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Petition scandalous, says bench, stops short of issuing contempt notice

The Supreme Court bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud on Thursday (April 19), hearing the plea seeking independent probe into the mysterious death of Justice B H Loya who was handling the Sohrabuddin Sheikh case, ordered that there was no merit in the case and that the case was dismissed.

The bench said that the death was a natural death and that there will be no probe. The court fell back on the statements of the judges who were with Judge Loya at his time of death and said: “We can’t doubt the statements of the judicial officers who were with Loya.” in his last hours. The court further added that the death was natural and unfortunate. Then he said: “Documents placed on record and their scrutiny establishes that Judge Loya’s death was due to ‘natural cause’.”

Official records say that Judge Loya – the special CBI judge who was overseeing the investigation of the Sohrabuddin fake encounter case in which BJP president Amit Shah was an accused – died of cardiac arrest in Nagpur in 2014.

ON Thursday the CJI started reading his judgment and said: “All the three judges stayed in the same room. There is no basis for the court to doubt that. In the reference book, there is no mention of Judges Modak and Loya. All of them occupied the same room. No doubt on that.”

He further referred to the to the Cavaran report, mentioning Loya’s conversation with his wife. Then he said: “An attempt was made to scandalize this case.” He also referred to the spectrum of the evolution of the public interest litigation and how the PIL was “misused, which is a serious issue to look into.”

He said: “It is the duty of the court to look into the fact (as to) which PIL is genuine and which one is filed under the facade of political activity.

“Business rivalry is to be resolved in a competitive manner on the terms of the market,” he said. “The present case is indeed a case on point. The petitioners have no malafide intention, but to protect the independence of judiciary. The judiciary is to preserve the rule of law. If the court doesn’t stand by them, it will be a failure to our duty to impart justice.”

He further mentioned certain important submissions of senior counsels Indira Jaising, V Giri, Prashant Bhushan and Dushyant Dave. He said that Bhushan had once made the statement that justice Chandrachud and justice khanwilkar have been judges of the Bombay High Court and knew the judicial officers and might face a similar danger.

Regarding this the CJI said: “There are higher values that guide us.”

He said that serious attacks have been made on the two judges of the Bombay High Court. “We would not initiate investigation via criminal contempt of the lawyers had to face the law in a such a way.”

“No merits in the writ petition. Death of Judge Loya was a natural death. The petitions, pending applications stands disposed off.”

Backgrounder

Three years ago of Judge B H Loya, who was presiding over the CBI court in the Sohrabuddin Sheikh fake encounter case died under mysterious circumstances. Loya, who was staying at the Ravi Bhavan VIP guest house in Nagpur at the time, complained of chest pain at around 4 am and was taken to Dande Hospital. Loya was given some medicines there and then shifted to another private hospital, Meditrina, where he died (declared brought dead).

Two petitions were filed, respectively, by Tehseen Poonawalla, who claims to be a “political trendsetter” on his Twitter profile, and Bandhuraj Sambhaji Lone, who has been referred to in the media as a journalist from Maharashtra. The backgrounds of the petitioners, and the manner in which the petitions have been listed and heardsup since they were clubbed together on 12 January. On the day that it was filed, Lone’s petition was mentioned before Chief Justice Dipak Misra, who agreed to hear the matter the very next day—the same day that the Bombay High Court petition was also listed for hearing.

On January 12, the Bombay High Court heard the petition pending before it and listed its next hearing on January 23. Also on January 12, the Supreme Court heard Lone’s petition, which it clubbed together with Poonawalla’s petition. The same day, four senior judges of the Supreme Court held an unprecedented press conference to express their dissatisfaction with the chief justice allocating specific cases to specific benches. On January 19, the cases were again mentioned and heard by the chief justice’s court.

Thereafter several days hearing was made by the Supreme Court bench.

The entire details of all arguments are presented below: 

The details of the hearings

CBI special Judge Brij Mohan Loya died under suspicious circumstances in the November 30-December 1, 2014 night. The details of the death of a judge, who was deep into the Sohrabuddin Seikh fake encounter death case related to the Gujarat riots and in which BJP President Amit Shah (who was then home minister in the state of Gujarat) is one of the accused, makes for a thriller-like reading.

The case same back to the limelight when Caravan magazine published an investigative story on February 11 which brought  out several discrepancies and oddities in the death of the judge that had never been considered or had simply been glossed over. The issue became so big and contentious that the Supreme Court agreed to hear depositions made by several people in this, wanting to reopen the full case and asking for a Special Investigating Team (SIT) to be set up in the case.

India Legal, which has been following the minute details of the case as it opened up at the Supreme Court, presents special sections of depositions.

The expose by Caravan had many angles. It showed how this ramrod straight judge, who had only the courage of his conviction to assist him, was also known to be very careful about his health. As it was revealed later, he had no complications of the heart or otherwise. Secondly, the judge who succeeded him cleared the case – with a huge number of files and tons of data, which obviously he had no time to go through – in record time and promptly acquitted Shah and party.

Here are key depositions (selected sections), from the beginning:

January 22

The assigning of the petition by the Chief Justice to a bench headed by Justice Arun Mishra had, earlier this month, forced Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph to publicly protest against the ‘master of the roster’. Amid reports last week of the bench of Justice Arun Mishra having recused itself from hearing the contentious petition, the case had been transferred to Court Number 1 of the Chief Justice.

