Recollections and reflections

Reminiscences, Rafi Ahmad Kidwai

I first came in contact with Subhas Bose in 1923 at Delhi when the Congress was divided into two groups over the question of what was known as 'Council Entry.'...Subhas Babu, as the favourite lieutenant of Deshabandhu, was playing a prominent part in the controversy. more>>

Report of the One-man Commission of Inquiry into the Disappearance of Netaji Subhas Chandra Bose (1970-74)

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.

3.4 In all, 224 witnesses were examined by the Commission and a large number of documents, letters, newspaper reports, books and memoranda were received and read. A complete list of the witnesses examined along with the dates on which and the places at which they were examined will be found in Appendix I, at the end of this Report.

3.5 At the very first public hearing of the Commission, the question of representation by Counsel had to be considered. As mentioned above, a National Committee for assisting the Commission had been formed. But this was not the only interest which demanded to be heard. A Committee known as Netaji Swagat Committee, represented by Shri Uttam Chand Malhotra, also wanted to represent its case. Other committees and even some witnesses, e.g. Shri Shah Nawaz Khan, claimed the right to have a counsel to represent them and to press their case before the Commission. A request was made by Shri Amiya Nath Bose, who appeared on behalf of the National Committee, that a senior and a junior Counsel representing the interests of his Committee be appointed by the Government at public expense. Shri Amiya Nath Bose, however, claimed that the Counsel so appointed should be a man of his or the National Committee's choice. Shri Balraj Trikha, Advocate, stated that he had been engaged to act as junior to Shri Amiya Nath Bose, but later the same day, he stated that he was appearing on behalf of the Netaji Swagat Committee. At a subsequent stage in the proceedings, the family of Subhas Chandra Bose wished to be represented by counsel at the hearings of the Commission. This request was granted during the life time of Shri Suresh Chandra Bose, as it was felt that Shri Bose was deeply interested in the proceedings as Netaji's sole surviving brother and also because, as a member of the Shah Nawaz Khan Committee, he had dissented from the majority view. After the death of Shri Suresh Chandra Bose, a writ petition was filed in the Calcutta High Court praying for a direction to the Commission that counsel for Shri Bose's family should be allowed to appear in the proceedings before the Commission. This demand was not opposed by Counsel who appeared on behalf of the Commission before the Calcutta High Court, and a direction to this effect was accordingly issued by the High Court. A number of other prayers made in the Writ petition need not be mentioned here as they have no relevance to the matter of representation through Counsel.

2.16 We may pass over the events of the succeeding months as they have ho relevance to this narrative. On August 11, 1945, when Bose was at Saramban, he received information that Russia had declared war on Japan. The next day he received another message intimating Japan's decision to surrender to the Allied forces. He went to Singapore on August 13, and discussed his future plans with his civil and military officers for three days. On the morning of August 16, he flew to Bangkok and had further consultation with Japanese representatives, Gen. Isoda, Hachia, the Japanese Minister accredited to the Provisional Government of Free India, and Kagawa. On the morning of August 17, Bose, accompanied by 6 members of his staff and some Japanese officers, travelled to Saigon in two bomber planes, provided by the Japanese. Planes had to be changed here and Bose wished his entire party to accompany him on his journey beyond Saigon, and when the Army officers at the airport expressed their inability to accede to this request he insisted that the matter be referred to Field Marshal Terauchi. The party waited while messengers were sent to obtain instructions from Terauchi, who was at Dalat about a hundred miles away. Eventually, most of Bose's party had to stay behind, as the sole available Japanese bomber which was carrying Japanese army officers beyond Saigon, could accommodate only Bose and one other person. Bose selected Habibur Rahman to accompany him on what has been described as his last journey. The plane landed at Taipei in Formosa for refuelling on August 18. What happened subsequently is a matter of dispute, and it was at this stage that Bose can be said to have disappeared.

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.

3.7 That being the state of the matter I deemed it advisable at the very beginning to permit the National Committee to appear before me through counsel of their own choice. I also permitted Shri Balraj Trikha to appear on behalf of the Netaji Swagat Committee, and finally, a counsel also appeared for Shri Bose's family/though since the interests of the National Committee and of the Bose family were not in conflict, the same counsel viz: Shri A. P. Chakraborty and Shri N. Dutt Majumdar appeared and represented both interests. Finally, Mr. T. R. Bhasin, acting as the Counsel for Commission, selected the evidence and produced it before the Commission.

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.

