3. Evidence and Proof

3.1 Shortly after the appointment of the Commission was notified, the Secretary to the Commission issued a notice, which was published in all the leading newspapers of India, inviting all persons, acquainted with the subject matter of the inquiry, to furnish to the Commission statements relating to facts and circumstances having a bearing on the disappearance of Netaji Subhas Chandra Bose and the subsequent developments connected therewith. The advertisement announced that statements supported by affidavits would be received by the Commission, and witnesses should indicate their willingness to appear and testify in person.

3.2 Even before the publication of this notice in the newspapers, letters began to be received at the office of the Commission, and individuals came to interview me. They offered to give assistance in the form of oral evidence, books, newspaper-cuttings and other publications which had come to their knowledge. I was informed that a National Committee to assist the work of the Commission had been formed, and that this committee would call witnesses, examine them and give such other assistance as might be necessary. It was decided to hold the inquiry in public and not in camera. The first public sitting of the Commission was fixed for October 16, 1970. On that date, the examination of witnesses began. Thereafter, there were sittings at Delhi and several other places in India at which a large number of witnesses testified. The Commission also paid a visit to Japan and some countries in South-East Asia where further evidence was recorded. I had pointed out to the Government the advisability of paying a visit to Taipei, in Taiwan in order to inspect the site of the alleged aircrash. I had also made a request that the Government should make arrangements for this visit. The Government at first expressed its inability to accede to my request, on the ground that the Government of India had no diplomatic relations with the Government of Taiwan, and therefore, no official visit could be arranged through official channels. Later, however, on the insistence of Shri Samar Guha and other persons, the Government agreed to permit the Commission to proceed to Taiwan for the inspection of the spot and for examining such witnesses as might be available and whose evidence would be relevant to the subject matter of the inquiry.

3.3 After the conclusion of the evidence, counsel addressed their arguments to the Commission..

3.6 I made it quite clear, at the very outset, that this was not a case between two or more opposing parties, each claiming to prove its specific case or establish an individual right in contradiction to the others. The Commission had been appointed with a view to discover and establish the truth regarding Netaji's disappearance, and not to pronounce judgement in favour of one of the contending parties, to the detriment of others. I also made it clear that the Government had no case to press before the Commission; and although the report of the Shah Nawaz Khan Committee had been originally accepted by the Government, the matter having now been reopened, the Government did not wish to plead that the findings contained in that report were correct, far less binding upon this Commission. I, therefore, repelled the suggestion that Government should be asked to appoint a Government lawyer to represent the Government's case before the Commission, as contemplated by Rule 5(c) of the Central Commission of Inquiry (Procedure) Rules, 1960. At the same time, I was anxious that there should be expert legal assistance available for the Commission's work throughout the proceedings, as it is not possible for the person conducting an inquiry of this nature to act as the investigating officer who discovers the evidence, the solicitor who shifts the material so discovered, the lawyer who adduces the oral and documentary evidence, and finally, as the Judge who appraises it and pronounces judgement upon it. I, therefore, made a request to the Government, at the very outset, to appoint a Counsel for the Commission who should be an entirely impartial person. He would search for the evidence and would act both as solicitor and lawyer in as much as it would be his duty to screen the evidence and then adduce it before the Commission. Unfortunately, this request was not acceded to at an early stage of the inquiry and it was not till May 29, 1972 that Mr. T. R. Bhasin, who was appointed Counsel for the Commission, was able to appear and conduct the examination of witnesses, and the submission of documents.

3.8 I may mention here at the very first hearing at which Mr. Bhasin appeared, I ruled that although he, as Counsel for the Commission, would be shifting the evidence and examining it, any person aggrieved by his selection could appeal to me and I would finally decide whether a certain witness or a certain piece of documentary or other evidence should or should not be produced at the hearing. All parties accepted this order as just and proper, and I am glad to' say that Mr. Bhasin discharged his duties so fairly and competently that there were no complaints of any kind by anyone regarding his selection and production of evidence, though his discussion of the evidence and the inferences he sought to draw and to place before the Commission in the course of his arguments were assailed as pro-Government and as a piece of special pleading to support the majority report of the Committee presided over by Shri Shah Nawaz Khan. This, let me say at once, was a wholly unjust charge. Any one surveying the evidence adduced in a proceeding must inevitably present, what seems to him, the case made out by the evidence and interpret the available material accordingly. Not to offer any evaluation of the evidence or not to draw conclusions from it would be to fail in a duty which rests squarely on the shoulders of every advocate or counsel. I have no hesitation in saying that Mr. Bhasin's summing up was fair and impartial, consistently with his duty to assist me in arriving at correct findings.

3.9 Thus, while Shri A. P. Chakraborty, Advocate, was present almost throughout the proceedings, remaining absent only toward the last stages when an unfortunate cardiac ailment confined him to bed, Shri Trikha, Shri Majumdar and Shri Amiya Nath Bose offered their assistance on behalf of one party or another at several public sittings of the Commission, Shri T. R. Bhasin with his junior Shri Wad appeared from May 29, 1972 onwards. A complete statement of appearances by all counsel will be found in Appendix II.

