JUDGMENT Ashim Kumar Banerjee, J. PREFACE : Indian freedom struggle passed through violent and non-violent movement from time to time. We do not wish to enter into a debate, who should be given the credit for our freedom, the non-violent movement under the leadership of the father of the nation or the violent one. If people would like to give credit to the non-violent movement they would have sound logic behind it. Yet, no one could ignore the relentless fight of the youths of India to put the British administration in difficulty many a times through violent movement, rather it was a fall out of continuous oppression and torture that the British administration inflicted on our predecessor. Netaji Subhas Chandra Bose was one of the pioneers of our non-violent movement and ardent follower of the father of the nation. However, in 1939 he left the Congress and organized the Indian youth to fight out the British administration. The Second World War helped him in this regard when he joined the opposing force of British with his disciplined force commonly known as ‘INA’. He left the country and went underground and fought the British from outside. We ultimately got freedom in 1947. Sixty-six years have passed thereafter. We feel ashamed, we do not know his whereabouts. By the long passage of time, any prudent man would agree, he is no more in this world. How did he die? What did he do since we last heard him on the Radio? Being the citizen of the world’s largest democracy, each one of us has a birth right to ask the Government to let us know about him and how he died. Three Commissions could not answer the query, was the Government sincere? or despite their best efforts and sincerity they could not find out the cause. With this mindset, we proceed to dispose of the present litigation pertaining to our great Hero. BACKDROP : After the India became independent the democratic Government of the country appointed a Commission called ‘Shah Nawaz Committee’ in April 1956 to find out the whereabouts of Netaji. The ‘Shah Nawaz Committee’ could not effectively answer the reference. With this mindset, we proceed to dispose of the present litigation pertaining to our great Hero. BACKDROP : After the India became independent the democratic Government of the country appointed a Commission called ‘Shah Nawaz Committee’ in April 1956 to find out the whereabouts of Netaji. The ‘Shah Nawaz Committee’ could not effectively answer the reference. The Government again appointed ‘Khosla Commission of enquiry’ in 1970 to enquire into and report to the Government on the circumstances concerning the departure of Netaji from Bangkok on or about August 18, 1945 and reported death in the plane crash and the subsequent development thereto. The second Commission also failed to answer the reference. The Government did not proceed any further. This caused annoyance to the members of public. On January 22, 1992 the President of India decided to award Bharat Ratna to Netaji posthumously that created a tremendous discontent amongst the members of the public as the Government took Netaji to be dead. Sri Bijon Ghosh, an advocate of this Court filed a Public Interest Litigation that ultimately reached the Apex Court. The Apex Court however recorded the concession of the Central Government who ultimately dropped the idea of giving the posthumous award to Netaji. The Apex Court recorded, “since no further steps have been taken pursuant to the press communique and the matter is treated as closed, we declare that the press communique should be treated as cancelled”. The Government had to backtrack and withdraw the notification. Subsequently, another Advocate of this Court Mr. Rudrajyoti Bhattacharjee along with another, filed Public Interest Litigation being WP No. 281 of 1998 inter alia praying for various directions on the alleged research being conducted by Netaji Research Bureau and for classification and disclosure of all documents relating to Netaji as also his nexus in the Second World War. The Division Bench of our Court disposed of the writ petition by directing the respondent administration to launch a vigorous enquiry in accordance with law by appointing a Commission of Enquiry to find out whether he was dead or alive, and in case, he was dead, the cause of death as also to find out, whether the ashes that was kept at Renkoji Temple at Japan would belong to Netaji or not. The administration accepted the said order and appointed one-man enquiry Commission under the aegis of Monoj Kumar Mukherjee, a former Judge of the Apex Court to answer the following questions: (a) Whether Netaji Subhas Chandra Bose is dead or alive; (b) If he is dead, whether he died in the plane crash, as alleged; (c) Whether the ashes in the Japanese Temple