In his last letter from prison, Bhagat Singh wrote, “I have been arrested while waging a war, for me there can be no gallows, put me into the mouth of cannon and blow me off.” Singh was incontrovertibly one of the subcontinent’s greatest freedom fighters; he was adamantly courageous, genuine revolutionary, passionately socialist and fundamentally anti-imperialist.
In the year 1907, Singh opened his eyes in a Jatt family of freedom fighters at Tehsil Jaranwala, District Lyallpur. As a teenager, he witnessed the violence on the native Indians – for instance: Jallianwala Bagh Massacre 1919 and Nankana Sahib Carnage 1921. European revolutionary movements, work of Marx, Lenin and Trotsky and Imperialist brutalities shaped Singh’s iconoclastic ideology. After working with numerous revolutionary organisations, he finally joined Hindustan Socialist Republican Association (“HSRA”) in 1928.
After the murder of John Saunders (Assistant Superintendent of Police) on 17 December 1928, the Government promulgated some laws which profoundly contravened lawful interests of native population especially the proletariat class. To register dissent, Singh and Batukeshwar Dutt, on 8th April 1929, threw a small scale bomb onto the walkways of the Central Assembly and showered leaflets on the members stating “It takes a loud voice to make the deaf hear”.
Singh and Dutt were accused of throwing bombs to kill or cause injuries and were charged under Section 307 of the Indian Penal Code (IPC) and Section 3 of the Explosive Substances Act. The charge sheet, submitted in the Court of Session judge Leonard Middleton, was full of surmises wherein it was alleged that Singh fired shots from a gun whilst scattering the leaflets and also the bomb was thrown with intention to kill. The Judge readily swallowed the prosecution’s story and held both Singh and Dutt guilty and sentenced them to life imprisonment. Singh was sent to Mianwali Jail and Dutt to Borstal Jail in Lahore, gaining nationwide popularity as he started a hunger strike against ill-treatment, discrimination (between European and Indian prisoners) and for not being considered a political prisoner.
Meanwhile in April, police arrested some members of HSRA – seven of them after becoming approvers, connected Singh with murder of Saunders. Consequently, another trial began on 10 July 1929 with charges of murder on Singh, Raj Guru, and Sukhdev. Additionally, Singh and the 27 others were charged with plotting a conspiracy for waging a war against the King. Rai Pandit Kishen, a first class magistrate, was appointed the judge for this trial. Singh was still on hunger strike and was brought to the court in a stretcher (handcuffed); his weight had drastically fallen from 133 to 119 pounds. A prosecution team comprising Carden Noad, Kalandar Khan and Jai Gopal was formulated. The case proceeded at tortoise pace, therefore, Carden Noad filed application in Lahore High Court (LHC) seeking directions to the magistrate for a swift trial, and nonetheless, LHC dismissed the said application.
The Viceroy, Lord Irwin, in utter frustration and dissatisfaction, declared emergency on 1 May 01 1930 and promulgated Ordinance No. 3 of 1930 (Ordinance) to set up a Tribunal for trying Singh and others. The case was transferred from magistrate’s court to the tribunal, which comprised Justice Cold stream, Justice G. C. Hilton and Justice Agha Hyder. The prosecution primarily relied on the statements of approvers namely of P. N. Ghosh, Hans Raj, and Jai Gopal. On 10 July 1930, the Tribunal decided to press charges against the accused and copies of the same were served on them in jail, together with copies of an order intimating them that their pleas on the charges would be taken tomorrow. This trial ended on 10 September, 1930 and on 7 October 1930 (three weeks before the expiry of the Ordinance) the tribunal held Singh, Sukhdev, and Rajguru guilty of murdering Saunder and sentenced them to death by hanging. The three were hanged on 23 March 1931 at 7:30 pm in the Lahore jail. The jail authorities surreptitiously cremated the three men outside Ganda Singh village, and then threw their ashes into the Sutlej River.
