution of Indian National Congress. Because of ill health, he left for Britain on 8.1.1938 for treatment where he was informed finally of his election in absentia as the President of Indian National Congress. In 1939, against Gandhiji''s wishes, he contested for the post of Congress Presidency. He defeated Dr. Pattabhi Sitaramayya who happens to a recommendee of Gandhiji. Bose won with 1580 votes against 1375 and it became extraordinary event in the history of Congress. On account of ideological difference with Gandhiji, he resigned as President of the Congress and created a new block, namely Forward Block within the Congress and later on resigned. In 1940, during agitation, Subhas Chandra Bose was arrested and went on hunger strike. He declared voluntary fast on 29.11.1940 and communicated his decision through a letter dated 26.11.1940. While addressing the countrymen, Subhas Chandra Bose said, to quote :
"To my countrymen I say, ''Forget not that the greatest curse for a man is to remain a slave. Forget not that the grossest crime is to compromise with injustice and wrong. Remember the eternal law : You must give life, if you want to get it. And remember that the highest virtue is to battle against inequity, no matter what the cost may be."
19. Every word and line of the letter of Subhas Chandra Bose united the whole nation, compelling the then government to release him on 5.12.1940. He has been one of such freedom fighter who fought against the Britishers within the country and outside country from Germany, Japan, South East Ashia through Indian Independence Leagure and Indian National Army.
20. During house arrest of his own house in Elgin Road, Calcutta, he absconded on 17.1.1941 and reached Germany via Gomoh, Kabul( Afghanistan). In Kabul, he stayed 46 days and made arrangement to escape for Berlin with the help of his host Uttam Chand and one Bhagat Ram. He reached Berlin on third April via Masco in two months 11 days. His broadcast from Germany during World WarII made him an international freedom fighter. He was a symbol of Hindu Muslim unity in those days and in spite of ideological difference, he regarded Gandhiji with the core of heart which may be noticed from his biography. He left Germany in a submarine on the invitation of Indian Independence League and took its charge and constituted Indian National Army. He liberated island of Andman and Nicobar as Commander InChief of INA. He also liberated Manipur area of India from colonial rule.
21. With the defeat of Japan because of use of Atom Bomb over Hiroshima and Nagasaki in August, 1945, Subhas Chandra Bose disband INA. The provincial government of Subhas Chandra Bose was recognised by Japan on 23.10.1943 along with Germany, Italy, Burma, the Philippines, Nanking, Croatia, Manchukuo and Siam. Germany surrendered on 7.5.1945, Japan officially surrendered on 15.8.1945 just after Russia declared war against Japan on 8.8.1945. It was in April, 1945, Subhas Chandra Bose left Rangoon and reached Bangkok on 14.5.1945. Thereafter left Bangkok on 8.5.1945 for Singapore. At Singapore, he came to know that Japan Surrendered. As supreme commander of INA, he had given last speech. To quote relevant portion :
"Comrades............we have now been overwhelmed by an undreamt of crisis. You may perhaps feel that you have failed in your mission to liberate India. But let me tell you that this failure is only of a temporary nature. No setback and no defeat can undo your positive achievements of the past. Many of you have participated in the fight along the IndoBurma frontier, and inside India, and have gone through hardship and suffering of every sort. Many of your comrades have laid down lives in the battlefield, and have become the immortal heroes of Azad Hind."
While summarizing the speech, Subhas Chandra Bose said :
"The roads to Delhi are many, and Delhi still remains our goal. The sacrifices of your immortal comrades and of yourselves will certainly achieve their fulfilment. There is no power on earth that can keep India enslaved. India shall be free and before long."
22. It was the morning of 15.8.1945, Netaji left Singapore by a plane bound for Saigon accompanied by Cols. HabiburRahman, Pritam Singh, Gulzara Singh, Maj. Abid Hassan and Messrs, S.A. Ayer and Debnath Das and arrived Bangkok. He showed his interest in Russia to lead his crusade for liberation of country. With the help of Field Marshal Terauchi, Subhas Chandra Bose along with his party proceeded from Bangkok to Saigon by the same plane and met Terauchi who made special arrangement for the flight of Netaji, to Shinkyo, Manchuria together with Lt. Gen. Tsunamasa Shidei, Chief of Staff at Burma Command on a heavy bomber belonging to Japanese Third Air Force. The team including Subhas Chandra Bose took off on 17.8.1945. On account of limited space in the plane, only HabiburRahman accompanied Netaji. Others stayed back waiting for next flight. The overloaded plane stopped at Tourane and stayed over night at the Morim Hotel. The plane took off from Tourane at 5.00a.m. the next day, i.e. 18.8.1945 and arrived at Taipeh at about noon. After lunch and rest for about two hours, the plane took off again at about 2.00p.m. and made a steep ascent when a loud explosion was heard and the plane dived to the ground and burst into flames. It was reported that six persons were killed including Netaji and seven including HabiburRahman survived "with minortoserious injuries".
23. It shall be appropriate to reproduce chronological events with regard to plane crash noted in a book, "Netaji Subhas Chandra bose, His Contribution to Indian Nationalism" by V.S. Patil which is as under :
"Netaji, along with his party, proceeded from Bangkok to Saigon by the same plane and met Terauchi, who made a special arrangment for the flight of Netaji, to Shinkyo, Manchuria together with Lt. Gen. Tsunamasa Shidei, Chief of Staff at Burma Command, who had come from Rangoon to Saigon, as he had just been appointed as the ChiefofStaff of Manchurian Command.
A heavy bomber (Model 972Sally, twin engined measuring 22.5 metres wing to wing, 16 metres from nose to tail, weighing 7,450 kilos, built by Mitsubishi Heavy Industries of maximum speed of 230 knots) belonging to the Japanese Third Air Force, took off from the Saigon Aerodrome at aroung 5.30 p.m on 17 August 1945. Because of limited space in the plane, only Habib urRahman accompanied Netaji. The remaining members of the party stayed back waiting for the next flight to join Netaji in Manchuria.
Just before the take off, an Indian presented two suitcases full of some heavy things as presents to Netaji on behalf of the 3 million Indians in East Asia.
The plane was overloaded with machine guns and bombs. That was lightened at Tourane, where the plane stopped over and where Netaji and his party stayed overnight at the Morim Hotel. The plane took off from Tourane at 5.a.m the next day, 18 August 1945, the last day of Netaji''s life, and arrived at Taipeh at about noon. After lunch and rest for about two hours the plane took off again at about 2 p.m and made a steep ascent when a loud explosion was heard and the plane dived to the ground and burst into flames. It was reported that six persons were killed including Netaji and seven including HabiburRahman survived "with minortoserious injuries".
Two of them (Lt. Gen. Shidei and Pilot Major Takizawa) died on the spot and four including Netaji, died in hospital. "Netaji''s clothes", writes Hayashida, "were on fire. He was wearing Khaki drill clothes. Col. Rahman laid him down on the ground and noticed a very deep cut on the left side of his head... The cut in his head was about four inches long."
HabiburRahman himself has given an account of the tragedy in a note to Hayashida, recently in 1966 at Rawalpindi in the following words :
"Mr. S.C. Bose and myself jumped out through the fire. As soon as I was out of the plane, I saw him struggling with fire on his clothes as some petrol had been splashed on them. I rushed forward and put out the fire and soon laid him on the ground."
