New Delhi, April 19, (Indian Express): The Indian Supreme Court on Thursday dismissed petitions seeking an independent probe into the death of special CBI judge Brijmohan Harikishan Loya saying that the petitioners have tried to scandalize the judiciary.
A three-judge bench, headed by Chief Justice of India Dipak Misra and comprising Justices A M Khanwilkar and D Y Chandrachud, pronounced its verdict after hearing a clutch of petitions.
Records show that Loya died of a heart attack in Nagpur, Maharashtra, on December 1, 2014. The petitioners, however, had moved the top court alleging he died under “mysterious” circumstances. At the time of his death in 2014, he was hearing the Sohrabuddin Sheikh “fake encounter” case, in which BJP president Amit Shah was named an accused. Shah was later acquitted in the case.
There were heated exchanges between the counsels for the petitioners and the state of Maharashtra during the hearing. While the petitioners raised questions on the circumstances surrounding Loya’s death, the state had called the claims motivated.
Looking At It Seriously
In February 19, 2018, the Supreme Court said that it is looking into the plea seeking an independent probe into the death of CBI special judge B H Loya with the “highest amount of seriousness”, the Supreme Court on Monday said it will “factually” see whether the Maharashtra government complied with rules of the Code of Criminal Procedure (CrPC) that deals with inquest proceedings to determine the cause of death. The observations were made by Chief Justice of India Dipak Misra after senior advocate Dushyant Dave, appearing for petitioner Bombay Lawyers Association, asked why the court has not issued notices to Maharashtra government to file affidavits related to Loya’s death in 2014.
CJI Misra said, “Affidavits do not improve cases. We have to factually see if Section 174 CrPC was complied with or not (while conducting inquest proceedings)…. And do not struggle on locus and bona fide. We are not questioning that…. On the very first day, my brother judges have said that it was a matter of serious concern. If there is some kind of suspicion, we will see if investigation is required.” The state of Maharashtra concluded its argument on Monday, relying heavily on the discreet inquiry by state intelligence, where it recorded the statement of four lower court judges who had accompanied Loya to the hospital before his death. Calling the inquiry report “concocted document”, the petitioner argued that the apex court should issue notices to the state government to file affidavits in the matter.
“…Your lordship should categorically order that every statement (made by Maharashtra) should be on record in form of an affidavit…. Why are the lordships reluctant to issue notice…it is unsatisfactory…. You must ask the state of Maharashtra to file an affidavit…. why are they (state) afraid to file an affidavit,” Dave argued.
CJI Misra then told the state of Maharashtra’s counsel: “We don’t want to look into any document that you have not provided to Dave (petitioners)…. When you show the documents to us, you have to show the documents to the petitioners — unless you claim privilege.” Interjecting, Justice A M Khanwilkar asked the petitioner, “How can (a) state file an affidavit on behalf of judges? State can only record their statement…. They (judiciary) cannot be subordinate to the government,” he noted.
Senior advocate Mukul Rohatgi, representing Maharashtra, said, “It is wrong to say the state has to file an affidavit…(the) state can produce the intelligence report on record. I can show the official documents to petitioners. We have nothing to hide.” Dave also told the court that the Bar Council of India (BCI) has referred a complaint filed by an advocate demanding immediate disciplinary action against him for making statements in the Loya case. He told the bench: “BCI has issued notice that my conduct prima facie appears to be unprofessional. What is the environment that we are working under? What is happening is very serious…. This is not a politically motivated matter. Attributions of motive is unfair.
“It is a serious matter where a serving judge has died on duty. There is nothing personal. Two judges from this side and two judges from the other side (of CJI’s courtroom) have also raised serious concerns in the Loya case,” Dave argued. Rohatgi argued, “The motive of resurfacing of news related to death of Loya is doubtful. The attack is that he was trying a particular case. But why did the report appear in November (2017)? The report appears only 3-4 months after a person moved the Supreme Court challenging discharge of one person named in the case being heard by Loya. And this appeal was dismissed in SC.” To this, CJI Misra said: “We are not taking note of BCI notice…. They are not before us…we are hearing the matter with greatest concern…and we are going through every detail argued by the bar.”
Justice D Y Chandarchud said, “You are bringing facts to our notice…this court has an obligation to seriously look into this issue…. We are concerned…things are being said outside…but you (Dave) rest assured that we are looking at it with the highest amount of seriousness…no one can stop you from arguing in the case. We will protect you.” During the hearing today, Rohatgi referred to inquest proceedings conducted by the Maharashtra government official into Loya’s death and argued that there was “no mark of any injury or assault….Skull was intact. Brain congested…abdomen and spine intact…and that reason of death may be heart attack”.
He said, “….also the advance report conducted the department of forensic sciences by government medical college hospital, Nagpur, shows that Loya had arterial insufficiency…. There is evidence calcification…and the artery was completely blocked…. the inquest started at 10 am and was completed by 10:30 am…. The allegation that 174 CrPC was not followed is completely baseless.”
Rohatgi also told the court that Loya’s name had mistakenly appeared as “Brij Mohan” instead of “Brij Gopal” in medical records due to entry made by judge Shrikanth Kulkarni while admitting the CBI court judge at Nagpur’s Meditrina Hospital. “The original copy of admission form was filled by Kulkarni as Brij Mohan. Hence the error crept in. It is not much of a consequence…I am showing how it happened,” Rohatgi said. During the hearing, Justice Chandrachud asked Rohatgi about judge Rupesh Rathi’s claims that ECG was not working at the hospital. Rohatgi replied, “Some nodes might not have been fixed…. He is a layman and it (was) his personal impression. Judge Vijaykumar Barde has clearly mentioned that ECG was taken…. One critical fact that is on record is the ECG machine was there at Dande Hospital.”
(The featured image at the top is that of the Late judge B.H. Loya)