Eternal India Encyclopedia

Eternal India

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FREEDOM MOVEMENT

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