After laying Netaji on the ground Rahman lay down by his side. Just then Netaji enquired of him (Rahman), "apko ziada chot to nahin lagi ? (Hope you have not been badly hurt). It was a pathetic condition of the two sons of India ! Netaji sure of not surviving instructed Rahman : "When you go back, tell my countrymen that I fought to the last for the freedom of my country. And no power could now keep our country in bondage any longer. They should continue the struggle. India will be free before long."
Netaji enquired from an interpreter, Mr. Juichi Nakamura, in the Nanmon Army Hospital, Taipeh, about his men. He said, "My men are following me and they should be taken care of when they come to Formosa." His last words were : "I want to sleep." He took rest, after having fought continuously for the freedom of his mother country, without a word of complaint or a groan. The Japanese officers, at the other end, were groaning and crying with pain.
The Japanese doctors (Capt. Yoshimi, T. Tsuruta who attended on Netaji), two nurses, Col. Habibur Rahman, interpreter Nakamura and medical orderly, Mr. Kazo Mitsui were present at the time of Netaji''s death. The Medical Officer, Yoshimi wrote in a death certificate in Japanese, that (Chandra Bose) died on account of "Burns of third degree." HabiburRahman stated : "I noticed that he had sustained a deep head injury which was bleeding profusely. His body had also suffered from deep burns. According to Cap. Yoshimi "Netaji was burnt all over.....even his chest was burnt. His face was swollen.... He was in his senses when he was brought in. He was in high fever...39 centigrade.
HabiburRahman has further stated : "The Japanese doctor treated him (Netaji) as best as he could, but unfortunately he expired at 8.30 p.m., on the same day, 18 August 1945.
The cremation of Netaji''s mortal remains took place at the Taipeh City Crematorium on 20 August 1945. At the cremation Col. HabiburRahman, Maj. Nagatomo from the Formosan Army, the interpreter Nakamura, Buddhist priest and manager for the crematorium, were present.
The ashes of Netaji were shifted to the Nishi (west) Honganji Temple, Taipeh. Hayashida arrived in Taipeh by a plane (at 2 p.m on 5 September 1945) and took into his custody two boxes one containing Netaji''s ashes and the other, Netaji''s treasure, gold and jewellery, and left after half an hour for Japan, accompanied by Maj. Nakamiya, Lt. Col. Sakai, HabiburRahman and a guard of three soldiers. The party was divided for the sake of safety at Fukuoka. Col. Rahman and Maj. Nakamiya left by plane and the remaining party with boxes, left by train (at 3 p.m on 7 September 1945). The party arrived in Tokyo (at 6 p.m on 7 September) on the eve of the historic entry of General MacArthur into Japan, and delivered the boxes to (Maj. Kinoshita) the Imperial General Headquarters at 11 p.m on same day.
The next day (8 September) morning, the officer on duty Lt. Col. Takakura handed over the urn to Mr. Ram Murti, President, the I.I.L., Tokyo, and S.A. Ayer, who received it with overwhelming emotion.
The conversation between S.A. Ayer and Col. HabiburRahman, on the same night (8 September 1945), at Mrs. Sahay''s residence, where Ayer was staying, "cleared all doubts which Mr. Ayer had", stated Mr. Murti in his statement, "and now Mr. Ayer was convinced that the crash was an indisputable reality, and Netaji was a victim of it." The statement concluded, "and we all accepted this as truth without a shadow of doubt in our mind."
The urn was kept at the Renkoji Buddhist temple in Suginami Ward, Tokyo.
24. About three days after handing over the urn, the Netaji''s treasure of gold and jewellery, of about 11 kilograms, valued at rupees one lakh, collected by about 100 girls of the Taipeh Girls High School, under the direction of the Taipeh Army, after the air crash, another box of valuables was handed over by the Japanese Imperial General Headquarters to Mr. Murti. A rough list of the valuables was made by Col. HabiburRahman and signed by him. This treasure along with 300 grams of gold and 2,00,000/ yens, given by Mr. Ayer, remained with Mr. Murti (from 1945 to 1951). The first Secretary of the Indian Mission in Tokyo received the Netaji''s treasure, signing on the same receipt of a list prepared by Col. Rahman in 1945, and Ayer''s treasure, from Mr. Murti, on 24 September 1945.
The whereabouts of this treasure are not known as yet."
25. Sugata Bose, Professor of History of Haward University who happens to be the grand son of Sarat Chandra Boase, brother of Netaji Subhash Chandra Bose had written a most celebrated biography of Netaji, "His Majesty''s Opponent". The sequence of events with regard to enquiries after death of Netaji has been naratted by Sugata Bose which shall be worthwhile to mention and discuss hereinafter.
26. After cremation of dead body at Taipei, there was silence with regard to Netaji''s whereabout. On August 23, i.e. after after a fiveday delay, the Domei agency of Japan broadcast the news of Netaji''s death. Learned author noted that Col. Habibur Rahman after Netaji''s death asked the Japanese to fly Netaji''s body to Singapore, or to Tokyo. They promised to try, but later reported practical difficulties in doing so. Hence, having no option, Habib consented to a cremation in Taipei which took place on 20th August, 1945. Ashes were placed in an urn and kept in the Nishi Honganjit temple, close to the hospital. On September 5, Habib boarded an ambulance plane in Taipei with Netaji''s mortal remains, on his journey to Japan where it was placed in Nishi Honganji temple.
27. Soon after end of war, New Delhi sent two groups of intelligence officers, led by Finney and Davies, to Southeast Asia to conduct inquiries and to arrest Bose, if he was alive. These groups included two Bengali police officers, namely H.K. Roy and K.P. De. Mr. Davies'' team, which included H.K. Roy, went first to Saigon and then to Taipei in September 1945. They interviewed the Japanese military officer in charge of the Saigon airport, military officers at the Taipei airport, and the chief medical officer at the Taipei hospital. At Bangkok, it seized a telegram dated August 20 from the Chief of staff of the Japanese Southern Army in Saigon to the officerincharge of the Hikari Kikan in Bangkok which contains the news of crash in the afternoon of August 18 and with regard to the death of Netaji in the night. Finney''s report reached the definite conclusion that Bose had indeed died as a result of the plane crash on 18.8.1945.
28. Again in 1946, Mountbatten''s headquarters at Kandy conducted another enquiry into the fate of Subhas Chandra Bose. Mountbatten''s probe into whether Bose had in fact died was conducted through Colonel J.G. Figgess, who was attached to General MacArthus''s headquarters in Tokyo and overseen by an American intelligence officer working under the general headquarters of the Supreme Command Alied Powers. On 25.7.1946, Figges reported that their mortal enemy had indeed met his corporeal death on 18.8.1945.
29. In August 1946, an Indian journalist, Harin Shah, visited Taiwan and gathered information on what he described as the gallant end of Netaji. The onthespot journalistic inquiries convinced Harin Shah that the news of Netaji''s death as a result of the air crash was true.