are ashes of Netaji; (d) Whether he has died in any other manner at any other place and, if so, when & how; (e) If he is alive, in respect of his whereabouts. The Commission submitted its report on November 8, 2005. The detailed report in three volumes answered 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 (f) Answer already given in (a) above. On May 16, 2006 the Ministry of Home Affairs, Government of India tabled the Action Taken Report on the report of the Commission, before the Parliament. The Action Taken Report would provide 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 Renkoji Temple were not of Netaji.” The matter would rest at that stage. The cause is still left unfound. The present three applications, which we heard, were the fall out in desperation. PRESENT LIS : WP 2003 of 2006 Mr. Rudrajyoti Bhattacharjee, an Advocate of this Court filed application in the nature of Public Interest Litigation inter alia praying for the following reliefs : “a) A Writ of and/or order or direction in the nature of mandamus commanding the respondents, its agents and subordinates to act in accordance to law and to rescind, recall and cancel the impugned Action Taken Report being Annexure “P/14” forthwith. b) To command the respondents to implement in particular the crucial and all-important findings reached by the Commission after an elaborate, indepth inquiry and/or probe by giving public hearing to all concerns that Netaji did not die on the 18th August 1945 as alleged and also the categorical findings that the alleged ashes of Netaji kept in the Renkoji Temple are not ashes of Netaji Subhas Chandra Bose should be implemented and acted upon. c) For a further declaration that all connected official records, papers books published by the Government, its agent or any other publications should be corrected strictly and scrupulously in terms of the Inquiry Commissions report; d) A writ of and/or order or directions in the nature of Certiorari requiring respondents to certify, transmit and produce all records relating to the enquiry into the disappearance of Netaji Subhas Chandra Bose; and to show cause as to why the order complained of should not be set aside and upon hearing the parties and perusing the records be pleased to quash the impugned Action Taken Report being Annexure “P/14”. e) A writ of and/or order or direction in the nature of Prohibition restraining the respondents, its subordinates and agents from giving any effect or further effect to the impugned Action Taken Report being Annexure-“P/14”. f) A writ of and/or order or direction in the nature of Prohibition restraining the respondents, its subordinate and agents from allowing any person or persons to bring ashes, kept in the Renkoji Temple.” The Union of India filed affidavit-in-opposition through one Swapan Kumar Goswami, Under Secretary to the Ministry of Home Affairs affirmed on October 25, 2007 inter alia contending, the Government of India thoroughly examined the report of Mukherjee Commission and took the decision not to accept the findings as they were not based on firm grounds. The deponent also asserted, the Union of India acted in terms of the Commissions of Enquiry Act, 1952. He prayed for dismissal of the writ petition. In short, the Government did not offer any further enquiry to be made in this regard. The parties subsequently filed supplementary affidavits, last one was filed in September, 2010. In the supplementary affidavit the petitioner No. 2 Surojit Dasgupta contended, “the Parliament has no business to take decisions on Action Taken Report”. In effect, the petitioners challenged the Action Taken Report. The parties subsequently filed supplementary affidavits, last one was filed in September, 2010. In the supplementary affidavit the petitioner No. 2 Surojit Dasgupta contended, “the Parliament has no business to take decisions on Action Taken Report”. In effect, the petitioners challenged the Action Taken Report. The Deputy Director, Rajya Sabha Secretariat vide office Memorandum dated August 21, 2008 informed, “since there was no Motion before the House to accept or reject the said ATR, the Secretariat has no comment to offer in the matter”. WP 27541 (W) OF 2006 : Two other Advocates filed this Public Interest Litigation inter alia objecting to the money spent from the public exchequer for maintaining Renkoji Temple and the ashes preserved there, stated to be of Netaji, even after the Mukherjee Commission held, it would not belong to Netaji. The Central Government also filed affidavit in this matter. They also relied upon Action Taken Report and informed, “the Government of India is not spending any money to maintain the ashes kept in the Renkoji Temple, Tokyo”. With regard to the other allegation of