On Friday (12th January, 2018) a petition seeking an independent investigation into the death of CBI Judge Brijgopal Harkishan Loya came before a bench of the Supreme Court comprising of Justices Arun Mishra and Mohan M. Shantanagoudar. The petition was filed by a journalist from Maharashtra which was mentioned by Advocate Anitha Shenoy before the Chief Justice of India Dipak Misra on Thursday.
At the outset, Senior Advocate Dushyant Dave, representing Bombay Lawyers' Association, said the high court is seized of the matter and the apex court should not hear the pleas. Senior Advocate Indira Jaising, appearing on behalf of the Bombay Lawyers’ Association, said she has also instructions from her clients to apprise the bench that the matter was listed before the Bombay High Court for January 23rd. The bench, however, said it will look into the petitions but will also consider the objections raised.
The bench stated that the matter was very serious and required preparation. The counsel of State of Maharashtra was directed to procure the post-moretem report and file a reply to the petition. The matter has been scheduled for Monday (15th January)
The news reports done by the Caravan published on 20th and 21st November, 2017, raised several questions raised by the family with regard to the death of the 48-year-old CBI Judge in Mumbai, Brijgopal Harkishan Loya, the judge who was hearing the alleged encounter killing of Sohrabuddin Sheikh in 2005.
The reports have understandably created a furore in the legal fraternity. A public interest litigation was previously filed in the Bombay High Court seeking constitution of a Commission of Inquiry headed by a retired Supreme Court judge to investigate the death of former CBI judge presiding over the Sohrabuddin trial, Judge Brijgopal Harkishan Loya. A PIL had been previously filed before the Nagpur Bench.
While the circumstances surrounding the death of the judge have raised certain questions, there are also legal questions that must be addressed. For one, in the order passed in the case of CBI v Amitbhai Anil Chandra Shah it was held:
“The Administrative Committee would assign the case to a court where the trial may be concluded judiciously, in accordance with law, and without any delay. The Administrative Committee would also ensure that the trial should be conducted from beginning to end by the same officer.”
However these directions by the Supreme Court were clearly flouted as the first judge hearing the case JT Utpat was transferred from the CBI special court in mid 2014, and replaced by Loya.
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 on 1st December, 2014.
M.B. Gosavi – who took charge after Loya – began hearing Shah’s application for relief on December 15, 2014, and concluded hearings two days later on December 17, reserving his order. Another question that needs to be asked, is why the CBI never filed an appeal to these orders for discharge.
In addition to this, the controversy that broke out with regard to the Supreme Court judges today has been linked to this case, showing the far-reaching consequences of this issue in the legal fraternity. In the press conference called by four of the senior-most judges of the Supreme Court of India, the media asked the judges if their concerns were connected to the Judge Loya case to which Justices Chelameswar and Gogoi responded in the affirmative.There have been allegations against the CJI of allotting matters to benches arbitrarily and ignoring the seniority of judges when constituting benches of grave importance. (Read our article on the issue here.)