30. In another enquiry on 19.10.1946, a British captain, named Alfred Raymond Turner recorded a statement by Captain Yoshimi Taneyoshi, the surgeon in charge at the Taipei hospital, inside the Stanley Gaol in Hong Kong. He stated that the injured were brought from the airport to the hospital where Japanese military officer had pointed out "Chandra Bose" to him. The patient had suffered extensive burns. "During the first four hours", according to Dr. Yoshimi, "he was semiconscious, and practically normal, speaking quite a good deal." The doctors believed that the first word he spoke were in Japanese, asking for water, which he was fed through a hospital cup with a spout. It is speculated that Bose was unlikely to have used the Japanese word meju for water and may have said something about "Mejda," his elder brother Sarat. The doctor stated that most of his speaking was in English. A request for an interpreter was made, and one was sent from the Civil Government Offices named Nakamura. Nakamura had no doubt that the man he was speaking with was Chandra Bose. The patient began to sink into unconsciousness after four hours, and died later that night. His adjutant, an Indian colonel, who was also under Yoshimis care, wanted Bose''s body to be taken to Tokyo. Therefore, the doctor injected Formalin into the body and had the coffin partly filled with lime, which was taken to the airport on August 20 by warrant officer Nishi. The officer returned saying that the body, "for some unknown reason," could not be transported to Japan and had to be cremated in Taipei. The doctor wrote out a death certificate for the crematorium. Bose''s ashes were handed over to the Indian colonel.
31. However, mystery shrouded, confusion created in the mind of Britishers because of a statement given by Mahatma Gandhi having doubt with regard to death of Subhas Chandra Bose. Learned author (supra) noted that at later stage, Gandhiji clarified the position that his statement was based on belief and not on knowledge. It shall be appropriate to quote relevant portion from the book "His Majesty''s Opponent'' written by Sugata Bose with regard to controversy created because of the statement given by Gandhiji, to quote :
"The British had been worried by Gandhi''s assertion in early January 1946 of his belief that Netaji was alive and would appear at the right moment. A week before the naval mutiny, Gandhi insisted on speaking about Bose in the present tense. Congressmen interpreted Gandhi''s inner voice to be secret information received from Netaji. There were other rumors making the rounds. According to one, Nehru was said to have received a letter from Bose saying that he was in Russia and wanted to escape to India. He would arrive via Chitral, where one of Sarat Bose''s sons would receive him. Gandhi and Sarat Bose were alleged to be aware of these plans. The intelligence assessment deemed this story :unlikely,: but :a growing belief in India that Bose is alive" was a cause for concern.
On March 30, 1946, Gandhi clarified his views on the matter in his journal Harijan. He referred to the 1942 report on Bose''s death, which he had believed but which later turned out to be incorrect. Since then, he had had "a feeling that Netaji could not leave us until his dreams of swaraj had been fulfilled." "To lend strength to this feeling," he added, "was the knowledge of Netaji''s great ability to hoodwink his enemies and even the world for the sake of his cherished goal." He explained that he had nothing but his "instinct" to tell him "Netaji was alive." He now conceded that no reliance could be placed on "such unsupported feeling" and that there was "strong evidence to counteract the feeling."The British government had access to that evidence. He had also heard the testimony of Habibur Rahman and S.A. Ayer. "In the face of these proofs," the Mahatma wrote, " I appeal to everyone before them, to reconcile themselves to the fact that Netaji has left us. All man''s ingenuity is as nothing before the might of the one God."
32. The sequence of events and the incident of plane crash has never been believed by common Indians. From time to time, different commissions were appointed by the Government of India to remove doubt with regard to plane crash but truth remained shroud. Still, the common Indians do not believe that Netaji died in plane crash in the manner referred hereinabove. The sequence of events, the photographs made available by different Commissions during the course of enquiry, nonavailability of treasure, no effort made by the Government of India to proceed with DNA test on the basis of available material, not bringing the urn from Renkoji Temple, Tokyo to India has created doubt in peoples'' mind with regard to theory of plane crash. It is under these facts and circumstances, different Commissions were appointed.
It is necessary to consider the report of different Commissions before considering the petitioner''s request for creation of Museum or alike action to preserve and protect the articles of Gurnami Baba.
SHAH NAWAZ COMMISSION
33. Shah Nawaz Commission was constituted in pursuance to notification dated 5.4.1956 issued under Section 3 of the Commissions of Enquiries Act containing following persons :
1. Shri Shah Nawaz Khan, M.P. (Major General, I.N.A.), Parliamentary Secretary to the Minister for Transport and Railway.
2. Shri Suresh Chandra Bose, elder brother of Netaji Subhas Chandra Bose.
3. Shri S.N. Maitra, I.C.S., Chief Commissioner, Andaman and Nicobar Islands.
The term of reference of the committee was as under :
"To enquire into and to report to the Government of India on the circumstances concerning the departure of Netaji Subhas Chandra Bose from Bangkok about the 16th August 1945, his alleged death as a result of an aircraft accident, and subsequent developments connected therewith."
The committee started its work early in April, 1956 and finished its task by the end of July, 1956.
34. Apart from considering different documents, the committee examined 67 witnesses which includes examination at Tokyo, four at Bangkok and three at Saigon (Viet Nam). 28 witnesses were examined at Delhi and Calcutta. During the course of enquiry, the Committee was anxious to visit Formosa which was the actual scene of occurrence of plane crash causing death of Netaji and his cremation but in absence of any diplomatic relations between Government of India and the authorities in Formosa, it could not be materialised. The committee arrived to the conclusion that in the last stages when Japan''s defeat seemed inevitable, Netaji Subhas Chandra Bose was preparing to shift his struggle, from SouthEast Asia to Russia via Manchuria. He left Bangkok on the 16th, and Saigon on the 17th August 1945, in an aeroplane bound for Manchuria. That plane crashed in flames at Taihoku in Formosa on the 18th August. As a result of serious burns sustained, Netaji died in a Taihoku hospital on the same night. His body was cremated at Taihoku. His ashes were flown to Tokyo early in September and deposited at Renkoji temple. Netaji carried some treasure with him, details of which cannot be ascertained. A small part of this treasure was salvaged, and subsequently recovered. While submitting report, the committee suggested that Netaji''s ashes should be brought to India with due honour.
35. Shah Nawaz Commission''s report may be divided into following heads :
1.Last plans of Neta Ji
2.Aircrash at Tai Hoku
3.Death of Neta Ji
4.Cremation of Neta Ji''s body
5.Neta Ji''s ashes
6.Treasure carried by Neta Ji
7.Recommendation
It is alleged that in the plane crash, out of 13 or 14, 7 persons were survived and they were Lt. Col. Tsakai, Lt. Col. S Nonogaki, Maj. T Kono, Maj. I Takahashi, Cap. Karai, Sergeant Okishta, Col. Habibur Rehman.