3.14 This type of evidence was heard only because it might have led to the discovery of primary or admissible evidence. When it did not, it was treated as of no significance whatever — indeed as non est. Ishall, in the following chapter, give details of the various categories of evidence produced in the course of the inquiry and in a separate chapter discuss the merits and probative value of each piece of evidence.

3.15 It is necessary to state here the circumstances which have occasioned a seemingly inordinate delay in submitting this report; the delay, as it will presently be seen, was not due to any (tardiness) in dealing with the enquiry or to events over which I could exercise any control. My appointment as One-Member Commission of Inquiry was notified on July 11, 1970. I was at that time, pre-occupied with another assignment, as Chairman of the Committee to enquire into and report on the working of the National Akademies and the Indian Council of Cultural Relations. Some part of the work, entrusted to this Committee, had been performed, but a great deal still remained to be done. I have also been acting as a Member of the Executive Council of the Banaras Hindu University, and this involvement has made a regular and periodic demand on my time, necessitating my going to Varanasi for 2 or 3 days each month. I brought these facts to the notice of the Government when I was informed of the proposal to entrust this inquiry to me. I was told that the Government wished me to undertake the work of the Commission and that I could adjust my other assignments to fit in with the sittings of the Commission. I, accordingly, began arranging my programme of work consistently with the convenience and availability of other members of the Committee dealing with the National Akademies so that the enquiry should be brought to its conclusion with the least possible delay and with the least detriment to the progress of the present inquiry. It was, however, inevitable that some delay should result from my divided attention to the two assignments, each of which was in the nature of a full time occupation.

3.16 My work as the Chairman of the Committee on the National Akademies necessitated my holding public sessions and touring to various places in India, because the reactions of the State Governments and the cultural bodies in the various States had to be gathered before a meaningful report on the working of the Academies could be submitted to the Government. During the period August 14, 1970, to July 31, 1972, when the report on the working of the National Akademies was submitted to the Government, as many as 28 meetings of that Committee were held at Delhi to interview witnesses and visit cultural institutions in the Capital. In addition to these, 18 visits to various places in 16 different States were undertaken. Each of these visits extended over a number of days varying from one day to six days. These visits, entailing sometimes long journeys, proved very time-consuming. Finally, I had to prepare the draft of the report which extends over 220 printed pages. This draft had to be discussed at meetings of the Committee and then finalised before it could be submitted to the Government.

3.17 While I was dealing with these two matters viz. the Netaji Inquiry Commission and the Review into the woking of the National Akademies, I was, on November 12, 1971, appointed Chairman of a Committee to enquire into and report on the working of the Film and Television Institute at Poona. This assignment necessitated the holding of a number of meetings at Delhi, Bombay, Poona, Madras and Calcutta to hear the views of prominent film producers, distributors, actors etc. The report in that case was submitted to the Government on June 29, 1972. And finally, I was entrusted with the task of advising the Government on certain matters connected with the integration of the film and television wings of the Flim and Television Institute of India. This work was to be performed by an Expert Group of which there were 9 members including myself, acting as Chairman. The study which we were asked to undertake necessitated visits to Poona & Bombay and the holding of several meetings at Delhi.

3.18 The above mentioned multiple assignments which I was asked to undertake delayed the progress of the Netaji Inquiry Commission. There were, however, several other factors which also contributed to this delay.

3. 19 One such factor was the failure of the Government to appoint a Counsel to conduct the proceedings impartially and objectively, and thus provide essential legal assistance to the Commission. From the very beginning it was clear to me that there should be a competent and experienced Council for the Commission who could make a pre-study of all available and relevent evidence, and then select only those witnesses, documents, and other meterial as would be helpful in discovering the truth. This would not only have made my task easier and given the appearance of justice being done, but would also have avoided unnecessary delay and waste of time in hearing irrelevant and inadmissible evidence. Without such Counsel, I should have to act as an investigator in looking for evidence as a kind of solicitor in shifting and screening it, as Counsel in examining witnesses so selected and finally as judge in assessing the worth of the evidence tendered and adjudicating upon it, a quadruple function which would not only hamper the smooth progress of the inquiry but also give rise to a measure of dissatisfaction. Also if I did not exclude useless evidence, and agreed to examine every one who volunteered to make a statement or was sponsored by one of the several associations and individuals claiming the right to make an appearance and take part in the proceedings, I might have been obliged to continue the enquiry endlessly.