On this Monday, as the bench began its hearing in the case, it restrained all subordinate courts – high courts as well as trial courts – from entertaining any new petition relating to the mysterious death of Judge Loya while it also ordered that petitions related to the case currently pending in the Bombay High Court be transferred before it in the Supreme Court.

The proceedings saw heated arguments between lawyers appearing for various parties in the case (senior advocate Harish Salve for the Maharashtra government, Dushyant Dave appearing for the Bombay Lawyers Association, Mukul Rohatgi and Indira Jaising representing other parties) and also with the Chief Justice.

Salve, appearing for the Maharashtra government, informed the Supreme Court that a discreet inquiry was conducted by his client to probe the death of Judge Loya and four judicial officers had concluded that there was no foul play involved. Salve also asserted that the special CBI judge had died of a cardiac arrest.

Salve said the report filed by the judicial officers of Maharashtra on the death establish that Judge Loya had died of a cardiac arrest. He said that some other judges and a deputy registrar had accompanied Judge Loya to the hospital on the fateful day after he complained of uneasiness and that contrary to the claims made in the media report in question, there was nothing suspicious about the death of the judge at the Nagpur hospital.

However, Dushyant Dave contested the claims, stating: “There are so many things which showed that he (Judge Loya) never checked in (at the hospital mentioned by Salve)” and that the security granted to Judge Loya had been withdrawn before his death.

Calling for a probe, Dave said: “First judge (in the Sohrabuddin Sheikh fake encounter case) was transferred, second judge (Judge Loya) was murdered and the third judge discharged him (BJP president and accused Amit Shah).”

Rohatgi objected to Dave making his submissions in the case on grounds that he “is not a party in this matter” (the court was hearing the petition filed by Tehseen Poonawalla, who Dave was earlier representing but then recused himself after differences with Poonawalla over getting the case transferred from the Court of Justice Arun Mishra).

While Salve insinuated that the case was being “used” by certain individuals for possible vested interests, Dave shot back saying: “He (Salve) has destroyed the institution enough.”

As Salve and Dave engaged in a war of words, Justice Chandrachud tried to pacify the two senior advocates, saying: “There must be a sense of seriousness… this is a serious issue. You all have to assist the court.”

Justice Chandrachud then said that the court would like to scrutinize every document related to the case – whether it is the report of the Maharashtra government or those being referred to by Dave.  Justice Chandrachud said that the court cannot decide on the matter based on reports in the newspapers and that it has to “look at all the circumstances of the case.”

Dave and senior advocate Indira Jaising requested to be included as interveners in the case.

The Bench also directed for necessary orders to be issued to the Bombay High Court for transferring the cases listed before it and its Nagpur Bench in regard to Judge Loya’s death to the Supreme Court.

At this juncture, as Harish Salve requested the court to direct petitioners in the case against making the documents – including the Maharashtra government’s report – public. Dave registered a strong protest, stating that the “entire institution is trying to save one person… Amit Shah.”

Salve objected to the name of the BJP president being dragged into the case and the inference being attached to it while he submitted that “we don’t have any record which shows that he (Judge Loya) was murdered… taking the name (of Amit Shah) in the court is not right.”

As Salve and Dave continued their verbal duel, Justice Khanwilkar urged the lawyers to not cast aspersions on individuals or on Amit Shah as he is not a party in the case.

Senior lawyer Jaising perhaps interpreted the court’s remark as an order against dissemination of information contained in the documents submitted before the Bench and dubbed the remark as being akin to gagging the media. Referring to the Supreme Court’s recent verdict of not staying the release or upholding the ban imposed on the screening of the Deepika Padukone-starrer Padmaavat, Jaising burst into an argument, stating: “this court passed the Padmavati order to uphold freedom of speech and expression for media and now the court is telling the press to not report on this case.”

Jaising’s outburst was met with an immediate reprimand from Chief Justice Dipak Misra who shouted at the senior advocate, telling her that the court was hearing a petition on the need for an investigation into the suspicious death of a judge and not to examine freedom of speech and expression of the press. Jaising later apologised for her conduct.

February 2

Dave started by referring to the report of the Commissioner of intelligence which says that investigation be started again. “Why was the dead body not sent to his house or his family not informed? They say that they informed his friends. It is a serious matter. The State is resisting it. Our case is that the death is suspicious,” he said.

“In reports there are many discrepancies. Let’s accept (for argument’s sake) that the death was natural. Even then, what’s the harm in having an investigation if so many questions have come up before the bench? The bench must direct that let the pleadings be completed so that he has time to file the rejoinder.”

Senior counsel Mukul Rohatgi said: “There is some third, strange person named Mr Rathi whose statements have been recorded. And ironically, none of the judges were present at the time of the incident. Mr Rathi is a doctor in Nagpur.”

One of the respondents submitted that for the last three years nothing had happened in the matter but only after Caravan’s magazine’s “fake article”, this issue has again come to light.

Justice Chandrachud said: “Let’s have a bird’s eye view of this matter and the nature of this case and perhaps the documents required, so that the concerned documents can be produced by the respondents.”