36. According to the report, Netaji and his adjutant Habibur Rehman and other passengers were carried to a small hospital, Nanmon Military Hospital at Taihoku which had four wards with an accommodation capacity of 80 patients. According to Committee, doctor did not recognise the face but said his name to be "Kata kana" (Japanese name for neta Ji). There were many descripancies regarding medical treatment given to Neta Ji like blood transfusion either made to Neta Ji or not. The staff of the hospital were Dr. Yoshimi, Dr. T. Tsuruta and others including half a dozen Japanese nurses. No nurse could be traced but doctors were examined. The report provides that according to doctors there was some recovery around 5p.m. but later on, the health condition of the patient deteriorated and Neta Ji succumbed to injuries. According to Maj. Kono, witnesses including Col Habibur Rehman, Dr. Yoshimi, Dr. Tsuruta, two nurses and one military policeman evident themselves of his death. Japanese authorities gave this information to the world. According to report, some Japanese soldiers came to Mr. Debnath and told that it is all cooked story and he should carry on with his work provided by Netaji. Actually, Neta Ji left some samllarm, ammunition and wireless transmitter with his two men Mr. AC das and Mr. Sunil Roy (working with Debnath) who tried to contact him with the wireless but all attempted in vain. Habibur Rehman himself admitted that he did not allow his face photos as it was severally burnt. Further, controversy was with some salvages in which a rectangular watch was brought by Habibur Rehman to Pd. Jawahar Lal Nehru who in turn handed it over to Mr. Sarat Chand Bose, Elder brother of Neta Ji. While Kundan Singh (Netaji''s Vakil) confirmed that he generally wore round watches. This situation was justified by the committee by invoking the fact that Neta Ji had carried a lot of watches with him in his treasure gifted by many personalities.
37. According to the Commission report, five persons were present, namely Col Habibur Rehman, Maj. Nagamoto, Mr. J. Nakamura, A Buddhist priest and the crematorium attendant Mr. Chu Tsang. However, the committee could not examine Mr. Chu Tsang on the ground that it could not have access to Formosa Government.
38. However, with regard to cremation, there were certain doubts in the mind of committee itself. On 19th August, Formosan Army Headquarter received a telegram from Imperial General Headquarter that the body should be flown to Tokyo by plane but it is alleged that because of big size of coffin, the body could not be flown to Tokyo and according to Col. HabiburRahman, cremation took place in a cremation hall at Taihoku itself on 22nd August, 1945.
39. A message from Chief of Staff, Southern Army to O.C. Hikari Kikan marked ''Top Secret'' reveals following communication :
"''T'' while his way to the capital as a result of an accident to his aircraft at TAIHOKU at 14.00 on 18th was serious injured and died at midnight on the same date. His body was flown to Tokyo by Formosan Army."
40. The aforesaid top secret communication in case is believed to be true, there was no occasion for the cremation at accident site of Netaji Subhas Chandra Bose. Something is wrong either with the message or with regard to cremation which is alleged to have taken place on 22nd August, 1945. The Commission or its members have not visited Formosa and the site of plane crash. The evidence collected by the Shah Nawaz Commission instead of removing the doubt creates further doubts on several issues with regard to accidental death of Netaji Subhas Chandra Bose.
KHOSLA COMMISSION
41. Shah Nawaz Commission could not satisfy a large section of Indians with regard to case set up by the government pertaining to accidental death of Netaji Subhas Chandra Bose, hence by a notification dated 16.10.1970, another Commission, commonly called as ''Khosla Commission'' was constituted by the Government of India under the Commissions of Enquiries Act. The Commission heard number of persons relating to Netaji as the members of Indian National Army as well as friends and relatives. One of the reasons in cooking the theory of accidental death was to save Netaji from allied forces.
42. It was asserted before the Khosla Commission that a false case was cooked up to save Netaji who virtually flew to Russia via Manchuria. Except Col. HabiurRahman, no witnesses of Japani royal forces or other section came forward with a statement that Netaji succumbed to the injuries in the alleged plane crash. Neither photograph was taken nor in terms of original plan, the alleged dead body was flown to Tokyo. There appears to be no reason to change the plan at last moment and proceeded with the cremation at Taihaku. Neither any permit nor certificate with regard to cremation was obtained from the competent authorities. There appears to be no official declaration with regard to death of Netaji. The urn placed in a pot in Renkogi Temple in Tokyo has never been examined. In spite of these anomalies in the evidence on record, the Khosla Commission reiterated the finding recorded by earlier Commission (supra) with regard to accidental death of Netaji. The Commission noted that the material documents were destroyed during the course of accident. 43. Some of the flaws towards which attention of the Commission was invited by an advocate Shri N. Datt Mazoomdar were :
1. Japanis had great honour for Netaji and they cooked a false story of plane crash and the death of Netaji to avoid any possibility of Netaji being captured by allied forces. It was stated that in fact, Netaji had reached Manchuria and then to Russia safely.
2. Japani witnesses were forced to set up a false story of the death of Netaji and even after 25 years, the said cooked story is being reiterated at the cost of nation.
3. There appears to be major contradictions in the statements of witnesses given before the Shahnawaj Commission and the Khosla Commission. The witnesses had not stated before the commission any real case; rather they stated as they were pursuaded.
4. Netaji Subhas Chandra Bose normally remained silent and used to keep his plan secret. There were a handful of persons who were aware of Netaji''s plan at the last moment. No one was aware of the Netaji''s flee. The news of death of Netaji was transmitted so that nobody may be aware of the real plan.
5. Except HabiburRahman, Netaji was not known to anybody else and therefore, no witness was aware as to whether in the accident of Taihoku, the person died is the same who had got burn injuries. It was presumed that Netaji and other persons who wanted to go to Manchuria had reached their destination.
6. Japanese had neither showed the dead body of Bose to anybody nor called the Anglo American forces for verfication, may be for the reason of their being saved from the charge of violating the conditions of surrender etc.
7. No photographs were taken either at the time when Netaji was carried to Hospital or at the time of cremation although the Japanese are very keen to take photographs. This in itself proves beyond doubt that Bose had not died in plane crash.
8. There stands no reason why Bose was not awarded Guard of Honour although Japanes used to give great honour to him and without doing so, he was cremated.
9. No list of crude members and passengers is available of the plane which is alleged to have crashed in an accident nor there appears to have taken place any serious investigation therefor.
10. No record with regard to the illness of Bose nor bed ticket where the Bose was admitted in the hospital is available.
11. There is no certificate available with regard to death of Netaji to corroborate as to whether it was Bose who was cremated or anybody else.
12. No authentic and authoritative declaration with regard to death of Netaji was made. It was some nongovernmental agencies which transmitted the message of death of Netaji in plane crash. It was Mr. A.M. Sahai who was not an eyewitness of the death of Netaji nor he had witnessed the dead body of Netaji and yet, his help was taken with regard to the death of Netaji.
13. It is said that HabiburRahman had brought a watch allegedly stated to be of Netaji. The said watch is in square shape whereas Bose used to wear round watch.
14. No gold was found in the ashes of Netaji kept in Renkoji Biddhist Temple although in one of the teeth of Netaji, gold was fixed.
15. Khosla Commission or its members also seems to have not visited Formosa and scene of plane crash which seems to be necessary for correct appreciation of evidence and finding.
44. Though the Commission tried to explain the aforesaid issues but seems to far away than satisfaction. Still no satisfactory response either from the Commission Report (supra) or from the Government of India with regard to DNA test of the ashes kept in Renkoji Buddhist Temple, Tokyo has come forward. One of the important incidents which has created doubt over the report of Khosla Commission is the fact that one of its members Suresh Chandra Bose happens to be brother of Netaji Subas Chandra Bose initially had declined to sign the report of the Commission. Shri Suresh Chandra Bose was of the view that Netaji Subhash Chandra Bose was alive at that time. Suresh Chandra Bose disbelieved the statement of witnesses as well as the documents produced by the government ascertaining the accidental death of Netaji Subhas Chandra Bose. However, the material on record reveals that Suresh Chandra was persuaded to sign over the Commission report for some extraneous reasons. In spite of the fact that on 30.10.1946, Sardar Ballabh Bhai Patel had categorically stated in Vidhan Sabha that there is no restriction over Netaji Subhas Chandra Bose and he has not been declared as war criminal but even then an impression was given that Netaji was a war criminal. However, no effort was made by the Government of India by constituting an autonomous body to look into different issues raised by near and dear of Netaji Subhas Chandra Bose.