3.20 So, on October 10, 1970, I addressed a letter to the Secretary in the Ministry of Home Affairs requesting him to obtain the orders of the government for the appointment of a senior and a junior counsel for the Commission. In this letter I set out the reasons for making this requisition and said, inter alia:

"The appointment of this Commission has evoked a great deal of public interest and I may say, enthusiasm. A large number of persons have been coming to hear the examination of witnesses at the public sessions and there are clear indications that this Inquiry is generating a considerable measure of emotion on the part of many individuals. There already exists a vast amount of literature on the subject, many books and articles have been published during the last 25 years, various theories have been propounded and some of the theories have, at least, the appearance of plausibility. A large number of witnesses claim to have personal knowledge of facts which are germane to the Inquiry, and the conclusion can be reached only after unravelling a number of complicated and disputed facts. I realise that unless the examination of the witnesses is done through Counsel, it is impossible to bring all the material facts before the Commission. Also when a Counsel is appointed, the question of cross-examination by other parties or individuals can be satisfactorily dealt with".

But many months "were to elapse before a decision on this urgent and important matter was taken, and the appointment of Mr. T. R. Bhasin, Senior Counsel and Mr. S. B. Wad, as his junior, was not made till 7.3.1972. In the meantime the proceeding could not be held in abeyance, and so the task of collecting evidence, selecting the witnesses and examining them had to be performed by me. This was inevitably a slow process; at any rate, slower than it would have been with the assistance of a Counsel.

3.21 Another cause of delay was the Commission's belated visit to Taiwan. I had written to the Government at the very beginning and pointed out the desirability of a visit to Taipeh which was alleged to be the scene of the aircrash which resulted in Bose's death. The Shah Nawaz Khan Committee had not been able to go to Taiwan and great deal of criticism against the findings of that Committee was based on its failure or refusal to visit Taiwan. I felt it necessary to advise the government to make facilities available for the Commission's visit to Taiwan so that the same criticism should not be repeated. The government, however, expressed its reluctance to sponsor the visit, on the ground that India had no diplomatic relation with Taiwan and a Commission of this nature could not officially visit Taiwan without giving rise to diplomatic misunderstandings. Mr. Samar Guha, however, declined to accept this position and continued to agitate the matter and press for a visit to Taiwan. At the beginning of 1973, the government saw its way to allowing the Commission to visit Taiwan. The visit, accordingly, took place in July 1973, which was the earliest possible in view of the arrangements which had to be made for travelling and for living accommodation and for calling witnesses in Taiwan who had to be informed of the Commission's visit. The Commision spent about 8 days at Taipeh recording the evidence of witnesses, inspecting the airfield where the crash was alleged to have taken place and visiting the crematorium where Bose's dead body was alleged to have been cremated. The evidence having been thus concluded, July 30, 1973 was fixed for arguments of Counsel.

3.22 Further delay was, however, to occur owing to the unfortunate indisposition of two advocates appearing in the proceedings. Shri Chakraborty, who was Counsel for the National Committee suffered a heart attack and was confined to bed for several months. Shri T. R. Bhasin, Counsel for the Commission also suffered a heart attack on return from Taiwan, and his medical advisers ordered him to stay in bed for some weeks. So, it was only on 10.9.1973 that arguments in the case could commence.

3.23 In accordance with the general practice of conducting proceedings before Commissions of Inquiry and in view of the fact that the recording of the evidence had taken place over a long period and Shri Bhasin had been appointed only towards the end of the proceedings, the entire evidence was read out at the public sessions. This took a considerable time. The arguments of Counsel extended over several months. A certain amount of latitude had to be permitted both in the matter of recording the evidence and in the matter of adducing arguments by Counsel because of the pecu­liar nature of these proceedings. It has already been stated that the case had aroused deep emotions, political and patriotic, and there were constant requests by individuals to appear and give evidence. Often the evidence sought to be tendered was neither admissible nor very helpful. Many requests were rejected but when requests came through Counsel and were pressed with vehemence I had often to concede the demands because I felt that, in this case, more than in any other it was not only important to do justice but also to appear to do justice. This proved a fruitful source of delay.

3.24 Therefore, we see that the circumstances which have prolonged this inquiry were matters over which I had no control. My divided attention by reason of other time-consuming assignments, the government's failure to appoint a Counsel for the Commission as soon as the inquiry started, the delay in processing the visit to Taiwan, the unfortunate illness of two of the most important Counsel assisting and conducting the proceeding and the peculiar nature of the inquiry with its political, emotional, and patriotic overtones were responsible for the delay in concluding the Inquiry.