Deep jurisprudential analysis of the Singh’s murder trial demonstrates that the same suffers from grave procedural and legal infirmities; some of them are discussed as under;
First, the committal proceedings pending before the magistrate’s court were unjustifiably and unlawfully transferred to the Tribunal. (Circumstances were not exigent, no extra ordinary measures were required).
Second, the constitution of Tribunal and subsequent trial conducted there-under was a departure from the standard procedure as envisaged by Code of Criminal Procedure (CrPC) and Indian Penal Code (IPC). As per the law, murder trial should have been conducted by a Session’s Court.
Third, through the Ordinance the Appellate jurisdiction of the LHC was consciously and maliciously ousted. Although, the only available appeal before Privy Council was availed but same was dismissed by Judge Viscount Dunedin in an arbitrary manner without appreciating the fact that the Tribunal misread evidence, misapplied the law and committed grave procedural irregularities.
Fourth, Rajguru filed a petition in LHC challenging the Vires of the Ordinance, he rightly argued that the Viceroy had no authority to abridge the customary process of a trial and that a Tribunal can be set up only under conditions of breakdown of law and order. However, the petition was dismissed.
Fifth, the viceroy exercised undue influence on the Tribunal as Justice Syed Agha Haider was removed from the Tribunal, when he tried to closely question the prosecution witnesses and detached himself from the Tribunal’s order of removal of the accused from the court.
Sixth, the act of incorporating “absentee accused provision” which enabled the court to dispense with the attendance of the accused and award the death sentence ex-parte was contrary to the fundamental principle of natural justice i.e. “no one should be condemned unheard”. The accused refused court appearance because of Ill-treatment in prisons; the government instead of addressing the issue shamelessly curtailed their right to defend themselves.
Seventh, A.R Kapoor (defence counsel) was allowed to only cross examine five prosecution witnesses as a result remaining 457 prosecution witnesses were not cross examined. In a criminal trial, the objective of evidence is reconstruction of truth and if opportunity to cross examine is not provided then truth cannot be reconstructed or ascertained. Hearsay evidence is not recognised in criminal jurisprudence because it cannot be cross examined and it will not be exaggeration to assert that Singh’s trial to some extent was also based on hearsay evidence.
Eight, the death warrant of Singh and others was suspended by authorities when the convicts filed appeal before the Privy Council. The jail authorities were not in a position to execute the death sentence in the absence of a fresh warrant. Even the Tribunal which could have issued a fresh warrant had ceased to exist as the Ordinance had lapsed due to non ratification by Central Assembly. The Governor of Punjab approached the LHC for issuance of fresh warrant which the LHC did but these warrants were issued unlawfully and without jurisdiction.
Lastly, FIR of Saunder’s murder was registered with the Anarkali police station on December 17, 1928 at 4.30 PM against two unknown gunmen (Singh name not mentioned). The complainant stated that the man he followed was Hindu face with small moustaches, five feet 5 inches tall, slim body, wearing white pajama, grey kurta and small black chishti hat. The evidence of Hamilton Harding (superintendent of police), was scandalous and shocking as he stated that he had filed FIR against the accused under precise orders from the Secretary, Governor of Punjab and that he was unaware of the facts of the case.
Britain always takes pride in for being inventor of ideas of democracy, rule of law and justice, however, in Singh’s trial the Empire hypocritically failed to recognise and apply the said principles. It seems like doctrines propounded by renowned English jurists like AV Dicey, Hardinge Giffard (1st earl of Halsbry), William Blackstone and Edward Coke disappeared from law books when Singh’s Trial commenced. The trial was a clear case of judicial assassination, an act of wanton retribution, opposed to any civilised code of law, antithesis of justice and artificially manufactured to meet political ends of a unsympathetic government. The trial brings into limelight how the British Raj, twisted and broke the laws that were its own creation, flouted the fundamental rules of natural justice and ridiculed the criminal justice system to eliminate a twenty three year old revolutionary.