Justice Chandrachud asked the counsel to brief the court about contradicting facts and to produce before the court the additional documents systematically that are required to be filed.

Dave submitted: “It was surprising that Special CBI judge M B Gosavi disposed of the case so quickly, even though thousands of pages of evidences was recorded. The CBI didn’t file any appeal who was directed to investigate despite a mandate by the SC to file chargesheet against Amit Shah (BJP President).”

Dave demanded independent investigation and said the demand for same judge in Supreme Court was made so that pressure could be built on the court.

Rohatgi countered Dave by saying: “Are we here for administrative issues, or for the death of a sitting judge? The high court is a party to the petition in writ petition 2.”

Dave said: “Caravan does not cast any aspersion on the judges. The reports do not inspire confidence as there are many contradictions. Why did Rathi become the informer in the case? And no immediate information to the family was given.”

Dave further argued by citing the contradictory issues: “On December 1 there was falsification of record by the police. Justice Loya was first taken to Dande and not taken to Lata Mangeshkar Hospital which has better facilities. This cannot be done to your own person, referring to the fact that Justice Loya was not taken to a good hospital. Why was Justice not taken to any other good hospital nearby? What happened between 4 and 6:15 am that day? During the treatment, at 6:15 am, Justice Loya was declared dead.

“No proper action and treatment was given to Judge Loya for two and-a-half hours in nearby hospitals despite him having complained about chest pains earlier. Police constable Pankaj was marked to be important. Even Mr Rathi did not mention the presence of an interim officer. Rathi in his statement to the Commissioner of Intelligence does not mention that any other officer was present at that time. Even now he submits the same. The entire family of Justice Loya lived in Mumbai. Is it acceptable to hand over the body of the judge to a stranger by the judges? Let them present the photographs of the marriage ceremony. Let us see who all were present at that time.”

Dave further pointed out: “Handling a dead body of a colleague to someone unknown is an unbelievable act. This is the most important controversy.”

Rohatgi countered Dave: “The handing over of the body of Justice Loya to a stranger never happened. A district judge was present there and his statement was recorded.”

Dave questioned: “Justice Loya died under the most questionable circumstances. Why was the body of Justice Loya sent to his native place when his entire family lived in Mumbai? The Chief Justice of the High Court was repeatedly going out of his way to help the subordinate judges. Hospital records say that the judge was brought dead. The judge was brought dead and the bill charged upon the body of the dead judge was horrific. Mr Rathi also says that the judge was brought dead to the hospital. A person who dies of heart attack and you do neurosurgery. Every fact is revealing shocking facts. How you can say that a person who died out of heart attack underwent neurosurgery?”

Rohatgi countered Dave: “Various tests were done on Justice Loya at Dande hospital. Dande hospital tried to survive Loya back to life but after doing every possible treatment could not save him, for which hospital has charged them.”

Dave retorted: “This matter requires serious consideration. Who will protect our judges if we don’t? Who will protect the judiciary if the apex court does not take serious action?”

Dave claimed that Justice Loya’s wife’s statement was taken under pressure. “Father, mother, sister and brother of Loya must be brought to this court and if they submit that they do not want to pursue the case, then we will not. They have been pressurized.”

On the falsification of post-mortem report, Dave submitted: “Post mortem report is also fabricated. Post mortem register to have recorded some other time when the post mortem report was done by 10:50 am. Post mortem was done 4 hours after the death. After 4 hours of death, the body becomes stiff.”

Senior counsel Indira Jaising, appearing for one of the parties, said: “The reports must be filed in original as the ones presented, seems to be overwritten.”

Dave said: “All documents are self produced and not authenticated due to which till date none of us know the fact. These reports hide a lot, they does not show the correct facts. (About) Unnatural conduct on the part of other judges as none of them responded when judge Loya complained about the chest pain.”

Dave again urged the bench for an independent enquiry.

Justice Chandrachud said: “On the basis of someone’s conduct (other judges/colleagues) it cannot be said that a particular statement is wrong, as people can act differently in different situations.”

To which Dave said: “The father and sister in a video recording have accused the Chief Justice. Let us not. Justice Loya’s wife/family could be easily contacted. Local judges, judges of the high court and judges of the district court were called upon after the death of the judge. Where were they during 4 am to 6:50 am period?”

Dave further asked: “Other judges would have informed about the bad health by taking numbers from the mobile of Justice Loya which is a very common act of a human being. Security of judge Loya was withdrawn a week before his death. A week before judge Loya’s death, no personal security was provided in Mumbai as confirmed by the commissioner.”

Dave further contended: “Judicial review is one of the important functions of the court. If such practice is allowed it will defeat the rule of law and make submission that certain issues need to be considered that includes no proper filing of chargesheet, discharge of Amit Shah, transfer of judges and discharge of other police officers.”

Rohatgi pointed out: “Justice Loya called nobody. He was not in a position to call anyone. It is recorded by the constable.”

Dave emphasized: “His mobile records must be obtained. It will give us a clear picture as to who was called and who was not. Mobile records of Justice Loya must be an object for consideration. There is some discrepancy in the records. These are matters on which light should be put.”