spending from public exchequer for research on Netaji, the deponent contended, “Netaji Research Bureau is an internationally known Institute of History, Politics and International Relations established in 1957. Netaji Research Bureau is celebrating its Golden Jubilee anniversary in the year 2007-2008. The Founder Director of Netaji Research Bureau Dr. Sisir Kumar Bose had collected materials on the life of his uncle Netaji Subhas Chandra Bose from all over the world for many decades. Apart from a very rich archives the Bureau has a museum and preserved rooms of Netaji which are visited by hundreds of people throughout the year. The Bureau has published 12 volumes of Netaji Subhas Chandra Bose’s works. It has also produced documentaries and audio cassettes on him. The Bureau is engaged in preserving and propagating the life and works of Netaji Subhas Chandra Bose for the generations to come. It is run by a body of distinguished persons”. The deponent prayed for dismissal of the application. WP 8215 (W) OF 2008 : The petitioner No. 2 in the second application filed this Public Interest Litigation with another Advocate of this Court inter alia praying for reappointment or re-opening the Mukherjee Commission to have concrete answer in respect of Item No. (d) and (e) which remain unanswered. The deponent prayed for dismissal of the application. WP 8215 (W) OF 2008 : The petitioner No. 2 in the second application filed this Public Interest Litigation with another Advocate of this Court inter alia praying for reappointment or re-opening the Mukherjee Commission to have concrete answer in respect of Item No. (d) and (e) which remain unanswered. The Central Government also filed affidavit through Under Secretary, Ministry of Home Affairs inter alia contending, this issue was barred by the provision of Article 122 of the Constitution being in complete domain of the Parliament. This affidavit also relied upon Action Taken Report and its acceptance by both Houses of the Parliament. The affidavit would also suggest, the Commission worked for six and half years and the Government had to spend huge sum of money from the public exchequer on this count. Commenting on the report the deponent stated, “Justice Mukherjee Commission’s Report, therefore, does not conclusively disprove the plane crash in the light of overwhelming oral evidence, particularly of those who were co-passengers of Netaji and also the doctors and staff of the Hospital where he was treated for third degree burn injuries sustained in the plane crash. It is submitted that Government of India, therefore, found it difficult to accept the conclusions of the Justice Mukherjee Commission of Enquiry”. ARGUMENTS : Mr. Ashim Kumar Ganguly, learned advocate argued in support of his petition being the second one. He would contend, once the Mukherjee Commission categorically answered, Netaji did not die in the plane crash, there was no reason why the public exchequer would be spent on the maintenance of Renkoji Temple and the ashes stated to be of Netaji. Mr. Subhas Chandra Bose, learned advocate arguing in support of the third petition would contend, the report of Mukherjee Commission was inconclusive, hence, it was incumbent upon the Central Government to reappoint or re-open the issue appointing another Commission by the same person or anyone else to find out definite answer on the issues left by the earlier Commission. Mr. Rudrajyoti Bhattacharjee, learned advocate representing the other petitioners being the added respondents in the third petition would support the petitioner’s contentions. Mr. Keshav Bhattacharjee, learned advocate argued in the first matter. Mr. Rudrajyoti Bhattacharjee, learned advocate representing the other petitioners being the added respondents in the third petition would support the petitioner’s contentions. Mr. Keshav Bhattacharjee, learned advocate argued in the first matter. He took immense pain to draw our attention to report of the Commission, its finding recorded therein and contended, even after the alleged plane crash Netaji was alive and the independent Government of the country was aware of the same. In this regard, he would refer to the documents collected by Mukherjee Commission and annexed to its report. In fact, Taiwan Government in their E-mail admitted, “we may not sure whether U.S. still hold the passenger lists of that crashed plane by the very limited information, but this is the most closest information we could gather after the most effort we did in this regard”. In the said E-mail they admitted, there was no evidence to show that one plane had crashed carrying Netaji. He would also refer to pages 255-262 where the Chairman of the Mukherjee Commission submitted report on his visit to Taipai and Bangkok to