On Friday (9th February) the hearing in the two writ petitions seeking independent probe in the death of CBI Special Judge Loya resumed before the Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar. Senior advocate Indira Jaising, appearing on behalf of intervening petitioner Admiral Ramdas, made her submissions before the bench.
At the outset she stated that her submissions were two-fold- one on the basis of law and the other on the basis of facts. Her submissions focussing on the basis of law dealt with the provisions of Section 174 of Cr. P.C.
Emphasising on the term ‘accident’ in subsection (1) of the aforesaid section 174 and the phrase ‘any doubt regarding the cause of death’ in clause (iv) of its subsection (3), she submitted, “The police documents say ‘Accidental Death Intimation’ and also express doubt regarding the cause of the death. So why was the nearest Executive Magistrate not approached?”
Referring to the provisions of section 176 of the Cr. P. C. on the inquiry by a magistrate into a death covered under section 174, she stated that section 176 permitted the magistrate to even disinter a dead body for examination. Further, the explanation appended to the section defined ‘relative’ as ‘parents, children, spouse, brothers and sisters’. Therefore bringing about the question as to how Judge Loya’s dead body was handed over to Dr. Prashant Rathi, and why his family was not present at the time of the post-mortem?
She explained that the “Accidental Death Summary” of PS Sitabardi was what triggered the application of section 174 of Cr.P.C. She pointed out that the Intimation to the Sub Divisional Magistrate was sent only on February 2, 2016, why not on December 1, 2014?
Ms. Jaising went on to bring out suspicious circumstances on the basis of facts. She also brought it to the notice of the Court that the inquest panchnama of the personal belongings was not produced before the bench. She indicated certain discrepancies with the clothes as well as the mobile phone that was on the person of Judge Loya when he died. She also indicated the inconsistency with the name recorded as “Brijmohan Loya” in all medical documents including the Post-Mortem Report despite the presence of 4 judicial officers and and several High Court judges .
“Finally, the case diary has not been furnished. It is important to know the time at which the police station received a call that an accidental death has ensued. The diary would also provide a minute by minute account of the happenings so that Your Lordships can decide if these documents have been generated contemporaneously or later”, she continued.
She also indicated that the ECG report allegedly carried out by Dande hospital according to a statement on record was false since it was not furnished before the Court and the person making the statement had not been an eye witness to the procedure.
Ms. Jaising also went on to question the manner in which the cause of death was determined to be a heart attack.“To ascertain the cause of death, it is necessary that the family members narrate the clinical history which is to be matched with the hospital reports. But the requirement of section 174 of the Cr. P. C. was not followed”, she submitted.
Judge Loya’s sister had stated that he had no previous condition or family history, and that his lifestyle was contrary to the habits that are regarded as factors leading to heart patients.
“When there is doubt regarding the cause of death, it is for the Investigating Officer to decide whether to pursue the procedure under section 174 of the Cr. P. C. or to register a FIR. In this case, neither was done.”
She reiterated that the statement of Anuj Loya, son of Judge Loya, made in 2015 that if something were to happened to him or any of his family members, the Bombay High Court Chief Justice Mohit Shah and the others involved in the conspiracy shall be responsible, needs to be taken into account. And the contradictory submission before the Commissioner of State Intelligence that no inquiry into the death is sought should be understood to be made under duress.
“An investigation is needed because this has become a matter of public importance and also because the public agencies have not done their duty”, she iterated.
Referring to the 2012 Supreme Court order in CBI v. Amit Shah, transferring the Sohrabuddin trial to Maharashtra from Gujarat and directing the matter to be heard by a single judge, she submitted, “Just one day before the hearing, judge Utpat was directed by the Administrative Committee of the High Court to report to Pune. How could the transfer have been made without an application to the Supreme Court?”
Senior advocate P. V. Surendranath, appearing on behalf of intervenor All India Lawyers’ Union, pressed the prayer for a direction under Article 142 of the Constitution in respect of the security arrangements of judicial officers as well as guidelines for the independence of the judiciary from the executive.
Mr. Mukul Rohatgi shall make arguments on behalf of the state of Maharashtra on Monday.
This issue came into the limelight after a news report was done by the Caravan raising several disconcerting questions with regard to the death of Judge Loya, who was hearing the alleged encounter killing of Sohrabuddin Sheikh in 2005. The article contained accounts of the family of Judge Loya who cited various instances that pointed towards foul play. Anuradha Biyani, sister of Judge Loya and a medical doctor in Dhule, Maharashtra admitted that her brother had confided in her that he had been offered Rs.100 Crore by Mohit Shah for giving a favourable judgement, the then chief justice of the Bombay High Court. Loya’s father Harkishan also mentioned that he had offers to deliver a favourable judgement in exchange for money and a house in Mumbai.
According to a news report in the Times of India, on 28th November 2017, Anuj Loya, son of Judge Loya met with the Chief Justice of the Bombay High Court, Majula Chellur, and stated that him and his family has no suspicion regarding the death of his father, and they wish for no inquiry to take place. However, a subsequent news report done by the Caravan, shows a letter which was allegedly written by Anuj Loya which conveyed a desire for an inquiry to take place into the death of his father.
Whether the outcome of the petition is yet to be seen, a question that must be raised is the issue of the safety of the family that has gone on record to make accusations against some of the most powerful forces in the country.
Read the order here.
Read the written submissions here.