Another counsel submitted: “Statements of officers do not tally. The discrepancy as to whether the neurosurgery was done at the first hospital. At Dande’s ECG was done but it is nowhere shown in the records. There are some discrepancies in respect of ECG whether it was done or not and that is a very important fact in questioning about proper medical assistance.”

Jaising asked for three documents to be produced before the Court: original register on which overwriting has been done, ECG if any performed or not and the statement of Mr Rathi.

February 5

It was submitted before the court that a video recording of the father and sister has been found. The bench permits the admission of the recording.

Senior counsel V Giri, reading out the facts of the case, said there is no document which establishes what happened in Dande (hospital). The document does not reveal what treatment he (Loya) underwent. He said that Page 52 of the compilation documents submitted is incomplete. That page states two injections were given but there are no details by which it can be established what treatment was carried out.

He also noted that the time of the discharge of the body from the hospital differs. Discrepancies exist. Also, no verification has been done by the four doctors. He said documentary evidence would show three people were involved during the treatment.

He said police constable Pankaj Thakur has been mentioned in serial No. 4.

He also said that while post-mortem was conducted by doctor Kunda in Nagpur, no documentary evidence has been recorded. Which mean no statement has been taken of that doctor.

He further submitted that there are no proper documents to show when he was taken (to the hospital). No statement has been taken of the doctor as (apparently) Sitapuri police has no jurisdiction over the matter.

He said reference has been made of the register at Sadanpuri station. It was just that constable Pankaj Thakur handed over the reports/records along with all the belongings as the post-mortem was completed. No verification has been done as to Pankaj’s hand in this case and on the jurisdiction of Sitaputi Police Station.

Also, no verification has been done as to who handed over the body to Dr Rathi. There is discrepancy in this. On completion of the postmortem, the body of the deceased is issued along with all his belongings.

It was also submitted in court that on February 7, 2016, an accidental death report was made. Hence questions arise about how this was done when the documents show something else.

There are also discrepancies regarding the timings in the whole act. The first document referred to is the letter sent to the Chief Justice of the high court. This document is a letter from the Criminal Intelligence Department.

Dr Prakash Rathi’s statement has a significant role in the enquiry.

Dr Rathi’s statement was important, but it was noted that none of the statements were verified by the State Intelligence department.

Dr Rathi accompanied Justice Loya in the hospital and his statement at Dande was recorded. But Judge Loya was not taken to Dande hospital. At 6.15 am he was declared dead.

The documents must be recorded in a satisfactory manner, the counsel suggested. “Why was it not possible for the commission to record the statements and the documents if they were available?” he asked. “Why it is not possible for intelligence commission to go to Nagpur and record the statements?”

Counsel Giri mentions Dr Rohan Rai, whose reports have been mentioned. None of the doctors’ statements were recorded even though they were present in the hospital.

The statement of constable Pankaj Thakur was also not taken.

Senior counsel Harish Salve submitted that the second statements were recorded at the Sitapuri PS, which were picked up from somewhere else.

Senior counsel Dushyant Dave submitted his interest to cross examine under order 9. Senior counsel Indira Jaising submitted to the court that there are so many squibbles that “originals need to be seen by yourself.”

Senior counsel Dushyant Dave said that he will move an IA under Supreme Court rules to cross examine the persons who have given their statements.

Also, it still remains to be answered whether ECGs were done at Dande hospital or some other hospital.

Indira Jaising said no ECGs have been produced.

Giri said the post-mortem report does not suggest any damage to the brain. Why no neurosurgeon was considered?

At 4 pm he complained about the pain and at 6:15 am he was declared brought dead, Giri said. Judge Loya had come to attend the wedding at 4:15 pm and had complained of severe pain. He was taken to hospital where at 6:15 am doctor said Loya was brought dead.

Dr Prakash Rathi’s has given two concurrent statements. He was handed over the dead body of Loya, with all his belongings. The person who handed over the dead body is also attached to Sitapudi Police Station.

Accidental death is registered at Sadar police station. Registration is done at Sadar station at 4 and the body goes to the government hospital – both these events show different timings.

Page 40 shows registration of death timings that requires explanation as it shows false and contradictory timings. More interestingly, Giri said, the death summary was recorded in 2016, but the death took place in 2014.

Documents were collected, none of the statements were recorded. No explanation has been sought in the same case as to why the death summary was recorded in February 2016. The only doctor of Dande hospital who was examined by the police submitted that he was not present at the hospital when Loya’s body was brought in.

Who brought deceased to the hospital and who were present during the whole procedure is not clear.

There is nothing clear as to what exactly happened with the deceased, said Giri.

How Prashant Rathi came to be there at Seetapadi Police Station at 8:30am?

Justice Chandrachud pointed out to the counsel to recheck on the meaning of nakalbayaan. This was probably because the documents are majorly in Marathi.

He further stated that explanation was required regarding:

How was Prashant Rathi present at that time in Sitapudi PS?

How was the death summary concluded in 2016?

Giri said none of the statements were given by Prakash Rathi in 2014. No explanation was given as why the body was taken to another place when his whole family was in Mumbai.

Giri requested for fresh investigations.