show, he was not convinced with the alleged plane crash incident. He would also refer to the letter of the then Prime Minister of India appearing at page-33 of the petition that would quote a statement of Shyamlal Jain, Stenographer working for Jawharlal Nehru addressed to one Mr. Atlee, “Dear Mr. Atlee, I understand from most reliable source that Subhas Chandra Bose your War Criminal has been allowed by Stalin to enter into the Russian territory, which act of his is clear treachery and betrayal of faith, as Russia was an allay of the British and the America, Stalin should not have done so. This is just for your information and notice.” This was recorded by Khosla Commission. He also contended, the Government of India was aware, there was no alleged plane crash on August 18, 1945 involving Netaji’s death. The Taiwan Government carried out a detailed investigation and submitted a report to the Government to United Kingdom on May 23, 1956 that report was inspected by Mukherjee Commission which would show, there was no air crash involving Netaji. He would refer to the Radio Message of Netaji appearing at page 114A-B. Netaji’s voice was broadcast on December 26, 1945, January 1, 1946 and February 1946. Commenting on the Action Taken Report, Mr. He would refer to the Radio Message of Netaji appearing at page 114A-B. Netaji’s voice was broadcast on December 26, 1945, January 1, 1946 and February 1946. Commenting on the Action Taken Report, Mr. Bhattacharjee would contend, how the Home Minister himself could sign the report as would be appearing at the top of it at page-127 of the compilation. He prayed for suitable orders re-opening the entire issue so that the people of the country would know, what had actually happened to Netaji. Per contra, Mr. R.N. Das, learned senior advocate appearing for the Union of India in all the three matters would refer to various provisions of the Commission of Enquiry Act and contend, once the report was placed in both Houses of the Parliament and the Action Taken Report was accepted, the Court would have hardly anything to do in the matter. He would contend, Action Taken Report once accepted by the Parliament, was no more available for judicial scrutiny. He would refer to the documents pertaining to tabling of the Action Taken Report before the Parliament. He would lastly contend, the Commission appointed under the said Act of 1952 was recommendatory in nature. It was nothing but a fact finding body without any power of adjudication or granting of relief. Mr. Somenath Bose, learned advocate also appearing for the Union of India would add, once the Parliament accepted the report and did not find anything wrong the Court would have hardly anything to do. The proceeding of the Parliament was protected from judicial scrutiny under Article 122 of the Constitution. On the Netaji Research Bureau, Mr. Basu would contend, Bureau was doing research job not only on this subject but also on other subjects too. Hence, it would not be proper to shut the organization or stop funding the same. Commenting on the evidence of Shyamlal Jain, he would say, it had no evidentiary value in view of the provisions of Section 18 of the Evidence Act. While replying, Mr. Subhas Chandra Bose would contend, Commission’s power was not challenged in the writ petition. It was the Action Taken Report of the Government that would definitely come under the judicial scrutiny. In any event, the Action Taken Report being cryptic and devoid of reason, would certainly warrant interference. Joining him, Mr. While replying, Mr. Subhas Chandra Bose would contend, Commission’s power was not challenged in the writ petition. It was the Action Taken Report of the Government that would definitely come under the judicial scrutiny. In any event, the Action Taken Report being cryptic and devoid of reason, would certainly warrant interference. Joining him, Mr. Ashim Kumar Ganguly would contend, Netaji Research Bureau did not file any affidavit counter acting the allegations made against them. Mr. Keshav Bhattacharjee, learned advocate while replying, dealt with the cases cited by Mr. Das. He would also contend, the Action Taken Report was challenged and not the Parliament proceeding, hence, Article 122 would have no application. He would sum up his argument, once the Action Taken Report did not disclose any reason subsequent affidavit supplementing reason would not cure the defect. The official stand of the Government was not known to the members of the public that must come up. CASAES CITED : 1. All India Reporter 1999 Calcutta page-9 (Rudra Jyoti Bhattacharjee & Ors. Vs. Union of India & Ors.); 2. All India Reporter 1997 Supreme Court page-3019 (Union of India Vs. Bijan Ghosh & Ors.); 3. All India Reporter 1977 Volume-IV Supreme Court Cases page-608 (State of Karnataka Vs. Union of India & Anr.); 4. 