Maharashtra Home Minister Anil Deshmukh said last week that if new evidence is presented, the Shiv Sena-NCP-Congress government could consider reinvestigating the mysterious death of Judge B.H. Loya. The special CBI court judge was presiding over the Sohrabuddin Sheikh fake encounter case in which present Union Home Minister Amit Shah was an accused.
It might help an audacious Shiv Sena score a few points against Prime Minister Narendra Modi and Amit Shah. But any hurried move by the Uddhav Thackeray government to revive the controversial Judge Loya case can boomerang – politically and legally.
But minister Deshmukh isn’t the first one to hint at reopening Judge Loya case. Before him, NCP chief Sharad Pawar had also said the case could be re-investigated if there was a “fresh complaint and it has substantial evidence”.
Many, including the family members of Judge Loya, have suspected foul play in his death, reportedly from a heart attack on 1 December 2014, and sought an impartial inquiry.
So, should the case be investigated thoroughly? Yes. But there are several impediments that could hinder the Maharashtra government’s consideration from turning into something transformative.
Supreme Court’s clear stand
In April 2018, a three-judge bench of the Supreme Court comprising then-Chief Justice of India Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud had dismissed several PILs seeking an independent probe into Judge Loya’s death in Nagpur, where he had gone to attend the wedding ceremony of a colleague’s daughter.
The bench had primarily ruled on the basis of the statements of four senior judicial officers, who had told the officer conducting a discreet inquiry ordered by the Maharashtra Home Department that Judge Loya had “suffered a heart attack in the presence of his colleagues belonging to the judicial fraternity”. The four officers had further said that “they had made all possible efforts to provide medical assistance to save him” and that he “died as a result of natural causes”.
In their judgment, the Supreme Court judges had said there was no reason to doubt the statements of the four witnesses.
Most importantly, while transferring the case to the Bombay High Court, the Supreme Court said that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court”, and that issues such as “circumstances relating to the death of Judge Loya which have been dealt with by this Court in the judgment delivered today stands concluded”. And in July 2018, the Supreme Court dismissed review petitions against its judgment.
Therefore, any decision to investigate the matter afresh would have to be based on material evidence that clearly points to foul play. Otherwise, it would only give an opportunity to Amit Shah and his legal team to cry wolf and do everything to stop the probe even before it gathers steam.
Death due to natural causes
In its 19 April 2018 judgment, the Supreme Court, surprisingly, ruled that “documentary material on the record indicates that the death of Judge Loya was due to natural causes”, and that “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”. It hardly matters that there were several gaping holes in the judgment. The most significant being that the SC appropriated to itself the powers of a trial court and ruled on the matter on the basis of oral evidence that would have been successfully rebutted by any good lawyer.
Even though there are serious questions that could be asked of the Supreme Court because of the manner in which it decided the case, only one thing matters in the end: it is India’s apex court, and any step that contradicts its decision would have to be based on very firm, legal footing.
Need for a fresh complaint
Even the Maharashtra Home Minister has indicated that any demand to reopen the case would require a fresh complaint with ‘new’ evidence.
In cases like these, the primary locus to file the complaint lies with the immediate family of the alleged victim. Moreover, the ‘evidence’ must be crucial enough to allow a challenge to a judgment delivered by the Supreme Court.
Fresh evidence does mandate further investigation. While reinvestigation is not legally permissible, ‘further investigation’ is. But the test for this would be quite stringent. However, since there was no formal FIR initially, any probe that happens now would be the first formal investigation.
But, any decision to register an FIR will be based on the quality of material submitted along with the complaint. If the police registers a case on the basis of old material, it would be fairly easy for Amit Shah and his legal team to challenge it as ‘amounting to overreaching the judgment of the Supreme Court’.
Opportunity for Shah and BJP to play victim
Any shoddy attempt to reopen the case will only give an opportunity to the BJP president to play the victim and accuse the Maharashtra government of doing dirty politics.
This is why the Uddhav Thackerey government must move forward in Judge Loya’s case only after due diligence and thorough legal scrutiny.
Otherwise, the move could hurt the state government and the alliance partners.
The author is a senior journalist. Views are personal.