Above: (Left) Senior Advocate Dushyant Dave and Senior Advocate Mukul Rohatgi   

If the Chief Justice (of the Bombay High Court) has no access to justice himself, he is not fit to be the CJ, comments senior counsel Dushyant Dave

The Supreme Court bench of Chief Justice Dipak Misra and Justices A M Khanwilkar, D Y Chandrachud on Thursday (March 8) continued hearing the plea seeking independent probe into the mysterious death of Justice B G Loya who was handling the Sohrabuddin Seikh fake encounter killing case in which BJP President Amit Shah has been an accused.

Senior advocate Dushyant Dave, continuing his defence, said: “Allegations in our case is made our from the Caravan magazine.”

A 1959 judgment is referred to, to discuss the debate on article 32 of the Indian constitution. He said: “Even if it is possible that there is a question of fact, article 32 automatically becomes available for the trial by evidence. In 1997 judgment, the bench issued direction to the Haryana Public Service Commission in a similar case. It is that basic structure, that your lordships are called to protect today. Independence of judiciary is a part of the basic structure of the constitution. Your lordships have not got the assistance it should have.

“In a 1984 case, even in S.P. Gupta’s case, the then CJI allowed the filing of an affidavit. The state must not shy away from doing so now. The state is bound to assist the court without any questions,” he said.

Senior advocate Mukul Rohtagi contradicted Dave, saying that submissions before the court should be confined to the case and not made with respect to the duties of state.

At this Justice Khanwilkar corrected Dave that in the 1984 judgment, notice was issued only because the investigating agency said that they will submit the reports on a particular date.

Then, after Justice Chandrachud said that once a report is submitted, one has to go along with the merits or demerits of the reports as well, Dave said that an inquiry cannot be limited to whether Justice Loya died an unnatural death or not. The counsel referred to a 1984 judgment by the Supreme Court on bonded labour regarding this.

“Is the state assisting in realizing the constitutional objectivity?” asked Dave. According Dave, the state has failed (in reference to concocted documents). He referred to Section 2 of the Contempt of Court Act, 1995.

He said: “Satyameva Jayate (may truth triumph) is an achievable aim. If the course of justice is to be taken falsely, the entire purpose of justice is nullified.” He referred to the act’s paragraph 2, 7, 8 in regards to forged and fabricated documents being filed in court of record. “There are strong circumstances to show suspicious circumstances in this case. The government only said the Caravan report has been published, make inquiry into the case. The Caravan report was submitted by the investigation team, but the Caravan article did not mention any word on all the four judges.

“That was known only when Justice Gavai and Justice Shukre talked to the media and talked about the four judges. Justice Gavai and Justice Shukre were also there at Medetirina hospital,” he said. Then, “Mantrayla and high court has given permission to investigation commissioner to record their statements. All on the same day!

“It is very unusual that the CJ of the Bombay High Court gave permission to the investigating agency without consulting any other senior judge,” submitted Dave. “It was all prearranged and a preconceived act. The whole system is compromised and it is regretful to see that the judiciary is not able to take action,” he said.

“The Commissioner Intelligence did not visit a single place, did not talk to any person; it was all cooked for him. It requires an independent investigation as this is a very serious matter, Dave said. Dave submitted that the judges should have had asked more searching questions from the state when they made their submissions.

He also said that the statements recorded by the police are not even admissible before court. “And in this case, it’s not even recorded,” he said. “The two judges along with justice Loya would have rather called the 100 emergency number and taken help from the Maharashtra Police. If the Chief Justice has no access to justice himself, he is not fit to be the CJ, Dave submitted.

Rohatgi countered: “Their case is entirely malafide; with the help of this, the petitioner is attacking someone else under the facade of this case. The government specifically refers to the Caravan article. Justice Kulkarni from Bombay High Court, Justice Modak from Nagpur and Justice Burde from Bombay gave it on the 24th.

Justice Chandrachud said: “Unfortunately in our system, you don’t have to agree with us but we have to agree with you. Sometimes a person is so involved in the arguments that he forgets who’s a judge and who’s a lawyer. To this Dave replied: “One must, when the matter at hand is for a greater cause.”

Dave said he wanted that natural evidence be taken into consideration, i.e. video recordings etc and not these documents. This comment by Dave was after Justice Chandrachud pointed out the lacunae in translation from Marathi to English.

Dave requested the bench to allow the cross-examination of the four judges. He said that this report of investigation must not be relied upon as it was made in hurry. Dave filed an affidavit for the cross examination plea.

He said that the CBI is controlled by the government, “we don’t control the CBI.” He points out how, in the Sorabuddin case three judgements had political influence. “That was why this court wanted the CBI to inquire into that matter,” he said. “Every day in newspapers we read 3-4 witnesses are turning hostile. This raises questions on the judicial officers.

“Justice Loya called in for a powerful witness. And then a new judge was appointed who dismissed the case. Despite the order of this court, the CBI didn’t file any appeal. Usually, the Supreme Court in suo moto directs the CBI to file an appeal in such cases,” Dave said.

He continued: “Anuj Loya wrote a handwritten letter asking for investigation into the case of this father’s death. The most suspicious things is that on February 15, a letter by the son demanded an inquiry.

“This case raises question on:

1. Independence of judiciary
2. Justice delivery mechanism.
3. Totality of the circumstances i.e why this case requires independent investigation  and reconsideration
4. No free and independent trial.
5. Death of three people in totally illegal manner by way of fake encounter
6. Transfer of first judge.
7. No appeal by CBI.
8. Threats to Judge Loya

“There are more than sufficient suspicious circumstances and pray lordships to reject this report. The credibility of the report is hampered. The judges said exactly what was there in the report,” submitted Dave.

“If he did die under suspicious circumstances then it is very very serious case and we have not seen case like this post Independence. If the court accepts the report, it will be complete injustice and negation to the rule of law. This report must be rejected because this report is the only trump card of the government,” Dave said.

Senior advocate Prashant Bhushan started his submissions and said the post-mortem report is annexed with the Caravan report. The ECG report done at the Dande hospital was published by Indian Express newspaper, supposedly to refute the Caravan report. The ECG report is not annexed with the Caravan report. “Dr Kaul, head of cardiology of a hospital has opined that the ECG has no indication of a heart attack of this person (Justice Loya) in the past 1-2 hours. This is a normal ECG of a normal person. There is no heart attack as said by different cardiologist from reputed hospitals. Samples of the tissue of several sections of heart muscles of Judge Loya was sent for microscopic examination which showed normal functioning of heart /normal histology. In the report some narrowing of the arteries were observed. Tissues of myocardium, i.e. the heart tissues, were normal.

“The post-mortem report says the dura and the brain, both were congested,” he continued. “All the doctors said that there was no indication and evidence of serious heart attack in ECG which raises question on the genuineness of the ECG done. And if not, who has tampered with the ECG of Justice Loya and planted it there?”

The hearings will continue tomorrow.

—India Legal Bureau