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How Supreme Court dissected & dismissed petitions for a fresh probe into judge Loya death

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Calling it a “frontal attack on the independence of the judiciary”, the Supreme Court Thursday rejected all suspicion into the circumstances surrounding judge Loya’s death.

New Delhi: The Supreme Court Thursday declined to order a fresh probe into the death of CBI judge B.H. Loya and said petitions demanding such an investigation seemed to be an attempt to settle political scores.

Judge Loya’s death in 2014 sparked controversy after a report was published in Caravan magazine quoting Loya’s family members alleging that the judge was under “immense pressure to give a favourable verdict in the case.” Loya, was then the special judge handling the trial of Sohrabuddin Sheikh’s fake encounter, in which BJP president Amit Shah was a key accused.

While the state government had defended that the judge’s death was natural, five petitioners demanded a fresh investigation into the death of Loya. In its 114-page judgement, the bench of Chief Justice of India Dipak Mishra and justices A.M. Khanwilkar and D.Y. Chandrachud dismissed the pleas and raised questions on the credibility of the petitioners.

Excerpts from the judgement:

Four judges were responding to call of duty:

There is no basis whatsoever to make any imputation against the four officers of the state judiciary. They were present with Judge Loya at Nagpur to attend a wedding in the family of a colleague.

Each of them responded, as judges of the district judiciary, to the permission which was granted by the Chief Justice of the High Court to the Commissioner, SID to record their say. The judges have spoken about the facts of the case as they could recall, with details. We have extracted each of the four statements
fully, as they stand…. They had nothing to conceal nor an axe to grind…. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each
of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty.

Why was Loya not taken to a closer hospital:

Why, they (counsel and petitioners) have queried, was he taken to Dande hospital initially and not to a specialised cardiac care facility when it was available within a radius of 5 km of Ravi Bhavan.

“This line of argument is without merit. Judge Loya, as the statements of Judge Kulkarni and Judge SM Modak indicate, complained of chest pain at about 0400 hours on 1 December 2014. His colleagues who were with him took a decision in good faith to take him to Dande hospital which is in close proximity to Ravi bhavan. To attribute motives to his colleagues who were with him and took immediate steps to shift him to a hospital nearby is absurd, if not motivated. In hindsight, it is easy to criticise actions which are taken by human beings when faced with an emergency. It is easy for an observer sitting in an arm-chair at a distant point in time to assert that wisdom lay in an alternate course of action. That can never be the test for judging human behaviour.

At Dande hospital, the medical advise was that the condition of Judge Loya required him to be shifted to a specialised cardiac hospital. Judge Rathi contacted him on phone and it was at his (Dr Pankaj Harkut) suggestion that the judges took a decision to shift Judge Loya to Meditrina. To find fault with the judges for this course of action is unacceptable.

But there is another and more serious aspect of the line of submissions which has been
urged…It is as if the judicial officers are in the dock. We have no hesitation in rejecting that attempt. Mr Rohtagi submitted before the court that this line of argument of the petitioners and intervenors would postulate that the judicial officers are co-conspirators. In fact, it was so argued by counsel assisting Mr Giri. This is neither the case in the pleadings of the petitioners nor is there any material on the record which can even remotely suggest such an inference. We must emphatically reject such attempts on the part of the petitioners and the intervenors to malign judicial officers of the district judiciary. They acted in good faith to ensure medical treatment to their colleague. Their conduct cannot be questioned.

The ECG machine was not working:

Similarly, a considerable degree of emphasis has been placed on the statement of Judge Rathi that the nodes of the ECG machine at Dande hospital were not working.