2004 Volume-V Supreme Court Cases page-568 (State of Orissa Vs. Dhaniram Luhar); 5. All India Reporter 1978 Supreme Court page-851 (Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi); 6. 70 Calcutta Weekly Notes page-399 (Sahu Jain Ltd. Vs. Deputy Secretary & Ors.); 7. All India Reporter 1967 Supreme Court page-295 (Barium Chemicals Ltd. and Anr. Vs. Company Law Board and Ors.). The case of Barium Chemicals (supra) was relied upon on the sufficiency of reason. The case of State of Orissa (supra) was relied upon as to the scope of Court’s interference on a cryptic order being devoid of reason. The decision in the case of Mohinder Singh Gill (supra) and Sahu Jain (supra) were cited on the issue as to how the definite assertion made in the case could be dealt with in the affidavit-in-opposition. The above are well settled principles of law that would still hold the field. We need not deliberate further on the same. OUR VIEW : We would be concerned with the appropriate provisions of the said Act of 1952 to Mr. The above are well settled principles of law that would still hold the field. We need not deliberate further on the same. OUR VIEW : We would be concerned with the appropriate provisions of the said Act of 1952 to Mr. R.N. Das find out our competence to deal with the issue. Section 3 would empower the Union of India or the State to appoint Commission of Enquiry for the purpose of making an enquiry into any definite matter of public importance and performing such functions and submit report before the Parliament or the Assembly as the case may be. As soon as the report would be submitted to the Government, the Government would lay the same before the Parliament and/or the Assembly as the case may be, together with the Action Taken Report on the same. The Mukherjee Commission was appointed under Section 3 of the said Act of 1952. The Mukherjee Commission submitted its report before the Government. Government placed the Action Taken Report before both Houses of Parliament. They accepted the same. Article 122 would prevent us from questioning the same through a judicial scrutiny. Hence, we are unhesitatingly of the opinion, the Mukherjee Commission report or the Action Taken Report on the same is not available to us for any judicial scrutiny. We are constrained to hold, the challenge to the Action Taken Report is not maintainable. It is unfortunate, even after sixty-six years of independence we would not know how our leader being universally acclaimed, spent his last days. We would not know, how did he die. We would not know, where was he after he was last seen in early 1940s. Our Division Bench, in the earlier proceeding in the case of Rudra Jyoti Bhattacharjee (supra), categorically asked the Government to conduct a vigorous enquiry that the Central Government complied. We have nothing further to do on that score. In the case of State of Karnataka (supra) the State filed a suit in the Supreme Court for a declaration that the appointment of Commission by the Central Government was illegal and ultra vires on the ground, the said Act of 1952 did not authorize the Central Government to constitute such Commission. In the case of State of Karnataka (supra) the State filed a suit in the Supreme Court for a declaration that the appointment of Commission by the Central Government was illegal and ultra vires on the ground, the said Act of 1952 did not authorize the Central Government to constitute such Commission. The Seven-Judge Bench, per majority, held, the suit maintainable and thereafter observed, the Central Government was quite competent under the said Act of 1952 to appoint such Commission and the suit was liable to be dismissed. On the issue of expenditure on Renkoji Temple, we are of the view, once the Central Government by affidavit made it clear, they no more funded the maintenance of the said Temple of the ashes, no interference on this score is required. On the Netaji Research Bureau, it is common knowledge of all concerned, the Bureau is working on the Research. Without any plausible reason being shown, there could not be any direction for stoppage of the grant. While we hold, the petitioners in all the three petitions would not be entitled to any relief as claimed, we would still observe and express our hope and trust, the Central Government, in their wisdom, would certainly keep it in mind and would explore the possibility, if possible, to find out the answer on the issue which is a long cherished desire of the people of the country. In short, it is our earnest endeavour to observe, the issue must not be closed forever. The writ petitions are accordingly disposed of without any order as to costs.