Ina clubbed case, senior counsel Sisodia started his submission. He said the petitioner is a journalist and comes to this court to point contrasting articles in two publications, Caravan and Indian Express. He said  the judges can make their own decision on the place of funeral as printed in Indian Express. He talked about serious allegations of bribery too.

The allegation is that one judge was transferred and other judge was murdered because he refused a bribe of more than Rs 100 crores.

An argument arose thereafter.

Sisodia said he was not taking sides, but one should not be attacked with an allegation without proper enquiry.

Indira Jaising said if Sisodia’s client didn’t want an enquiry, why had the petition been filed?

Then, when Dave refused to listen to him, Justice Chandrachud said: “Let us not reduce the dialogue of this court (to an extent) that even a fish market feels ashamed of.”

Dave then alleged that Sisodia was taking the side of Amit Shah (BJP President) since he did not mention his side properly.

At this Sisodia said: “We are not the judge. We can put our views and not take sides.”

With tempers rising and decibels too, Justice Chandrachud said: “Let’s preserve the dignity of this court.”

But Dave and Jaising start again to present their views. Then, when Salve said “it is oppressive,” Dave started shouting, saying “what is oppressive? Is it that he appeared for Amit Shah first and then started appearing for the state? These people are making money and we (who) are fighting for justice are being slapped with notices from the Bar Council of India that our right to practice will be cancelled. We are here to fight for justice. Your lordships can do whatever they want to do.”

Jaising said: “There are three pieces of evidence present in the public domain, not produced by the state of Maharashtra.” She says that the State of Maharashtra has not produced evidence to show that justice Loya actually stayed there.

Referring to Page 81, entry number 47, where qa name mentioned read Prakash Babasaheb Ambedkar. Salve clarified it could be Bada Saheb, Prakash’s pet name. “Bada means youngest in Marathi,” said Justice Chandrachud. Bada Saheb is not the name of a person.

Another name mentioned in the register is Milin and then another name mentioned on another page is Kulkarni. However, Justice Loya’s name is not mentioned in the register, submits Jaising.

In the register the number of occupants of the room was to be mentioned. Except for one, rest all of them had room number. She asked: “How is it possible that three judges would stay in a room with an occupancy of two, when other rooms were empty as well?”

Also, why his name is not mentioned in the register?

February 9

Judge Loya death case: Reports replete with conflicting “facts”, says Jaising

The Supreme Court bench of Chief Justice Dipak Misra and Justices A M Khanwilkar, D Y Chandrachud on Friday (February 9) continued hearing of the plea seeking independent probe into the mysterious death of Justice B G Loya who was handling the Sohrabuddin Seikh case.

In Friday senior advocate Indira Jaising started her depositions. She said she would be dealing with two different sets of submissions, one dealing with facts and the other dealing with the law.

She referred to Section 174 of the CrPC and emphasized on the “accident” as mentioned in the bare provision. Accidental death report raises a doubt, she submitted. She said that the provision of the sub section 3 of the relevant section has been clearly violated. She said relatives include brother, sister, children and spouse under the explanation of the section.

On page 90 of the report that provision has been violated, she said.

She said that accidental death has been reported in the very first police document. There has been an error in the name here. While the judge’s actual name was Brij Gopal Loya, in ten documents it has been mentioned as Brij Mohan Loya. This raises doubts, she said.

According to provision of law, immediate intimation was supposed to have been given to the nearest executive magistrate (for accidental death). She said that this page immediately triggers section 174. Also, that the name of the deceased has been wrongly mentioned is a suspicious thing.

She refers to Inquest Panchnama which has not been reproduced.

She submitted that in page 23 (death investigation report) the inquest panchnama  has not been produced. This pertains to his personal belongings. She said that there is a discrepancy even where the clothes are described. One document says brown pants and another says grey pants.

A copy of the post mortem report has been given along with the missing page.

She referred to time of postmortem which was done between 10:30 and 10:55am. She also submitted that on page 25 of the postmortem report this correction of the name has been referred to.

The name of the police station varies too.

Also, the case diary, which is most critical, has not been produced. Cause of death was coronary artery insufficiency. That was the postmortem report. Yet, this was mentioned as an accidental death.

She said that the final report and inquest report does not comply with section 174 CrPC. S S Gajang was the inquiry officer.

She then came to the ECG. When was it done? Why has the report not been produced, she asked. “And why was it on 2/2/2016 and not earlier?” she asked.

She said that there were several reasons to suspect the inquiry. She asked why the ECG report was not produced even though it was a case of a heart attack. Was it done at the Dande or at the Medetrina hospital? That too is not clear.

The statement that an ECG was done is actually as per hearsay.

ECG not produced

Statement made contradicts the statement made by a judge R R Rathi. That, so far, is the most credible statement of the case.

And Rathi, who is an eye witness, has stated that ECG was not done as the machine was broken.

Jaising submitted that when Justice Loya complained of chest pains, he was taken to Dande hospital. The lift was not working so he climbed the stairs. An assistant doctor attended him, who tried to do the ECG but was unsuccessful because the machine was broken.

The assistant doctor gave two injections of antacids and wasted time. RR Rathi, being an eye witness says no ECG was done.

However, Dr Dande, being a hearsay witness says ECG was done.

After the continuous complain, Justice Loya was taken to Medetirina Hospital where he was declared dead due to heart attack.