MUKHERJEE COMMISSION
45. For the third time, by a notification dated 14.5.1999, another Commission was constituted by the Government of India, chaired by Justice M.K. Mukherjee, Former Judge of Supreme Court. Reasons for appointment of Mukherjee Commission were :
(i) In conclusion of Shah Nawaz Commission, Suresh Chandra Bose was of the opinion that Netaji was still alive. The Indian Government had accepted findings of majority (i.e. two members) after dejecting the opinion of Suresh Chandra Bose.
(ii) In Khosla Commission Findings were not accepted by several important personalities including some members of Netaji''s family and Ex MP Guha.
(iii) A Public Interest Litigation was filed in this regard at Kolkata High Court where divisional Bench had disposed of directing the Union of India to launch a vigorous inquiry into the alleged disappearance of Netaji.
(iv) Further Calcutta Legislation on passing a resolution had suggested the Union to pursue a new inquiry in to the alleged death of Netaji.
46. Learned counsel for the petitioner states that Mukherjee Commission could not discharge its obligation smoothly which appears to be for the following reasons :
(1) On March 23, 2000, commission called for file No.12 (226)/56 PM ''investigation into circumstances leading to death of Netaji Subhas Chandra Bose to (Ministry of Home Affairs) Director of Internal Security for which he replied that no such file is with cabinet secretariat, Intelligence Bureau and Research & Analysis wing.
(2) While the Director of PMO replied that the file had been destroyed in 1972 though it may be with cabinet secretariat as files are kept permanently there.
(3) Later on the file has been denied by Ministry of Home affairs which peremptorily forestalled all contemplated future attempts.
(4) While a different version of reply was given in 1972 when khosla commission was holding enquiry. Evidently, Guha, a Member of Parliament wrote letter to the then Prime Minister Indira Gandhi on January 3, 1974 requesting to investigate into the matter and forward it to the commission on which the Prime Minister gave following reasons, "file containing only copies of certain documents which are still available in other file."
(5) Again on August 28, 1978, the then Prime Minister Morarji Desai had raised doubts over the previous reports of the committee and mentioned that some further contemporary official documentary records have also become available. Pursuant thereto committee asked the Prime Minister Officer, MINISTRY OF EXTERNAL AFFAIRS, MINISTRY OF HOME AFFAIRS to ensure production of all those records, about which, the then Prime Minister appears to have mentioned while delivering the speech(supra).
(6) Record of entire proceedings of Khosla commission was called but out of 202, only 89 documents were made available. In mid of February, 2003, the commission sent one member to Delhi for retrieving khosla commission documents. While examining ''T'' Section, the learned Member of the Commission went through a list containing various exhibits, a reference whereof was earlier found to have been made in a file maintained in that section but none of the records mentioned in the list was made available to the learned Member for scrutiny.
(7) While visiting a library in England, two books relating to Neta Ji had come to light which was marked closed and after a lot of attempts could not be made available to the Commission.
47. From the petitioner''s argument and material on record, it appears that the DNA test of urn placed in Renkogi temple, Tokyo could not be done in spite of demand made by Mukherjee Commission.
48. The Commission visited Taiwan, Russia and examined 131 witnesses from both sides. With regard to death of Netaji, the commission took into account the five theories which are as under :
(1) Alleged death in plane crash at Taihoku Formosa (in Taiwan) in August 1945.
(2) Murdered at Redfort on August 1945 This version of story was rejected on the ground of absence of any substantial evidence.
(3) Death in Dehradun Uttar Pradesh 1977 in this story a Sadhu was told to be Netaji but no evidence in this regard was given hence rejected.
(4) Death at Sheopukalam in Madhya Pradesh there were five witnesses in this story and admittedly none of them saw Netaji ever.
(5) Died at Ram Bhawan in Faizabad U.P. as Gumnami Baba. This is somewhat more evidential than any of the above previous stances of his death.
49. So far as death of Netaji in plane crash is concerned, Mukherjee Commission recorded a conclusive finding that he did not die in plane crash at Taipei and the ashes placed in Japani temple are not of Netaji. Mukherjee Commission has disbelieved the statement given by Col. Habibur Rahman. For convenience, paras 4.12.18 and 4.12.19 from the report of Mukherjee Commission are reproduced as under :
"4.12.18 On a conspectus of all the facts and circumstances relevant to the above issues it stands established that emplaning at Saigon on August 17, 1945 Netaji succeeded in evading the Allied Forces and escaping out of their reach and as a camouflage thereof the entire makebelief story of the air crash, Netaji''s death therein and his cremation was engineered by the Japanese army authorities including the two doctors and Habibur Rahman and then aired on August 23, 1945 through a statement prepared by Sri S.A. Ayer at the dictation of the aforesaid authorities to give imprimatur of the INA to the death news of Netaji. Obviously, in cooking up the story of Netaji''s death in the plane crash and giving it a modicum of truth they (the Japanese military authorities and Habibur Rahman) had no other alternative than resorting to suppression of facts and in so doing they not only invited material contradictions in their evidence as pointed out by the deponents and their learned Counsel but also left latent loopholes which have now been discovered. Though no firm opinion can be expressed about Netaji''s exit point it can legitimately be inferred, having regard to the established fact that Habibur Rahman who accompanied him from Saigon was next found present in Taipei cooking up a story (along with others) of his death there, that Netaji disappeared therefrom (Taipei). But the question whether Netaji thereafter landed in Russia or elsewhere cannot be answered for dearth of evidence.
4.12.19 As regards the journey of the ashes collected by Habibur Rahman from the crematorium at Taipei to the Renkoji Temple in Japan the evidence is consistent and, therefore, needs no discussion. Since the ashes collected were of Ichiro Okura not of Netaji the only inference that can be drawn is that the ashes lying in that temple cannot be of Netaji. On the contrary, the presence of bones in the ashes as noticed by officers of Indian Embassy in Tokyo is a circumstance which corroborates that those cannot but be of Ichiro Okura. Considered in that backdrop, the inability of the Commission to subject the mortal remains to DNA test in the circumstances beyond its control has not stood in the way of recording its conclusive finding in that regard a finding arrived at on the basis of robust circumstantial evidence on record.
50. The Commission submitted its conclusive finding under Chapter 5 of the Report in terms of reference which is reproduced as under :
"Chapter Five
Conclusions
5.1In view of and in conformity with the preceding discussion the response of the Commission to the terms of reference, seriatim, is as follows :
(a) Netaji Subhas Chandra Bose is dead;
(b) He did not die in the plane crash, as alleged;
(C) The ashes in the Japanese temple are not of Netaji;
(d) In absence of any clinching evidence a positive answer cannot be given; and
(e) Answer already given in (a) above.
5.1.1 As regards the ancillary query (vide paragraph 3 of the Notification) the Commission is of the view consequent upon its above findings that in undertaking the scrutiny of publications touching upon the question of death or otherwise of Netaji, the Central Government can proceed on the basis that he is dead but did not die in the plane crash, as alleged.