3.10 The very name Netaji was enough to arouse the emotions of many persons, and the appointment of this Commission had evoked a great deal of very active and enthusiastic interest in a large number of persons. Requests were made by many persons for permission to appear before the Commission to give evidence or to produce documents in their possession. The demands were sometimes very vociferous. Even when the evidence of a witness appeared to me irrelevant or inadmissible, the witness urgently demanded a hearing. Upon three occasions in Calcutta, I was subjected to a gherao because the witnesses demanded a hearing. I was asked to accept the evidence of a large number of books and newspaper reports. Counsel appearing on behalf of various interests repeatedly urged a liberal construction of the rules of evidence, and argued that in an inquiry of this nature nothing that had any relevance to its subject matter should be excluded. In the circumstances, it became somewhat difficult to act too strictly within the compass of the Indian Evidence Act, and fairly early in the proceedings, I had to decide to admit evidence somewhat liberally, reserving for a later date my decision as to whether I would act upon such evidence. I explained the position to counsel appearing before me and to witnesses who wanted to be heard. I did this because in the absence of a Counsel acting on behalf of the Commission and assisting the inquiry impartially and objectively, my task assumed the form of a roving inquiry in the course of which a piece of inadmissible evidence might well lead to the discovery of some other piece of evidence which would be both relevant and admissible. I, accordingly, ruled that although my ultimate findings would be based strictly in accordance with the provisions of the Indian Evidence Act upon relevant and admissible evidence, I would not hesitate to admit evidence which appeared relevant and which might lead to the discovery or the proof of facts having a bearing upon the subject matter of my inquiry. I was obliged to do this for another reason, namely the desire to satisfy the public with regard to the fairness and the comprehensiveness of my inquiry. It has been clear from the very beginning that in this case, more than in any other, it is necessary not only to do justice but to appear to do justice. The demand of the public had arisen as much from a desire to know the truth as from emotional and political motives. The emotions engendered by the personality of Netaji and the role he had played throughout his career, clouded the reason of his protagonists, and many persons who had not even seen his face or personally known anything about him insisted on giving evidence. The extreme case, perhaps, was that of two individuals claiming to be skilled in the science of palmistry and astrology, who travelled all the way from Madras to Delhi in order to assert the certainty of Netaji's survival as revealed to them by a study of the lines on his hand. These lines, by the by, were not seen by them in the flesh but on a print said to be of Netaji's hand. I had to decline the request of these two witnesses to testify before me.

3.11 In coming to the conclusions, which will be set out in a subsequent Chapter of this report, I have strictly followed the rules of Evidence.

3.12 In the peculiar circumstance of the case I have deemed it necessary to discuss all the evidence produced before me in order to indicate the ratio of my findings and to give due appraisal of the various types of evidence produced. Counsel appearing before the Commission cited a number of rulings to suggest that a Commission of this type is not bound by the strict rules of evidence and, therefore, much that would be inadmissible evidence in the course of a judicial trial, may be admitted and considered in the present proceedings. The question, however, is not whether evidence strictly inadmissible should be admitted but in what manner this evidence should be used. I have, in coming to my conclusion, followed the legal which is also the commonsense definition of proof, given in Section 3 of the Indian Evidence Act namely:

"a fact is said to be proved when after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

I have drawn pointed attention to this matter because the Counsel arguing the case on behalf of the National Committee for Netaji Swagat Samiti and for the Bose family, have relied, to a very large extent, upon wholly inadmissible evidence which was either hearsay or beliefs and opinions expressed by various individuals. An attempt has also been made to argue the case as if we were not employing a judicial process, but a process sometimes applied in science, according to which we assume a hypothesis or propound a theory and then make a search for facts and circumstances consistent with such hypothesis or theory. This inductive method may be useful when discovering general principles in science. This is how Newton sought to prove the theory of Gravity. In judicial proceedings we are not concerned with general laws or theories. We are concerned primarily and ultimately with whether certain facts in a specified matter exist or not. To take an example, we cannot, in the present enquiry, assume that Netaji is alive because being a zealous patriot, determined to carry on the struggle for liberating India from British bondage and endowed with immense reserves of courage and resourcefulness, he would, without a doubt overcome all impediments, escape the vigilance of the Allied Forces and make his way to a place of safety, there to remain in hiding when the time was ripe to resume his activities; nor can we assume that Netaji is dead because he has not appeared in person for a long time, and then look for facts to support either hypothesis. We are concerned with what facts are proved by the evidence which has been produced, e.g. the death or survival of Bose and the circumstances in which he disappeared. In this context, the courage and resourcefulness of Netaji will be corroborative material if on other primary evidence he is proved to have survived. In the same way, his non-appearance for many years is no more than one circumstance, a piece of evidence, and not a hypothesis which may be assumed to prove his death. Take another example. We cannot argue that because, Bose had/at the age of 17, run away from home, to visit some religious place and seek religious guidance, and had again, eluding the vigilance of his guards in January 1941, clandestinely left his residence in Calcutta and made his way incognito to Kabul and then to Germany, and finally because in the spring of 1943, he had undertaken a perilous journey in a submarine from Germany to Sumatra in secret, he must, in August, 1945, have escaped without anyone knowing the manner of his escape. This would be importing the conception of modus operandi which is sometimes invoked in the investigation of crimes manifesting special and peculiar features associated with other crimes of a similar nature, known or suspected to have been committed by a particular individual. The modus operandi theory will certainly not apply to Bose's case. We must, on the basis of all available evidence, determine what exactly happened and what are the proved facts. To venture into the realm of conjecture or imagination will be neither proper nor rewarding.

3.13 In the circumstances, I have adopted the course of following the judicial method of determining facts, although in admitting evidence I have been extremely liberal and have shown the greatest indulgence to people and parties anxious to produce meterial before the Commission. My conclusions are based only on evidence which is admissible, which is not hearsay and which does not constitute opinions, beliefs or emotional convictions.