The Supreme Court on Friday heard the arguments on a batch of petitions seeking an independent investigation into the death of Maharashtra judge Brijgopal Harkishan Loya. A three-judge bench led by Chief Justice of India Dipak Misra had agreed to hear the petitions after high courtroom drama on January 22.
Loya died in December 2014. At the time, he was hearing the Sohrabuddin Sheikh fake encounter case, in which Bharatiya Janata Party president Amit Shah was among the accused. Shah was acquitted a few weeks later by the judge who succeeded Loya.
As the proceedings began on Friday, senior lawyer Dushyant Dave told the bench that the matter was too serious to be dismissed based on “self-serving and contradictory” records produced by the Maharashtra government and the statements of four judges who claim to have been with Loya when he died on December 1, 2014. “By giving their statements to the state intelligence department, the four judges in my view have potentially damaged the institution,” Dave said.
He was appearing for the Bombay Lawyers’ Association, whose petition for a commission of enquiry headed by a retired Supreme Court judge to look into Loya’s death is one of two such petitions filed before the Bombay High Court – the other was filed by an activist named Suraj Lolage – that the apex court has transferred to itself.
Dave said except their own statements, there was no evidence that the four judges – SM Modak, VC Barde, Shrikant Kulkarni and Roopesh Rathi – were with Loya in hospital. No police record mentions their names.
Moreover, the entry register at the government guest house Loya where stayed in Nagpur does not have his name even though it meticulously details the names of everyone who has stayed there over the years. There are also no pictures available showing Loya at the wedding which he had purportedly travelled to Nagpur for.
If Loya did indeed die of unnatural causes, Dave argued, it must be seen as “an onslaught on the judiciary”.
He then raised a technical point: since the matter has been brought through a writ petition, all statements and arguments should be placed on record in the form of an affidavit so that they could be countered. He pointed out that Maharashtra was yet to provide several documents related to the matter.
The lawyer also questioned why nobody had informed Loya’s family when he complained of chest pain. While Loya’s wife has said in her statement that she was informed over the phone by Modak, the judicial officer himself has said he does not know who informed Loya’s relatives. “Even the Chief Justice of the Bombay High Court was there. Should they not have helped the family reach Nagpur immediately?” Dave asked. He said he personally knew of instances when chief justices had gone out of their way to help the families of judicial officers in similar circumstances.
Justice DY Chandrachud intervened at this point, saying one should be careful judging such reactions in hindsight as one person’s response could differ from another’s.
Dave then traced the developments in the Sohrabuddin fake encounter case. He said the Supreme Court, when it transferred the case to Maharashtra from Gujarat, had expressly directed that a single judge hear it from start to finish. Yet, the first judge assigned to hear the matter, and who was disinclined to exempt Amit Shah from appearing before the court, was transferred on June 25, 2014, a day before he was to deliver an order. “The marching order asking him to proceed to Pune was given on the same day,” Dave said.
Then Loya took over the case and he died on December 1, 2014. The third judge discharged Amit Shah within days. The Central Bureau of Investigation, which had brought the case, did not appeal against Shah’s discharge even though it appealed against the discharge of others who had offered to turn approvers during the trial.
Unanswered questions
Dave said there were contesting claims about an ECG done on Loya at Dande Hospital, where he had been first taken after complaining of chest pain. The Maharashtra government has not provided any records of the ECG, however. Pointing to a bill generated at Meditrina Hospital, where Loya had been taken from Dande Hospital and given emergency treatment, Dave said it listed charges for “neurosurgey and diet consultation”. Further, the initial description of Loya’s body by the doctor who performed the autopsy and the final report made contrasting claims on the extent of rigor mortis.
Dave said the judge is said to have suffered a heart attack at 4 am. Yet, curiously, he was wearing a full shirt and jeans at that time.
He also pointed out that none of the four judges who have provided their statements to the state intelligence department were at Loya’s funeral.
Dave argued that Loya’s sister and father are on record raising questions about the judge’s death. They have claimed that Loya had been offered a bribe by former Bombay High Court Chief Justice of Mohit Shah to judge the case in favour of the accused. Loya’s son Anuj wrote a letter after his father’s death seeking an investigation.
Appearing for Maharashtra, senior lawyer Mukul Rohatgi took exception to Dave expanding the scope of the petitions and questioning the decisions made by the Bombay High Court’s administrative committee in the Sohrabuddin case. Referring to a document, he said Loya was indeed provided security in Nagpur unlike what the petitioners have claimed. Rohatgi reiterated that the four judges have given their statements on their own, clearly explaining what happened on the day of Loya’s death.
Indira Jaising, appearing for a group of civil servants impleading in the matter, asked for Maharashtra to produce the original copies of all records, claiming there was enough evidence of fudging. In one of the documents, for example, dates have been overwritten. The state must also produce the ECG done on Loya at Dande Hospital, she said.
Rohatgi assured that these documents will be produced.