Signed
Chairman
Kolkata
November 07, 2005
51. From the finding recorded by Mukherjee Commission, there appears to be no doubt that in view of Commission, Netaji had not died in plane crash as historically understood by the government.
52. In such a situation, from time to time, different theories with regard to survival and death of Netaji carry weight. The commission recorded a finding on different theories with regard to appearance, disappearance and death of Netaji including Gumnami Baba.
53. Learned counsel for Union of India has placed on record a photostat copy of notary affidavit issued by Mr. Ashish V. Gawai, Under Secretary in the Ministry of Home Affairs, New Delhi which reveals that the Government of India did not accept the conclusion of Justice Mukherjee Commission. Para 8 of the affidavit is reproduced as uner :
"The report of the JMCI was placed before both the Houses of Parliament along with the Action Taken Report (ATR) on 17th May, 2006 as per section 3(4) of Commissions of Inquiry Act, 1952 (Annexure A1). The relevant portion of the said ATR reads as follows :
"The Government have examined the Report submitted by the Commission on 8th November, 2005 in detail and have not agreed with the findings that :
a. Netaji did not die in the plane crash; and
b. The ashes in the Rankoji Temple were not of Netaji.:
54. The office memorandum dated 12.2.2010 of Lok Sabha Secretariat has been placed on record which reveals that the Report of Justice Mukherjee Commission was placed before the table of Lok Sabha but it appears that the Parliament had not passed any resolution rejecting or accepting the same. Only the matter was discussed under Rule 193 of Business Rules of Lok Sabha on 2, 3 and 7 August, 2006. A stand has been taken that under Rule 193 no formal motion requires by the House and with the reply of the Minister the discussion came to close. Office memorandum dated 12.2.2010 is reproduced as under :
" LOK SABHA SECRETARIAT
F.NO. 23/5/XIV/2008/T PARLIAMENT HOUSE
NEW DELHI 110 001
OFFICE MEMORANDUM
Subject : WP No.2003/2006Shri Rudra Jyoti BhattacharyaVs. Union of India and others.
The undersigned is directed to refer to the Ministry of Home Affairs (IS Division) OM No.12014/5/07Cdn(Pt) dated 4th February, 2010, on the above subject and to state that there is no general statutory provision which makes it obligatory on Parliament to accept or reject any Action Taken Report (ATR), placed by the motions/resolutions accepting or rejecting the Action Taken Report (ATR). Whenever a motion or a resolution is adopted by the House, copy of the same is forwarded to the Minister concerned.
2.In the instant case, no notice of a motion/resolution for accepting or rejecting the ATR has been received.
3.However, Justice Mukherjee Commission of Inquiry relating to the disappearance of Netaji Subhash Chandra Bose alongwith the Action Taken Report (ATR) thereon was discussed under Rule 193 of Rules of Procedure and Conduct of Business in Lok Sabha on 2, 3 and 7 August, 2006 and the discussion was replied to by the Minister of Home Affairs. Under Rule 193, there is no formal motion before the House and with the reply of the Minister the discussion comes to close.
Sd/
(S.K. Ganguli)
Under Secretary
Tel. No.23034795
To
The Ministry of Home Affairs
(IS Div. Cdn Section)
(Shri Amar Chand, Under Secretary)
Room No.8, ''C'' Wing, 9th Floor,
Lok Nayak Bhavan, New Delhi. "
55. However, fact remains that the Government of India after considering the report of Justice Mukherjee has not accepted it and rejected the same. On account of rejection of Justice Mukherjee Commission Report, no inference may be drawn from the finding of Justice Mukherjee Commission of the articles or materials with regard to late Gumnami Baba alias Bhagwan Ji and the petitioner''s contention that he was Netaji remained in midway. Under these circumstances and in absence of any authoritative finding with regard to Gumnami Baba, his belongings are valuable and national assets and the government owes responsibility to preserve and protect it for research scholars and future generations.
56. In pursuance to an order dated 10.3.1986, passed by this Court in writ petition No.929 of 1986, an inventory was prepared by the Advocate Commissioner of Faizabad Shri Satya Narayan Singh on 23.3.1986. The inventory contains the list of household goods, articles found in Ram Bhawan after the death of Gurnami Baba. The entry was prepared on different dates and collectively filed as Annexure No.CA1 to the affidavit dated 10.12.2010, filed by Mr. M.P. Agarwal, District Magistrate, Faizabad.
57. Along with the affidavit dated 31.10.2011, filed by Mr. M.P. Agarwal, the then District Magistrate, Faizabad, a list of 721 articles have been filed which is lying in the treasury of Faizabad, said to belong to late Gumnami Baba or Bhagwanji.
58. In pursuance to the order dated 27.11.2012, passed by this Court, a list of articles taken away by Mukerjee Commission duly acknowledged on 4.5.2002 has been filed as Annexure No. A1 to the affidavit dated 5.12.2012. The document reveals that 1481 number of items were given by the Mukherjee Commission. The original letter dated 4.5.2002 of the Addl. District Magistrate(Administration), Faizabad and the acknowledgment signed by the Principal Private Secretary of Hon''ble Mr. Justice Manoj Kumar Kukherjee, Chairman, Mukherjee Commission is reproduced as under :
Received the steel box containing the articles and documents allegedly of Gumnami Baba, which were selected by the Hon''ble Chairman, Hon''ble Justice Manoj Kumar Mukherjee.
sd/
N.K. Panja, WBHJS Retd
Principal Private Secy.
Justice Mukherjee Commission of Inquiry,
Calcutta"
59. Along with the affidavit dated 5.12.2012, Shri Raj Kumar Sonar, Chief Treasury Officer, Faizabad has filed the list of articles taken away by Mukherjee Commission which is in Hindi and the same, for convenience, is reproduced as under :
60. A perusal of the aforesaid articles taken away by Mukherjee Commission reveals stature of Gumnami Baba possess flavour of nationalism and some photographs have been identified as of Netaji by some of his relatives. He was not a man of ordinary stature. However, in absence of supporting evidence, no finding may be recorded that Gumnami Baba was Netaji, more so merely because certain photographs which were in possession of Gumnami Baba were of Netaji Subhash Chandra Bose. It requires thorough probe.
61. Different articles of Gumnami Baba alias Bhagwanji were considered by Mukherjee Commission. The perusal of the report (page 114 to 122) does not reveal that Mukherjee Commission has considered the articles individually to arrive logical conclusion. Writing was compared by the experts and there were conflicting opinion. But from the Report of the Mukherjee Commission, it appears that some of the witnesses who have seen Netaji prior to 1945 and later on Gumnami Baba, asserted that Gumnami Baba was Netaji. For convenience, relevant portion of paras 4.15.7, 4.15.8 and 4.15.9 are reproduced as under :
"4.15.7 Apparently, there is no reason for not acting or relying upon the evidence of the last two categories of witnesses particularly of the category who had seen Netaji before 1945 and also met Bhagwanji/Gumnami Baba face to face on a number of occasions, more so when their evidence regarding the frequent visits of some freedom fighters, eminent politicians and former members of INA on January 23 and during the Durga Puja festival is supported by the fact that letters written by some of them including Prof. Samar Guha, Dr. Pabitra Mohan Roy and Ms. Leela Roy were found in ''Rambhawan''. But, as the discussion to follow will unfold, there are other formidable facts and circumstances on record which stand in the way of this Commission in arriving at a conclusive finding that Bhagwanji/Gumnami Baba was none other than Netaji.