This contradictory statement raises questions.

She submitted that the cause of death under Section 174, which was to be submitted, is not known. The clinical history is not known and therefore it is uncertain to tell that what was the cause of death.

Statement of judge Rathi is of most important  as he considers the death of Loya as unfortunate.

The judge’s sister, who is a doctor has gone on record saying he had no history of cardiac problems. She has said that has had a clean clinical history. Also, no doctor at either hospital had recorded any history of the patient.

February 12

Judge Loya death case: Rohatgi’s submissions mostly on technical grounds

The Supreme Court bench of Chief Justice Dipak Misra and Justices A M Khanwilkar, D Y Chandrachud on Monday (February 12) continued hearing the plea seeking independent probe into the mysterious death of Justice B G Loya who was handling the Sohrabuddin Seikh case.

In Monday senior advocate Mukul Rohatgi, representing the State of Maharashtra, did his submissions in defence. He said the copies of the Interlocutory Application (IA) has not been served. At that senior counsel Dushyant Dave said even if the copies had not been served to him, he managed to get that. He even said that the copies of the original reports have not been received by him as the respondents are saying that the registry didn’t allow to get this.

Rohatgi said that everybody filed PILs, and there are some rules and regulations related to this. Rohatgi then started reading the 2010 judgment defining what a PIL is.

He said the court should be prima facie fully satisfied with the petition and consider if that litigation would help the public at large. He said: :The article came (was published) on November 21, 2017. Nobody had done anything in three years; neither any party nor these PIL petitioners. Actually there is nothing to do. The article is baseless.

“We are in February and within these days all the PILs came, and cases were filed in the Bombay High Court. The article is based on hearsay evidences. And that is another aspect. These allegations are baseless. There petitioners… are fighting on baseless allegations. Since it is related to demise of a judge… this must be dismissed.”

He brought in the other angle, saying: “This is just for politics… There is nothing behind this. None on the other side read those statements of the Additional District Judges who were there at the time of incident. Judges who were eyewitnesses at that time, till other day, when the ambulance came. We have statements of those judges who were there like shadow.

Rohtagi  said that from November 30, or 29th night, the judges were with the deceased till the afternoon of 1st. “It is irrelevant to talk about sadar, why three judges stayed in one room. All is irrelevant. The only relevant part is the statements of those judges. The judges of the High Court including the Chief Justice, when informed early morning reached the second hospital within half an hour.

“That four judges of the high court, including the Chief Justice when informed reached the second hospital (Mediternia) at 7am. They were informed by a district judges.”

Rohatgi then referred to writ petition 19 argued by senior counsel V Giri. He said: “I will show the content and affidavit in support.” He was dealing with writ petition 19, submitted by Senior Counsel Giri.

The source of knowledge is media and newspaper. He now refers to a question of law. He said the source of knowledge was derived from media and newspaper. “The PIL is filed for safety and security of public at large but what is here for the public at large?”

He said: “This completely came after a nonsense. They don’t know what is ‘public at large’. Just woke up and filed a three-page petition, based on Indian Express, NDTV and Caravan. Every ground has been arrived at by the media. The allegations are reckless.

“If somebody cares to read the facts he would have understood why the second hospital directed a postmortem. Because he arrived dead.

“That’s the importance of post-mortem, because he collapsed on the way, so it suggested postmortem. Anyways, this is the nature of this petition. For postmortem family consent is not required.”

Rohatgi continued submissions, saying: “There was no homework, no verification. You relied on hearsay and filed the petition in the Supreme Court.”

Then Rohatgi referred to the second petition, which is writ no. 12(B). Referring to opposite counsels he said: “We know that the media always says contradictory things. There will be discrepancies in the articles of Carlos publishing house… How can this be true as per your knowledge?”

Then he went back to his rant about time lapsed. He said: “For three years you did nothing and now you say we are standing for judiciary… now they are scandalizing the law.”

Senior advocate Dushyant Dave said: “I am not here for my demolition.” He said they are arguing on facts.”

Rohatgi said: “Paragraph 1 showed that the petitioners are a body of advocates who practice in the High Court, but there is nothing about who their office bearers are and other things. Page 7 talks about the tactics about a particular event. It shows (this has) nothing to do with the unfortunate death of a Judge. And that is why the motive is different.” He said there was an ulterior motive in all this.

Then he pointed to another page. “Page 14, is there any relevance with the unfortunate death here? The trail commences after three years. The case has not been filed out of sympathy and out of concern for the judiciary. All this is aimed to get public sympathy. This is not because of the unfortunate death. Three years after the death a shocking story emerges on a media page.”

Re reiterates: “The motive is something else. The petitioner is just being used. This is the petition which shows the motive of this. And don’t know who is standing behind the petitioner.”

Justice Khanwilkar commented that the association should have been identified and detailed. For this Dave apologised.

Rohatgi then said that itw as not clear who were the members of the association of lawyers. “Paragraph 9 talks about Uke. Now who is Uke? It will be interesting to know.”

He mentioned about one advocate and said: “This advocate was in jail for contempt. He came before the Supreme Court and then goes back.”

The judgment called Kusumlata was referred to. In that case the long sentence given is just for personal gain. Nothing is related to the death.

