The hearing in the string of writ petitions seeking an independent probe into the death of CBI special judge B. H. Loya resumed on Monday, with Senior Counsel Dushyant Dave submitting before the Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar a compilation of cases “where the apex court has rightly and proactively intervened from time to time”.

“There is an order of February 23 in a matter concerning Shashi Tharoor (seeking the response of the Delhi Police on the Sunanda Pushkar death probe)...there is also the Kerala case where this court ordered a NIA investigation...I expect the same in the present matter...”, he advanced.

“Facts must come on record so that allegations can be reverted to...if there are no affidavits, no one can be held accountable...”, he continued, quoting former Supreme Court judgements.

“On November 27, 2017, two sitting judges of the Bombay High Court, Justices Bhushan Gawai and Sunil Shukre gave an interview to the Indian Express, stating that there was nothing unnatural in judge Loya’s death. The discreet inquiry report that was submitted a day later as well as the statements of the four district judges reiterate what was said by the two High Court judges. Could the members of the subordinate judiciary have contradicted the High Court judges?”, he asked.

Further, he drew the attention of the bench to the connected happenings in the last two weeks pertaining to a single judge of the Bombay High Court hearing the appeal against the discharge of the other accused in the Sohrabuddin murder and the CBI seeking adjournment for no reason in context of why an appeal should not be preferred against the discharge of BJP president Amit Shah.

“In the past also, mysterious circumstances have surrounded judges who have stood in the path of the respondents, like Justice Patel in respect of the Ishrat Jahan encounter, while those who have acted in accordance with them have been rewarded”, he remarked.

At this point, a war of words broke out between Mr. Dave and the counsel for the respondents.

ASG Tushar Mehta- “As an officer of the court, I must object to such remarks about sitting judges”.

Mr. Dave- “Not as an officer of the court, but as Amit Shah’s lawyer of past 15 years who is now assisting Mr. Mukul Rohatgi and Mr. Harish Salve on behalf of the state of Maharashtra”.

Mr. Dave- “How did two sitting High Court judges give an interview to Indian Express one day before the inquiry report was submitted? Who had asked them?”

Mr. Salve- “Your lordships, please do not allow this. The proceedings are getting broadsided”

Mr. Dave- “Please do not allow Mr. Salve to appear in this matter”

Moving on to discuss the report of the aforesaid interview, Mr. Dave advanced, “What the two High Court judges said has been repeated by the four district judges in their statements...Justice Gawai stated that he received a call from the Registrar General of the High Court and thereupon, rushed to Meditrina Hospital with Justice Shukre... the Ravi Bhawan is a VIP guesthouse...there must have been the car of some secretary or minister parked outside...there must also have been the police...so why was judge Barde have to come to take judge Loya to the hospital when it must have taken him at least 10-15 minutes to arrive...the Registrar General was staying at the same guesthouse. Why he was not called instead of judge Barde?”

“We should be careful of the allegations we make. The interview was published in the Indian Express on November 27, 2017, whereas the statements of the four district judges including judge Modak and judge Kulkarni were procured prior to the said interview. Judge Barde’s statement is dated November 24, 2017”, intervened Justice Chandrachud.

“Your Lordships are oversimplifying the matter...probably the two High Court judges had earlier spoken with the district judges...also, did the High Court judges seek permission of the concerned Chief Justice or the Chief Justice of India before going to the press?”, responded Mr. Dave.

“There cannot be such a bad faith assumption about our High Court or district court judges”, said Justice Chandrachud.

“So why are the judges not saying that even if it was a natural death caused by heart attack, an independent investigation should be conducted? Surely the two high court judges, the four district judges, the state government, the state intelligence machinery as well as their counsels have something to hide”, responded Mr. Dave.

“Please do not speak about the counsels. We are only arguing which is our duty...the idea behind these PILs is not to save the judiciary but to target one man...so many sessions of hearing have gone by... the PILs should either be dismissed or there should be some follow up”, said Mr. Rohatgi

In response, when Mr. Dave remarked that he has not seen a case where the entire judicial services have thrown their weight behind one man, Justice Khanwilkar asked him not to repeat such contentions.

When Mr Dave mentioned about the change of roster in the Bombay High Court, Justice Chandrachud proceeded to explain, “the length of roster in different High Courts varies...like in Bombay, it is 8 weeks...As the Chief Justice of the Allahabad High Court, I had implemented that no part heard matters shall be affected by a change of roster...there are instances where a judge hearing bail applications for 3-4 months requests the Chief Justice to assign him other matter...no one can question that...Please do not level such allegations”.