4.15.8It cannot be denied that a reliable piece of documentary evidence in support of the ocular version of the witnesses referred to earlier could have been furnished if photographs of Bhagawanji/Gumnami Baba were taken by those persons who claimed to have interacted with him face to face on a number of occasions since 1963 and an opportunity given to this Commission to compare the same with the admitted photographs of Netaji."
62. From the aforesaid material discussed by Mukherjee Commission, there appears to be no room of doubt that there was substantial oral and documentary evidence which prima facie makes out a case for scientific investigation with regard to identity of late Gumnami Baba.
63. The Commission had disbelieved theory on the ground that DNA test of five teeth found in Ram Bhawan could not tally from the DNA of blood collected from descendants of Netaji. For convenience, para 4.15.10 and 4.15.11 of the Commission Report is reproduced as under :
"4.15.10 Five teeth out of nine, found in ''Rambhawan'' along with samples of blood collected from two descendants on the father''s side and three decendants on the mother''s side of Netaji were sent to the Central Forensic Science Laboratory, Kolkata for DNA profiling test to fix the identity of the person to whom the teeth belonged. After subjecting three of the five teeth to the above test Dr. V.K. Kashyap, DNA Expert and Director of the Laboratory submitted a detailed report with the following opinion :
"From the morphological examination and analysis of SRY gene, mt DNA (HVS I & HVS II), and YSTR loci in the forwarded Exhibits 1 10, it can be concluded that forwarded teeth (Exhibits 2 to 4) belong to a single human aged male individual (alleged Gumnami Baba). The individual source of the teeth does not belong to either maternal or paternal DNA lineage of Netaji Subhas Chandra Bose, therefore, cannot be of Netaji Subhas Chandra Bose."
4.15.11.He was thereafter examined by this Commission as CW 126 in course of which his report was exhibited (Ext. 222 A). He was crossexamined at length by some of the deponents to bring home their point that no reliance could be placed on his opinion but their attempt failed. Since the report categorically states that all the teeth belonged to a single human aged male individual and since except Gumnami Baba, the only other aged member who stayed with him all along was Sm. Saraswati Devi Shukla, the negative finding recorded by Dr. Kashyap quoted earlier also militates against the eyewitnesses'' account."
64. Keeping in view the finding given by expert after DNA test of five teeth, commission concluded its opinion in para 4.15.12 and recorded a finding that in absence of any clinching evidence, it cannot be recorded that Gumnami Baba died at Faizabad on September 16, 1985. For convenience, para 4.15.12 of Commission''s report is reproduced as under :
"4.15.12 In fine, in absence of any clinching evidence to prove that Bhagwanji/Gumnami Baba was Netaji the question whether he (Netaji) died in Faizabad on September 16, 1985, as testified by some of the witnesses, need not be answered."
65. After careful reading of the Commission''s report, it appears that the Commission has based its finding on the DNA test of five teeth out of nine found in Rambhawan, Faizabad. Commission has not discussed any evidence or recorded a finding that five teeth found in Ram Bhawan sent for DNA test were of Gumnami Baba or Bhagwan Ji and who were the persons who retained the teeth of Gumnami Baba after cremation. Even little doubt with regard to the veracity of teeth will compel a man of common prudence not to ignore the oral and other documentary evidence, that too when there was difference of opinion with regard to handwriting of Netaji compared by the experts.
66. Whenever there is doubt or even a little doubt to record a finding with regard to belonging or identity of a great national hero and patriot like Netaji, duty cast upon the government to preserve the articles/household goods of such person at appropriate place/museum scientifically so that coming generation may not be divested from its right of access for research work or otherwise to look into it while evaluating the petitioners'' claim.
ANUJ DHAR
67. Attention has been drawn to a noted author Anuj Dhar had written two books under the title, "Back from Dead" published in the year 2011 and the other, "India''s Biggest Coverup" published in the year 2012. Learned author had prima facie makes out a case to establish that Netaji Subhas Chandra Bose did not succumb to the injuries in plane crash in the year 1945(supra). After extensive travelling to various places and going through the classified documents, the author recorded a finding that Netaji Subhas Chandra Bose did not suffer with accident at Formosa and the Commissions'' reports are not correct.
68. Broadly, the learned author disbelieved the theory of accidental death of Netaji Subhas Chandra Bose for the reason that the list of passengers could not be traced out at Saigon. No record was traceable, since according to author, files of INA maintained at Bangkok and Saigon were weeded out in terms of instruction issued by Netaji.
69. The author has referred a plenty of material based on intelligence report which reveals nonavailability of evidence with regard to the death of Netaji. The author noted with dismay the difference of dates with regard to cremation mentioned by Col. HabiburRahman and the Japanes government. The presence of persons accompanying Netaji in plane has found to be doubtful. Effort made by Anuj Dhar, learned author to find out the truth behind the alleged accidental death of Netaji in plane crash seems to be genuine and based on relevant material, that too when the finding recorded by learned author has not been controverted by the Government of India or government of West Bengal.
Learned author elaborately dealt with the case of Bhagwan Ji alias Gumnami Baba and discussed most of the available material seems to make out a case for thorough probe.
70. Apathy shown by the Government of India to the Mukherjee Commission as well as with regard to DNA test of ash kept at Renkoji Temple, Tokiyo, Japan is not understandable.
71. A little doubt with regard to survival of a national hero in plane crash or with regard to material left by such ''national hero'' after supposed death, casts a duty on the government to find out or explore the truth which does not seem to be difficult in view of recent scientific development. The effort made and finding recorded by the learned author (supra) with due extensive tour of various places with regard to survival or death of Netaji Subhas Chandra Bose including Gumnami Baba must be attended by the Government of India with due sincerity to expose the truth.
72. Since still there is no conclusive finding through scientific measures with regard to Gumnami Baba, coupled with alleged accidental death of Netaji, the records and materials must be preserved and protected by all means for research scholars and future generation. Needless to say that we are trusties (Government) of the national assets. All the alleged materials and belongings of Gumnami Baba are national assets and must be protected for future generations so that at appropriate time by appropriate scientific methodological research truth may be unearthed or explored and addition may be made to Indian History with regard to life of Netaji or the person (Gumnami Baba) who has been treated as Netaji by the substantial section of public.
73. The manner in which the Government has dealt with the case of Gomnami Baba or in other words, Netaji may be expressed from a couplet of Ghalib, to quote :
"If Ghalib sings in bitter strain, forgive him;
Today pain stabs more keenly at his heart."
74. The finding of Mukherjee Commission has not been accepted by the Government of India. Accordingly, observation made or finding recorded with regard to Gumnami Baba alias Bhagwan Ji also stand wiped out but the fact remains that there are conflicting opinion of handwriting experts with regard to letters of Gumnami Baba alias Bhagwan Ji. Keeping in view the antiquity of material found in Ram Bhawan, Faizabad and their resemblance with Netaji, coupled with the facts on record that some near and dear of Netaji have visited from time to time Ram Bhawan, Faizabad during the life time of Gumnami Baba alias Bhagwan Ji, the articles recovered from Ram Bhawan carries weight and requires thorough probe. The claim of the petitioner relates to national hero Netaji Subhash Chandra Bose and prima facie the articles recovered have some resemblance with Netaji, It requires preservation and protection for coming progeny. Articles recovered from Ram Bhawan require to be maintained for present and future generation for historical research work and removal of doubt in due course of time. All the articles allegedly being related to Netaji seem to be national asset and the government must preserve and protect the same.