He reiterates that the PIL was not for the benefit of the judiciary. A newspaper report cannot not be relied upon without verifying the facts. He then referred to a number of judgments and then asked the court to examine on that canvas.

The scope of this enquiry report is whether a judge died out of medical ailment or not? The question is not about proper treatment or compensation. The question is, did he die of a medical ailment or of a medical condition?” Rohatgi submitted.

“He died because of induced heart attack or he was poisoned. Because there is no other way. If there is a condition of unnatural death, either someone induced him with poison, because no other way could exist.” He was referring to the enquiry report”

He said: “Permission was sought from the Chief Justice and was granted for the district judges. No permission was granted for the high court judges. That is unimpeachable evidence. There is no conspiracy  involved in this case says. Page 1 is the letter of the Chief Justice. This letter shows that all other judges that day were invited to attend the meeting.”

He said: “Rathi is another local judge in Nagpur, along with Waikar. Dr Pankaj Harkutt works as a specialist in Medetirina. The crux is:

Judges were with him

They we’re summoned at 4am; “Upon the complain by justice Loya at 4 am, everyone assembled.

He was declared brought dead, that was why eth second hospital asked for a postmortem. It is very easy to create discrepancies. The judge was not left alone, even for a second,” Rohatgi submitted.

“Why they slept in one room? There can be no explanation for this, but the point is they used one room. Justice Loya was uncomfortable and hence he woke up. Other local judges were called upon. Justice Loya was taken to Dande hospital. Then the dead body was taken to the government hospital.

Then he said: “At Medetirina at 6am, the doctor comes out and informs about the death of justice Loya. At 10, the dead body was given for postmortem.

“Judge Rathi is the one who complained about the ECG machine. There are two Rathis – one who was present at the time of the ECG and informed that the machine was broken and one who received the dead body.”

He presented the testimony of the four judges (based on their memory). “This is the testimony of four judges. The important time is 4 Am to 6:30am.

He said there was no reason to consider the judges’ testimony as suspicious.

February 19

CJI says there will be ground for suspicion if Section 174 CrPC has not been duly complied with

The Supreme Court bench of Chief Justice Dipak Misra and Justices A M Khanwilkar, D Y Chandrachud on Monday (February 12) 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 Monday (February 19) senior advocate Mukul Rohatgi, representing the State of Maharashtra, continued his defence.

He said that the whole of 30th, they (the judges) stayed in Nagpur and moved to Ravi Bhawan that night. At night the judge (Loya) had complained of distress and was rushed to Dande hospital where they spent 15-20 minutes and an ECG was taken.

Waikar also reaches there, continued Rohatgi. “There they met Dr Pankaj Harkutt who is a cardiologist and are advised to go to Medetirina which is 2-2.5 km from there. Unfortunately at the next hospital he was declared “brought dead”, hence he did not die in Medetirina.

“If we had to discount everything what the four judges said then we have the postmortem report. The postmortem was done in a government hospital and then the body was taken to Ghategaon,” he said.

Then Rohatgi was back at castigating the published article. He said: “The intention behind the appearance of the article is questionable itself.” He referred to page 19 and submitted the Marathi version first. “Whatever is written in the article appears to be false and unverified, which appeared three years after the death.”

Then Rohatgi read out a postmortem report – Department of Forensic Science, Govt of India, Nagpur report. “As per police, at 1:12 am he suddenly complained of chest pain. At 4:00 am, he was brought to the hospital and was declared dead.”

Also, the report talks about the jurisdiction of the police station. The main centre for the postmortem centre is Sitamarhi. Then the counsel submitted various angles of the reason why any particular hospital was chosen.

At the bottom of the page is the nakal bayan (or witness) who is Prashant Rathi. The time of death is 16:00 hours. Whereas in item 1, the time of death was 4:00 hours.

The bill of Medetirina is referred to, wherein Dr Pankaj Harkutt is the referred doctor. “Judge Srikant Kulkarni was present when Judge Loya was admitted to the hospital,” Rohatgi reads. “When the ailing judge’s name was entered as Brij Mohan and not Brij Gopal. Hence the change in name in medical report is just a mistake of dictation on the part of judge Kulkarni.”

He referred to the ECG fiasco. “For a layman, any impulse taken by the ECG machine nodule, the ECG is recorded. Hence, one of the judges said that the ECG was taken and recorded. ECG was not done is not a conclusive fact in this case. There is disparity in the views regarding ECG.”

Page 59A was referred to, containing the statement of the father of Judge Loya.

He also tried to debunk the political angle, saying that the “Ishwar Vahiti concerned here was Justice Loya’s friend and not the one who is associated with the RSS.”

Senior counsel Indira Jaising, on the opposing side, submitted that nobody denies in this case that ECG was not attempted but it could not be done. She said that the article was preceded by a dismissal order of the person by the Supreme Court, which happened 2-3 months ago.”

Rohtagi submitted that “only because Vahiti  was a friend and that too close, he was handed over Judge Loya’s body. He established his close relationship with Judge Loya in court.”