Based on this, it has been seriously urged that in fact no ECG was done at Dande hospital. Judge Shrikant Kulkarni in his statement dated 24 November 2017 has stated that “emergency treatment” was given to Judge Loya at Dande hospital. Judge SM Modak states that after an initial check-up, the doctors at Dande hospital advised shifting the patient to another hospital. Judge Vijay Barde who was present at Dande hospital specifically stated that the medical officer on duty there examined (“checked-up”) Judge Loya “by ECG, blood pressure etc. as per their procedure”. Judge Rathi has stated that at Dande hospital, time was wasted because the nodes of the ECG machine were broken and the machine was not working. This statement of Judge Rathi must, however, be weighed with the doctor’s progress notes at Meditrina hospital. The death summary (extracted earlier) specifically adverts to the fact that the patient was taken to Dande hospital earlier where an ECG was done….As a matter of fact, it is this very ECG which forms the subject matter of the submissions which have been urged by one of the intervenors, for whom Mr Prashant Bhushan appears. Having regard to the fact that the ECG has been specifically mentioned in the progress notes of the doctor at Meditrina hospital, we find no reasonable basis to infer that no ECG was done at Dande hospital.

There was no car to transport Loya at 4 am:

It has been urged that the Caravan article states that no car was available at 4 am on 1 December 2014 at Ravi Bhavan and hence Judge Loya was transported by an auto-rickshaw to Dande hospital.

Mr Dave criticised the conduct of the judicial officers and submitted that it is inconceivable that at a government guest house, a car and driver would not have been available even in the early hours of the morning. The submission lacks merit. Judge Kulkarni has stated that Judge Loya was taken in Judge Barde’s car to Dande hospital. Judge Modak also notes that Judge Loya was shifted by car to Dande hospital and thereafter to Meditrina. This is confirmed in the statements of Judge Barde and Judge Rathi. The allegation that Judge Loya was not provided even a car to travel from Ravi Bhavan to Dande hospital and onwards to Meditrina is a red-herring.

Family did not see Loya after his death:

Another submission urged by Mr Dave is that the judicial officers did not meet the family of Judge Loya in Mumbai soon after the death.

Judge Modak in his statement observes that he and Judge Kulkarni met the relatives of Judge Loya at his Haji Ali residence after a few days. The suggestion that this is callous, is unfortunate, besides being incorrect. It must be remembered that the family of Judge Loya had proceeded to Gategaon for the funeral. Can the circumstance that Judge Kulkarni and Judge Modak met the family a few days later in Mumbai have a bearing on their sense of humanity, as Mr Dave urged? The obvious answer is in the negative.

How could Loya be wearing jeans and shirt at 4 am:

Then it was sought to be urged that if Judge Loya had suffered a heart attack around 0400 hours, he would not be wearing a trouser and shirt which the inquest report records. This is another submission which has been urged to cast doubt on the sequence of events as set out in the statements of the four judicial officers.

Now a close reading of Judge Rathi’s statement indicates that when he reached Ravi Bhavan and met Judge Modak and Judge Kulkarni, Judge Loya was attending to a call of nature. It is evident from the statement that Judge Loya, when he left Ravi Bhavan was not unconscious and was complaining of chest pain and heart burn. To urge that the depiction of the clothes worn by Judge Loya casts doubt on the sequence of events narrated by the judicial officers is hence untenable.

The accompanying officials did not say Loya’s correct name in the hospital:

Another submission is that if the four judges had accompanied judge Loya to hospital, then as colleagues they would not have indicated his name to be Brijmohan instead of Brijgopal.

This is but another attempt to cast doubt on the version of the four judicial officers without a substantive basis or foundation. Judge Loya was taken to hospital in an emergency. The normal course of human events would indicate that his four colleagues would be more concerned about getting Judge Loya attended than filling up an admission form. A mistake did occur in recording his name as Brijmohan instead of Brijgopal. In our view, this cannot be a ground to discredit the detailed factual narration made by the four judicial officers who were with him.

Why was the body not accompanied by anybody?

Similarly, a fair amount of critical comment has been devoted by counsel for the petitioners and intervenors to (i) why the family of Judge Loya was not brought to Nagpur by a flight from Mumbai after the death had occurred; and (ii) why, as alleged, in the Caravan article, the body reached Gategon for the funeral rights unaccompanied.

