On Monday (5th February), a bench headed by Chief Justice of India Dipak Misra, and comprising of Justice DY Chandrachud and Justice AM Khanwilkar heard the petitions seeking an independent investigation into the death of CBI Judge BH Loya, who was hearing the alleged fake encounter case of Sohrabuddin Sheikh at the time of his death. The petitions were filed by Maharashtra-based journalist Banduraj Sambhaji Lone and Congress leader Tehseen Poonawalla. Thereafter a number of intervention petitions were attached to this including one by Admiral Laxminarayan Ramdas, former chief of Naval staff.
At the outset, Senior advocate Dushyant Dave appearing on behalf of the Bombay Lawyers’ Association, sought permission to bring on record additional evidence, including the video recordings of Judge Loya’s father and sister. Senior advocate V. Giri, appearing on behalf of Tehseen Poonawalla, proceeded to elaborate on the contradictions in the 2017 discreet inquiry report of the Commissioner of State Intelligence. Throwing light on the contradictions, he continued, “There is nothing on record to show that Judge Loya stayed at the government guesthouse Ravi Bhawan in Nagpur. There are No medical reports of Dande Hospital. Also, there has been no verification has been made of the doctors. Besides, there is no ECG report”.
Emphasising on the reasons why an independent inquiry is indispensable, Mr. Giri submitted that a letter dated November 23, 2017 of the Commissioner of State Intelligence addressed to the Chief Justice of the Bombay High Court named four judicial officers and 2 high court judges who allegedly accompanied Judge Loya. He questioned how that conclusion was arrived at prior to the inquiry. It was indicated that upon receiving permission from the High Court, instead of seeking appointments with the judicial officers, the Commissioner sent them letters. It was also questioned by Mr Giri why he only met the judicial officers and did not record the statement of other associated persons. “Even Prashant Rathi’s statement was taken by some other person. It seems he conducted the discreet inquiry sitting in his armchair in Mumbai”
Mr. Dave stated that he would be filing an application under Order 11 of the Supreme Court Rules to seek permission to cross examine these judicial officers.
“The accidental death report was registered at PS Sitabardi based on the statement of Prashant Rathi. Why did the intimation not come from the four judicial officers? Sub inspector Munthe Constable Pankaj of PS Sitabardi were not examined. We have documents to show that the inquiry under section 174 Cr. P. C. was actually handed over to PS Sadar but there is a discrepancy as to whether at 4 PM or 8 PM”, Mr. Giri continued.
At this point, Senior advocates Harish Salve and Mukul Rohatgi retorted that the case diary of the accidental death was transferred to Sadar at around 4 PM. In addition, Mr. Salve had earlier clarified that Prashant Rathi’s statement was recorded at around 8:30 AM and the same had been transferred to Sadar; that there was no second statement.
Justice Khanwilkar also concurred with Senior Counsels for the state of Maharashtra regarding the case diary being recorded at Sadar at around 4 PM and being copied at around 8 PM.
Continuing, Mr. Giri submitted, “I am unable to find an explanation for why the accidental death summary, in respect of an incident dated December 1, 2014 and for which the summary had already been registered at 4 PM on the said date, an accidental death summary was again registered in 2016”.
In his turn, Senior advocate Pallav Shishodia made a comparative summary of the news reports appearing in the Indian Express and the Caravan concerning the circumstances surrounding the death of CBI Special Judge Loya. He stated that Indian Express relied upon inter alia the record of medical treatment and the post-mortem report and concluded that Loya’s was a natural death, though premature, on account of the cardiac arrest. He stated that the Caravan based its story on “unevidenced allegations of bribery through the conduit of the then Chief Justice of the Bombay High Court”.
Ms. Jaising commenced her submissions with the remark, “If Mr. Shishodia’s client did not want an inquiry, then why was the petition filed?”
This prompted a war of words between the Senior Counsels. “The Petition was only filed to get the Bombay High Court matters transferred to the Supreme Court. The nature of the averments reveal the purpose of their petition”, exclaimed Mr. Dave.
Continuing with her submissions, Ms. Jaising drew the attention of the Court to the comments made in media of the two judges of the Bombay High Court.
Reiterating that “16 persons statements have not been recorded” and deliberating on “the law relating to why and when an inquiry may be conducted”, Ms. Jaising stressed on the phrase ‘reason to suspect’ in section 157 Cr. P. C., dealing with the ‘Procedure for inquiry’.
Thereafter, she drew the attention of the bench to three pieces of evidence not produced by the state of Maharashtra and she stated should be enough to call for an inquiry. The register of Ravi Bhawan was procured in which the name of judge Loya was not noted. “If you take a look at entry 47, it shows Prakash Ambedkar as having resided at the guesthouse in the year 2017, though the register is of the year 2014. After this entry, there are blanks and then there are blanks and then are the name of Shrikant Kulkarni and Shrimati Phansalkar, both of whom came from Bombay. Judge Loya’s name is not here.”
It was indicated by Ms. Jaising that the name of everyone who stays at the guesthouse, regardless of rank, was inserted in the register. Therefore, the reasons why Judge Loya’s entry was not mentioned in the register was suspicious. She also indicated that judge Modak’s statement that ‘three of us’ stayed in one room was suspicious stating that it was strange that three people stayed in a room.
The hearing will continue on Friday (9th February) at 2 p.m.
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.