Eternal India Encyclopedia

FREEDOM MOVEMENT

Eternal India encyclopedia

The tenth charge against Capt. Shah Nawaz Khan relates to the murder of one Khazin Shah and one Aya Singh of Gunner at Popa Hill (Burma) on 29th March 1945. The charge was “ LA.A. Section 41 (against the said Captain Shah Nawaz Khan alone). Committing a civil offence, that is to say, abetment, contrary to Section 109,1.P.C., of an offence punishable under Section 302,1.P.C., of an offence pun- ishable under Section 302,1.P.C., in that he (Captain Shah Nawaz Khan) at or near Popa Hill in Burma, on or about 29th March, 1945, did abet the murder by one Khazin Shah and one Aya Singh of Gunner, Mohammad Hus- sain of H.K.S.R.A. which offence was commit- ted in consequence of such abetment All the three accused pleaded 'not guilty' Sir N.P. Engineer, who opened the prose- cution said, that the accused were Indian com- missioned officers owing allegiance to the King and as such they are subject to the Army Act.... He spoke at length about the history of the formation of Indian National Army (INA), the role of Subhas Chandra Bose, and the support he derived from Japan, Germany, Thailand and Manchokia. Thirty witnesses were examined and the statements of the three prime accused were recorded. Capt. Shah Nawaz questioned the court's authority and described how he had joined INA and decided to be “loyal to my country and gave my word of honour to Netaji that I would sacrifice myself for her sake. Finally, Sir I wish to bring to your notice and to.....my country that no mercenary or puppet army could have faced the hardships as the INA did. We fought only for India's independ- ence. I do not deny having taken part in the fight but I did so as a member of the regular fighting forces of the provisional government of Free India who waged war for the liberation of their motherland according to the rules of civilised warfare. I, therefore, committed no offence for which I can be tried by a courtmar- tial or by any other court." Challenging the authority of the court Capt. P.K. Sehgal declared the trial by court- martial as illegal. About his asssociation with the INA he said, "I joined it from purely patriotic motives. I joined it because I wanted freedom for my motherland and was ready to shed my blood for it.... I claim that in doing so I committed no offence. On the other hand, I have served my country to the best of my ability." Lt. G.S. Dhillon too challenged the au- thority of the court to try him under the Indian

Army Act or the criminal law of India for any offence. The defence was conducted by 16 lawyers headed by Bhulabhai J. Desai. He defended strongly the setting up of the INA in his argu- ments: ". ......... In International law it is per- missible for those who are subject to a foreign authority to organise themselves and having an organised army to fight for liberation, whether it is successful or not. ........ my submis- sion is that the accused men before you are entitled to be declared innocent .......... " After analysing the arguments of the de- fence, the court came to the conclusion that "Regarding the applicability of the principles of international law.... the crown contended that..... such law had no binding force before the tribunal and that the tribunal could take cognisance only of the rule of domestic law ..." Finally the court passed its judgement on Shah Nawaz Khan, P.K. Sehgal and G.S. Dhillon (as published in the Gazette of Indian Extraordinary - 3 - Jan. 1946) “Capt. Shah Nawaz Khan, Capt. Sehgal and Lt. Dhillon have stood their trial by court- martial on charges against all three of waging war against the King Emperor, Lt. Dhillon being also charged with murder and the other two with abetment of murder. The findings of the court are that all three are guilty of the charge of waging war, while Capt. Shah Nawaz Khan is also convicted of the charge of abet- ment of murder, Lt. Dhillon is acquitted of the charge of murder and Capt. Sehgal of the charge of abetment of murder. Having found the accused guilty of the charge of waging war, the court was bound to sentence the accused either to death or to transportation for life; no lesser sentence was permissible under the law. The sentence of the court on all three accused is transportation for life, cashiering and forfeiture of arrears of pay and allowances. No finding or sentence by courtmartial is complete until confirmed. The confirming officer, in this case the Com- mander-in-Chief, is satisfied that the findings of the court are in each instance in conformity with the evidence and he has, therefore, con- firmed them. The confirming officer is, however, competent to mitigate, commute or remit the sentences. As already stated in the press, it is the policy of the Government of India to bring to trial in future only such persons as are alleged, in addition, to waging war against the State, to have committed acts of gross brutality; and it has been announced that in reviewing sentences in any trial the competent authority

will have regard to the extent to which the acts proved offences against the canons of civilised behaviour. Lt. Dhillon and Capt. Sehgal have been acquitted of the charges of murder and a betment of murder as it has not been alleged that they were guilty of other acts of brutality. Although Capt. Shah Nawaz Khan has been found guilty of abetment of murder and the acts proved against him were harsh, the pre- vailing circumstances have been taken into account by the confirming officer. The Commander-in-Chief had decided, therefore, to treat all three accused in the same way in the matter of sentence, and to remit the sentences of transportation for life against all three accused. He has, however, confirmed the sentence of cashiering and forfeiture of ar- rears of pay and allowances, since it is in all circumstances a most serious crime for an officer or soldier to throw off his allegiance and wage war against the state. This is a prin- ciple which it is essential to uphold in the interests of the stability of any government by law established, present or future.” Thus ended the great INA trial which created a new awareness towards full inde- pendence throughout India; it was conducted with fairness and proved the quality of the British justice. The trial also exhibited the forensic ability of Bhulabhai Desai. “The first I.N.A. trial has been perhaps the most notable trial in the history of British India; indeed, in some respects it may rank as one of the most notable trials in history. lt had a double aspect. It was the occa- sion of a debate onfar-reaching and, in some respects, altogether novel prepo- sitions of International Law, a subject of lasting interest to lawyers and those interested in law. To the ordinary citizen it was the fascinating and inspiring story of a heroic effort - the most famous in Indian history - of a great Indian patriot, sup- ported by thousands of his countrymen , to liberate their country. It must remain a matter of regret that legal issues so far-reaching and involving subtle ques- tions of International Laws should have arisen before a tribunal which was not composed of men trained in law and which was unfamiliar with the admini- stration of justice."

- M. C. Setalvad