75. The articles/items of late Gumnami Baba raises reasonable curiosity for a probe to find out his identity. The celebration of birthday of Netaji Subhash Chandra Bose on 23rd January every year, books, documents and material relating back to the period when alleged death of Netaji took place in plane crash, including the books with regard to war crime and materials collected by Anuj Dhar in his two books (supra) as well as series of 17 articles published in Northern India Patrika from 20th December, 1985 to 23rd January, 1986 with regard to Gumnami Baba alias Bhagwan Ji prima facie makes out a case for probe with regard to his identity. The State and Central Government should look into it to remove doubt with regard to Gumnami Baba by holding appropriate enquiry. Why the government has not issued any clarification or denial with regard to claim of Anuj Dhar in his two books (supra) and series of 17 articles published in Northern India Patrika from 20th December, 1985 to 23rd January, 1986 is not understandable, more so when the controversy relates to a national hero like Netaji Subhash Chandra Bose.
76. Faizabad/Ayodhya is a historical place. The petitioner''s counsel informed that there is no museum at Faizabad/Ayodhya whereas in Varanasi, there is government museum, managed by a curator with sufficient number of staff. Belongings of Gumnami Baba cannot be kept in Treasury for longer period. It shall be appropriate for the government to establish a museum at Faizabad/Ayodhya where all the ancient articles/items may be preserved. The articles of late Gumnami Baba alias Bhagwan Ji may also be kept in such museum with caption, "Articles/Items of Gumnami Baba alias Bhagwan Ji who has been claimed by section of citizens as Netaji". At Ayodhya, we have been informed that the U.P. Cultural Department has a rented accommodation where materials of historical importance have been kept. Needless to say that in case a museum is constructed at Faizabad/Ayodhya, all items having historical value may be kept therein apart from items of Gumnami Baba alias Bhagwan Ji.
77. So far as mystery with regard to the death of Netaji Subhas Chandra Bose in plane crash is concerned, it is for the Government of India to take a decision, more so when without assigning any reason, the report of Mukerjee Commission has been rejected. Neither any relief has been claimed nor any prayer has been made by the petitioner. Hence, it is not for this Court to issue direction to the Govt of India for appointment of fresh Commission. We refrain to pass any order.
However, Gumnami Baba alias Bhagwan Ji resided at Faizabad, Ayodhya. He died in Ram Bhawan, Faizabad. No scrutiny of each and every item left by him has been done even by Mukerjee Commission. From the material on record, prima facie, it appears that Gumnami Baba alias Bhagwan Ji was not an ordinary person. Family members of Netaji, friends and relatives from Kolkata have been regular visitor to Ram Bhawan, Faizabad. The articles left by Gumnami Baba have been kept in treasury. Burden lies on the State of U.P to hold an enquiry with regard to identity of Gumnami Baba who lived and died in Ayodhya, Faizabad. It is also for the State Government to preserve and protect household goods left over by Gumnami Baba. Being kept in sealed cover as case property, it could not have been given to Mukerjee Commission without court''s permission. The articles taken by Mukerjee Commission should be returned to treasury, Faizabad and thereafter be kept in museum for coming progeny.
78. The New Encyclopaedia Britannica Volume 20 (15th Edition) narrates the modern development in History writing. To quote a portion from New Encyclopaedia Britannica (supra), page 559:
"Modern historians aim to reconstruct a record of human activities and to achieve a more profound understanding of them. This conception of their task is quite recent, dating from the development in the late 18th and early 19th centuries of scientific history, cultivated largely by professional historians. It springs from an outlook that is very new in human experience : the assumption that the study of history is a natural, inevitable human activity. Before the late 18th century, historiography (the writing of history) did not stand at the centre of any civilization. History was almost never an important part of regular education, and it never claimed to provide an interpretation of human life as a whole. This was more appropriately the function of religion, of philosophy, even perhaps of poetry and other imaginative literature."
New Encyclopaedia Britannica(supra) further narrates how the research work is done keeping in view the historical aspect. To quote :
"Historical research is the term applied to the work necessary for the establishing of occurrences, happenings, or events in the field with which the historian is concerned. Knowledge of these is entirely dependent on the transmission of information from those living at the time, and this information forms what is known as the source material for the particular period or topic. The occurrences themselves can never be experienced by the historian, and what he has at his disposal are either accounts of occurrences as seen by contemporaries or something, be it verbal, written, or material, that is the end product of an occurrence. These accounts or end products have been variously termed relics, tracks, or traces of the occurrences that gave rise to them; and from them the historian can, with varying degrees of certainty, deduce the occurrences. The traces are thus the "facts" of history, the actual occurrences deductions from the facts; and historical research is concerned with the discovery of relevant traces and with deduction from those traces insofar as this will aid the search for further relevant traces.'' (page 574)
According to New Encyclopaedia Britannica(supra), the source of historical materials falls in three groups i.e. written, material and traditional. The goods of late Bhagwan Ji alias Gumnami Baba shall fall in second category and constitute ''historical material'' keeping in view the petitioners'' claim and evidence on record.
79. Subject to aforesaid observation, both the writ petitions deserve to be allowed and are hereby allowed.
(A) A writ in the nature of mandamus is issued to the respondent State of U.P. to consider for establishment of museum at Faizabad/Ayodhya managed by curator wherein the articles of late Gumnami Baba alias Bhagwan Ji as well as other ancient items may be kept scientifically, under the supervision of a qualified person (curator).
(B) A further writ in the nature of mandamus is issued to the State Government as well as Government of India to repossess all the items of Gumnami Baba alias Bhagwan Ji taken by Mukherjee Commission(supra) and submit it to the treasury of Faizabad who in turn, transfer the items in the museum established at appropriate place notified by the State Government. Let a decision be taken by the government, keeping in view the observation made hereinabove, expeditiously, say within a period of three months with regard to creation of museum at appropriate place.
(C)The Government of U.P. is further directed to consider for appointment of a committee consisting of a team of experts and higher officers, headed by a Retired Judge of High Court, to hold an enquiry with regard to the identity of late Gumnami Baba alias Bhagwan Ji who resided in Ram Bhawan, Faizabad and cremated on 18.9.1985 (supra). Let a decision be taken expeditiously, say within a period of three months.
The records of both the writ petitions which contains reports and other materials shall be kept in sealed cover and shall be opened only on the order of the court by the Registry. The photographs and video recording shall be returned back to the Treasury Officer, Faizabad which shall be kept by him in sealed cover for transfer to museum (supra).
The respondents shall submit a compliance report, i.e. the decision taken in pursuance to the present judgment within four months and the Registry shall list the petition after four months for perusal of the decision taken by the government.
Registry shall send a copy of the present judgment to the Chief Secretary, Government of U.P. for compliance within two weeks.
The writ petitions are allowed accordingly. No order as to costs.