“Then there are perhaps too many coincidences happening (so far as the respondents are concerned)”, remarked Mr. Dave.

Referring to the judgment in Rubabbuddin Sheik v. State of Gujarat [(2010) 2 SCC 200] wherein the apex court had directed a CBI investigation in the Sohrabuddin fake encounter case, he quoted- “...It appears from the charge sheet itself that it does not reveal the identity of police personnel of Andhra Pradesh even when it states that Sohrabbuddin and two others were picked up by Gujarat Police Personnel, accompanied by seven personnel of Hyderabad Police...The investigating agency of the State of Gujarat has made a false excuse for not conducting the NARCO Analysis of the accused...It also appears from the charge sheet as well as from the eight Action Taken Reports that the motive, which is very important in the investigation reports was not properly investigated into as to the reasons of their killing...No justification can be found for the investigating officer Ms. Johri walking out the investigation with respect to Tulsiram Prajapati's death without even informing this Court...in order to make sure that justice is not only done, but also is seen to be done and considering the involvement of the State police authorities and particularly the high officials of the State of Gujarat, we are compelled even at this stage to direct the CBI Authorities to investigate into the matter”.

“Even before Ms. Johri [Geetha Johri, Inspector General, Police (Crime)] could interrogate Tulsiram Prajapati (a prime witness in the Sohrabuddin murder case), he was done away with. It was an extraordinary event!”, remarked Mr. Dave.

Thereupon, he relied on the judgment in Narmada Bai v. State of Gujarat [(2011) 5 SCC 79] wherein it was observed, “it is not in dispute that it is the age-old maxim that justice must not only be done but must be seen to be done. The fact that in the case of murder of an associate of Tulsiram Prajapati, Senior police officials and a senior politician were accused which may shake the confidence of public in investigation conducted by the State Police. If the majesty of rule of law is to be upheld and if it is to be ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to the CBI”.

Then the discussion veered to filing of a second FIR relating to the same incident and cause of action, with the Chief Justice asking Mr. Dave to read portions of the judgment in Surender Kaushik v. State of UP [(2013) 5 SCC 148].

Thereafter, Mr. Dave cited the judgment in CBI v. Amit Shah [(2012) 10 SCC 545], wherein the Supreme Court had transferred the Sohrabuddin murder case trial outside of the state of Gujarat to Maharashtra and directed that “The Administrative Committee (of the Bombay High Court) would assign the case to a court where the trial may be concluded judiciously, in accordance with law, and without any delay. The Administrative Committee would also ensure that the trial should be conducted from beginning to end by the same officer”.

“Should the Administrative Committee have not moved the Supreme Court before transferring judge Utpat? If the Executive had taken such an action, it would have been held in contempt. Under Article 141 and 144 of the Constitution, the High Court is bound by the orders of the apex court. The Committee’s decision of transfer should be produced before the bench even if we are not shown the same”, submitted Mr. Dave.

“If there is even the slightest suspicion, we will order an investigation”, assured the Chief Justice.

“Even if you are not satisfied, please order an investigation. There are video recordings of judge Loya’s father and sister of over 8 months, and now self-serving statements have been procured that they do not seek an inquiry? They have alleged that the then Chief Justice of the Bombay High Court offered bribe to judge Loya...Let us say he died of a heart attack, but it could have been an induced heart attack...he was under pressure to give discharge (to Amit Shah)”, replied Mr. Dave.

He proceeded to discuss the letter written in his own hand by judge Loya’s son, Anuj Loya, in February, 2015 after the then Chief Justice of the Bombay High Court Mohit Shah’s visit- “Today Justice Mohit Shah visited almost two and a half months after dad’s death...I could not see the guilt on his face...I told him everything connected with my father...I requested him to set up an inquiry into his death...When I asked him questions, he said my facts were incorrect...these politicians could harm anyone in my family...if anything were to happen to my mother, my grandfather or anyone else in my family or even myself, Chief Justice Mohit Shah shall be responsible”

Further, Mr. Dave read out excerpts from the transcripts of interviews of judge Loya’s father and sisters conducted by journalist Niranjan Takle.

“These interviews are a result of several meeting between November, 2016 and November, 2017, unlike the discreet inquiry report that was produced in 5 days”, submitted Mr. Dave.