He explained: “Maharashtra is divided into ten commissionarates and 67 districts.” He place before the court a judgment in which in Maharashtra special powers are given to ACPs to conduct the investigation. He submitted that the investigation was carried out properly and there was nothing suspicious about the natural death of the Judge Loya which was only due to heart attack. He again raised the question as to why a petition has been file in the Supreme Court after a long time.

He submitted that there was nothing wrong in procedure as well, because as per the Bombay police manual of 1959 a police officer is authorised to conduct investigation in the case of suspicious deaths.

Senior advocate Dushyant Dave stated his submissions. He said that the pressure which is built in this case is important to be considered and so it becomes important to issue judicial notice. He also said that things were not always as it appears on the record and as this case is related with the death of a judge. “Hence it should be considered seriously.”

He said that it was necessary that documents are brought under oath. “This is not a politically motivated matter,” he said.

Rohatgi interfered, saying: “It’s not written anywhere that in every writ petition, rejoinders, etc must be recorded.”

To which Dave said: “Until we have the documents on the affidavits, justice won’t be served because the judges will not be able to judge independently. The State has nothing else to show. How can Rathi reply on 23rd itself?”

At this the CJI commented: “The question is whether section 174 CrPC has been duly complied with or not. This could be a ground of suspicion.”

Dave said: “The state failed in providing proper security to Judge Loya, did not even provide proper medical services, also, post death, the real cause of death was not figured out by the state.”

March 5

Judge Loya death case: Do not dismiss article in magazine, Dushyant Dave tells Supreme Court bench

The Supreme Court bench of Chief Justice Dipak Misra and Justices A M Khanwilkar, D Y Chandrachud on Monday (March 5) 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 continued his defence. He said the collegium judges of the high court went to the press and said that Judge Loya died of a heart attack. “Who has the courage to go against the serving judges’ statements? Who asked them to go to the media and disclose the reasons of the death? This is very surprising. Filing of affidavits will ensure accountability,” Dave said.

He said that 27 interviews were conducted and all of them said that Justice Loya died of cardiac arrest. “If a judge has died under suspicious circumstances while handling a case involving such high profile people, the court must interfere and order an unbiased independent investigation.”

He submitted the report covered by Carvan magazine on Judge Loya’s death. He read out the report to the court.

He said: The CBI went before the Bombay High Court which was while listening to a related matter and asked for an adjournment for no reason and on a later date the bench is changed. What is even happening?” asked Dave.

He said: “Two things happened in last two weeks: One, a high court judge who is hearing the matter was changed by the change in roster and the CBI asking for adjournment without any reason and the next day the bench changes.”

When senior advocate Harish Salve interjected and said that he was raising fingers and abusing sitting judges, Dave asked: “It is alright if judges are giving interviews and giving clean chits?”

Additional Solicitor General Tushar Mehta also intervened and said that Dave “cannot be allowed to abuse sitting judges.”

To this Dave said that Mehta had “no right to stand in the court, because he has been counsel of Amit Shah since the last 15 years and Salve had also defended Amit Shah. This shows how the state has connived.”

He added: “If a sitting judge has suffered a heart attack in a VIP guest house, there were surety cars are available there. It is not acceptable that for any emergency, they waited for a car to come. Also the three judges took him to Dande Hospital and not to any government hospital nearby. Why could the judges not says ‘ok fine, he died of a heart attack, but an independent inquiry be instituted?”

Justice Chandrachud remarked: “We are not wishing away any possibility, but we will not make any bad faith assumptions against district court judges or high court judges.”

Dave said: “That’s what they actually want, get it done with.”

At this the CJI clarified that what is being submitted is “either dismiss the petition or order an investigation.”

At this Justice Chandrachud told Dave: “Someone who has practised at Gujarat High Court should not raise the question as to why was the roaster changed in 6-8 weeks.”

After that the senior counsel read out three judgments related to the Shorabuddin fake encounter case. “This judgment is related to the Sohrabuddin case, delivered by three judges of this court,” he said. Dave referred paragraphs 62, 64, 66 and 80 of the judgment. “Gujarat police themselves admit it was a fake encounter,” he said. “Initially the police made out a case that Shorabuddin was well-known dreaded terrorist and the he was shot by the police in the encounter. The police reported an FIR. This court asked for the investigation which started 6 months after that. Here in the case police admits that it was a fake encounter.”

He submitted the NHRC complaint that directives were not followed in such a serious case. “Even NHRC directives were not followed, Dave said. “There’s no finger pointing. But there are a lot of anomalies. Your lordship must understand the seriousness and not oversimplify the matter.”

He repeated the age-old saying, that “Justice must not only be done, but it must be seen to be done.”

Dave said: “Thirty witnesses have become hostile, around a dozen are discharged. Here we are talking about right to life, independence of judiciary etc.”

He also brought in administrative anomalies. “When it was clearly directed that the case be adjudicated by only one officer, how come it was changed?”

He submitted that live recording of father and sister which the journalist had recorded for eight months in which they have made serious allegations against the Chief Justice of the high court. “Now they deny those recordings,” he said.

Said Dave: “Even if there’s no suspicion, there’s nothing wrong in holding a independent investigation. We have nothing to lose. We are talking about the whole state machinery being utilised.”

Dace then read out the letter written by Judge Loya’s son to the court, asking for the filing of an FIR on the day of the cremation. “The journalist has not made an over

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