On Friday (2nd 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.
In the last hearing on 22nd January, the bench asked for petitions pending before the High Court of Bombay and its Nagpur bench to be transferred to the Supreme Court. The Court also ordered the Bombay High Court and other High Courts to not entertain any petitions where the fact in issue is identical to the petitions before the Supreme Court.
The hearing on Friday began by submissions made by Senior advocate Dushyant Dave appearing on behalf of Bombay Lawyers Association who stated that he had prepared a note with regard to the report of the commissioner of intelligence of the state of Maharashtra. He called the report a “bundle of contradictions” and prayed for the report to be brought on record by way of affidavit to initiate proceedings under section 340 Cr.PC.
He also submitted that the four judicial officers whose statements were produced by the respondents, none of them were present with Judge Loya during his time of death. It was stated that there was only a person named Dr. Prashant Rathi who claims Loya had called him. He was taken to the Dande Hospital in Nagpur, from where he was shifted to the Meditrina Hospital. The police report dated December 1, 2014 or any other document does not mention the presence of any other judicial officer.
Senior advocate Mukul Rohatgi appearing on behalf of the government of Maharashtra raised objections to this claim, stating that Judge Loya had stayed at Ravi Bhawan with two other judges. He pointed out and questioned why these objections hadn’t been raised for 2 years after the death of Judge Loya till the story appeared in the Caravan. He submitted that thereafter the Chief Justice of the Bombay High Court directed the DGP to conduct a discreet inquiry and he spoke to the four judicial officers who stated that they had stayed at the government guesthouse with Loya and that the deputy Registrar had been called.
Mr. Dave then referred to the order of the Supreme Court on September 27th, 2012, which mandated that the trial be shifted from Gujarat to Maharasthra stating that it was necessary to preserve the integrity of the trial. The order had also stated that the trial be heard by the same judge from start to finish, and therefore the administrative order of the High Court for transferring Judge JT Utpat was in violation of the Supreme Court order
On 6 June 2014, Utpat had reprimanded Amit Shah for seeking exemption from appearing in court. After Shah failed to appear on the next date, 20 June, Utpat fixed a hearing for 26 June. The judge was transferred on 25 June. Judge Loya was appointed to the special CBI Court in June 2014. On 31 October 2014, Loya, who had allowed Shah the exemption, asked why Shah had failed to appear in court despite being in Mumbai on that date. He set the next date of hearing for 15 December 2014. He died in the early hours of 1st December 2014.
Elaborating on the contradictions in the statement dated December 1, he advanced, “The statement was recorded at PS Sitabuldi. There has been a falsification of records by the police. If the other judges were present, Brijgopal Harkrishan Loya would not have been mentioned as ‘Brijmohan’ Loya by Rathi, who claims Loya was a relative of his uncle. Also, Loya allegedly complained of chest pain at 4 AM. Why was he not admitted in a hospital till 6:15 AM? Besides, the claims regarding Dande Hospital are false; there is no mention in that regard. The statement mentions only Meditrina Hospital.”
Mukul Rohatgi at this point questioned, “Should the statement of 3 judges and the transfer order of the High Court be dismissed? Are the Chief Justice of the High Court and 5 other judges not telling the truth?”
To which Mr Dave responded saying that the judges have not given statement to the police but only gone to the press. He asked for the judges to be directed to file affidavits.
Upon mention by Mr. Rohatgi that fellow judge Shriram Modak had informed Loya’s wife of his illness at 5 AM, Mr. Dave exclaimed, “Thank you for drawing attention to the wife’s statement. It was procured under pressure. Modak has said in his statement that he does not know who had called Loya’s wife.”
Raising doubts on the credibility of the post-mortem report in so far as it describes the condition of the body of Loya, Mr. Dave said, “As per the report, the post-mortem was conducted at 10:50 AM, four hours after the death. The body should have been completely stiff by then.”
Senior advocate Indira Jaising, representing intervening petitioner Admiral Ramdas, added that there has been overwriting in the post-mortem report- “Under December 1, either November 30 or 31 is written”. The bench agreed with her in this behalf.
Mr. Dave pointed to the contradictions in the form and the legal notice for the transfer of the body by the same doctor. In respect of the forensic investigation of the body, he said, “Is this how the death of a sitting judge is investigated? That the body was forwarded on January 1 and the report only came on February 5?”
It was also brought to the attention of the bench that there were no entries in the guestbook at Ravi Bhavan under the name of Judge Loya though the name of every judicial functionary is mentioned in it.
Based on a letter of the assistant commissioner of police procured in a RTI query, Mr. Dave brought to the attention of the bench that Loya’s security had been withdrawn on November 24, 2014. He cited the judgement in Delhi Judicial Services v State of Gujarat where it was observed that any onslaught on the subordinate judiciary was an attack on the entire institution and not just one man.
Senior advocate V. Giri prayed that the ECG reports of both hospitals be placed before the bench. Ms. Jaising also prayed that the register of Ravi Bhavan, the ECG report if any performed and the complete statement of registrar Rathi in which three sentences are missing be filed. Mr. Rohatgi agreed to produce the aforesaid.
The matter is scheduled for further hearing on Monday at 2 PM.
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 order here.