Quoting from the interview of Anuradha Biyani, one of judge Loya’s sisters, he read- “My brother was called late in the night to deliver the judgment (of discharge) by December 30, 2014...he was offered a bribe of Rs. 100 crores...”

Continuing to read the interview of Ms. Biyani, a doctor herself, he quoted- “there were blood stains on the neck of his dead body...his spectacles were askew...the buckle on the belt was on the wrong side...his jaw was twisted...it could not have happened while giving oxygen as we were told...even his mobile phone was received 3-4 days later and everything had been deleted from it”.

Moving on to the interview of the other sister, Ms. Sarita Mandhani, he quoted- “my brother was under a lot of tension...I was at my sister’s place when we received a call from judge Barde at 5 AM on December 1, 2014...he asked if we could dare to listen to what he had to tell...”

“Judge Loya had died at 5 AM. The story about Dande and Meditrina Hospitals is an afterthought”, advanced Mr. Dave.

“When one’s friend or colleague has a heart attack, it is the natural instinct to take them to the best hospital. Why was judge Loya not taken to the Government Medical College, Nagpur or the Lata Mangeshkar Hospital which are both within 4-5 km radius of Ravi Bhawan? Why was he taken to the Dande Hospital which is on the first floor and where the ECG was allegedly not working?”, inquired Mr. Dave rhetorically.

“Why will the family lie about Justice Shah? And if they are, then any investigation that this court might order would exonerate him”, he continued.

“Why would the acting Chief Justice of the Bombay High Court Manjula Chellur call judge Loya’s son in her chamber and then issue a press statement that he does not want an investigation?”, remarked Mr. Dave.

“It is all orchestrated...it is a blot on democracy and on the judiciary”, he stated.

“The self-serving letters of judge Loya’s father and sister have been procured under coercion. I daresay that Your Lordships meet them in chambers without the presence of counsels”, he added at a later stage.

Handing over the pen-drives containing the aforesaid video recordings, he prayed before the bench, “I request Your Lordships to please have a look at these before the next hearing. The natural demeanour of the deceased’s family members will be evident as if in a trial”.

In context of the credibility of newspaper reports in PILs, Mr. Dave cited the judgment in Supreme Court Women Lawyers’ Association v. UOI [(2016) 3 SCC 680].

“Vishaka was a classic judgment where the court suggested guidelines for prevention of sexual harassment at the workplace and then a law came into place”, he added.

“When we direct investigation, the language of the judgment has to be clear- it can either be an independent investigation, or a further investigation because new things may have cropped up...mere allegation of self-serving statements is not enough”, opined the Chief Justice.

Finally, Advocate Prashant Bhushan, having filed an intervention application on behalf of CPIL, drew the attention of the bench to additional evidence retrieved under RTI queries-

“Samples of judge Loya’s heart (muscle tissue and arteries) were sent for histopathology examination. The report says that everything was normal, while it is well known that in the event of a heart attack, one part of the muscles die. Further, it is apparent from the ECG report that it could not be of a person who has had a heart attack half an hour back”.

The Bench has adjourned the case to March 8

“Mr.Dushyant Dave, learned senior counsel appearing on behalf of the petitioner in T.C.(Crl.)No.1/2018 continued his arguments and would submit that he would take another one and a half hour to conclude his arguments. Mr.Prashant Bhushan, learned counsel appearing on behalf of the intervenor would submit that he would conclude his arguments within twenty minutes and, in any case, shall not exceed half an hour”.

Will be continued on Friday

In the order the Court said;

“Thereafter, the matter shall be taken up on 09.03.2018 at 2.00 P.M., on which date Ms.Indira Jaising, learned senior counsel appearing on behalf of the applicant(s) in I.A.Nos.14870-14871/2018 shall make her submissions, in rejoinder, and would conclude her arguments within thirty minutes. Mr.V.Giri, learned senior counsel for the petitioner in W.P.(C)No.19/2018 shall also conclude his arguments, in rejoinder, within twenty minutes. Mr.Pallav Shisodia, learned senior counsel for the petitioner in W.P.(C)No.20 of 2018 also requires ten minutes to address the Court in the matter. He is permitted to do so. Mr.P.V.Surendranath, learned senior counsel for the intervenor in I.A.No.14930/2018 would submit that he would conclude his arguments within five minutes. Mr.Mukul Rohatgi, learned senior counsel appearing for the State of Maharashtra shall conclude his arguments within forty minutes”.