It is necessary to emphasise that both these submissions have no bearing on whether the death of Judge Loya was due to natural causes or otherwise, since they relate to events which took place after his death.

If the family decided that the funeral should be held at the place to which he belonged namely, Gategon near Latur, this was a decision personal to the family. Judge Loya had died. If a considered decision was taken by the members of his family to proceed to Gategon instead of travelling first to Nagpur and then traversing a distance of nearly 450 kilometres by road to the place where the funeral was to be held, such a decision has to be respected.

Moreover, the allegation that the body was sent unaccompanied to Gategaon is contrary to what has emerged on the record… Judge Kulkarni in the course of his statement made a reference to the fact that… two judicial officers from Nagpur were also sent in another car to accompany the body. Judge SM Modak in his statement dated 24 November 2017 specifically notes that Shri Sonawane, the Principal District Judge then at Nagpur, deputed two local judges to accompany the dead body.

Judge VC Barde has also stated that after the conclusion of the post-mortem at about 11 am, the dead body was sent in an ambulance to the native place of Judge Loya and two judges; Judge Rahangdale and Judge Chopda accompanied the body.

Suspicions about Chief Justice of the Bombay High Court

The petitioners have sought to rely upon the allegations against the then Chief Justice of the Bombay High Court, Shri Justice Mohit Shah made by the father and sister of Judge Loya.

Reliance has also been placed on a handwritten note dated 18 February 2015 purportedly scribed by Anuj Loya after a meeting with the Chief Justice of the Bombay High Court, who had come to the family. The video recording of an interview given to Caravan by the father and sister of Judge Loya was also handed over to the court on a pen drive.

The members of the family of Judge Loya have disassociated themselves from the statements attributed to them in the Caravan publication. The video recording, which we have seen, contains snippets of an interview. Evidently, only a part of the interview has been produced. The allegations against the Chief Justice of the Bombay High Court are hearsay.

The doctor speaks: No foul play

“On careful perusal of all documents made and relevant medical literature on the subject, it is my opinion that, 1. Late Shri Brijgopal Harikisan Loya died due to acute coronary insufficiency, which was a sudden natural death. 2. There was no evidence to suggest any inconsistencies in the history, clinical findings and autopsy report made available to me. 3. Claims of foul play and suspicions in the articles in The Caravan made are unscientific and incorrect, as explained by me in this report with relevant references.

Dr Harish M Pathak Professor & Head Forensic Medicine & Toxicology Seth GSMC & KEM Hospital, Mumbai.”

Public Interest Litigation is being misused by cases like these: Court

Yet over time, it has been realised that this jurisdiction is capable of being and has been brazenly mis-utilised by persons with a personal agenda. At one end of that spectrum are those cases where public interest petitions are motivated by a desire to seek publicity. At the other end of the spectrum are petitions which have been instituted at the behest of business or political rivals to settle scores behind the facade of a public interest litigation. The true face of the litigant behind the façade is seldom unravelled.

The present case is indeed a case in point. Repeatedly, counsel for the petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence…But as the submissions have evolved, it has become clear that the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions. Judicial review is a potent weapon to preserve the rule of law. However, here we have been confronted with a spate of scurrilous allegations. Absent any tittle of proof that they are conspirators in a murder the court must stand by the statements of the judicial officers. The judges of the district judiciary are vulnerable to wanton attacks on their independence. This court would be failing in its duty if it were not to stand by them (the four judges).

The law must go on: Court

The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt.

However, on a dispassionate view of the matter, we have chosen not to initiate proceedings by way of criminal contempt if only not to give an impression that the litigants and the lawyers appearing for them have been subjected to an unequal battle with the authority of law.

No further inquiry needed

For the above reasons, we have come to the conclusion that there is absolutely no merit in the writ petitions. There is no reason for the court to doubt the clear and consistent statements of the four judicial officers. The documentary material on the record indicates that the death of Judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry.

Read the full judgment here.

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