New Delhi: The Supreme Court’s three-judge bench comprising Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud held a two-hour long hearing on Friday afternoon of the petitions seeking an independent probe into the death of special CBI judge B.H. Loya.

Senior counsel for Bombay Lawyers’ Association (BLA), Dushyant Dave, who argued for nearly one and a half hours, brought to light several inconsistencies in the official account of Loya’s death. The state of Maharashtra was represented by Mukul Rohatgi.

Unlike the last hearing, which was marked by acrimonious exchanges between Dave and the counsel for the state of Maharashtra, Rohatgi and Harish Salve, Friday’s proceedings were orderly, except for brief interventions by Rohatgi. On Friday, Dave had made an issue of Salve appearing in the matter, arguing that the latter had earlier represented BJP president Amit Shah, who, he alleged, is a beneficiary in this case.

The gravamen of Dave was that the plea for an independent probe is too serious to be dismissed by the bench at the threshold. His plea was that the respondents in the case be directed by the bench to file appropriate affidavits to bring their case before the court “on oath”. The inconsistencies in the official version, seen in the context of Shah’s discharge in the Sohrabuddin matter after Loya’s death, only strengthens the suspicion that his death was not natural, Dave alluded.

Dave pointed out that in proceedings under Section 340 CrPC, pleadings have to be completed, and whatever judicial officers may say must be in the form of affidavits.

After all, proceedings before the Supreme Court under Article 32 of the constitution are under extraordinary original jurisdiction, and it is well settled that unless the allegations contained in the writ petition are denied specifically, they are deemed to be admitted, the BLA had pointed out in its petition.

Accusing the “discreet enquiry” and subsequent report prepared by the commissioner of state intelligence, (CSI) as a “bundle of contradictions”, Dave repeatedly questioned why Loya’s wife was not informed about her husband’s death immediately. When Rohatgi claimed that Loya’s colleague, Shriram Modak had informed her at 5 am on December 1, 2014 from Nagpur, as per her own statement, Dave replied that it was obtained under pressure, as Modak has contradicted it by saying he did not know who had called her.

Dave also questioned the executive’s decision to suo motu enquire into Caravan magazine’s allegations that Loya’s death might not be natural. “Every day, a large numbers of reports appear in newspapers and magazines about the conduct and misconduct on the part of executive and its officers. It is rare, if not impossible, to find a state government being thrown into action forthwith to enquire into those allegations”, the BLA has claimed in its petition.

Recalling the sequence, the BLA has pointed out in its petition that on November 23, 2017, the state government directed the office of the commissioner of state intelligence to conduct discreet verification. On the same day, the commissioner addressed a letter to the chief justice of the Bombay high court seeking permission to speak to the four judicial officers who, he claimed, had accompanied Judge Loya to the hospital on December 1, 2014.

On the very day, November 23, 2017, the high court assented to the this request. The BLA has found this sequence of events, all happening on the same day, curious. It also said the fact that the CSI was able to discover – within a few hours of receiving the probe request from the state government – that four judicial officers had accompanied Loya to the hospital on the fateful day itself might appear suspicious.

The speed with which these three orders were made on the same day, raises serious doubts about the exercise, the BLA noted.

The CSI, within five days of this “discreet enquiry”, submitted its report on November 28, 2017. The report concluded that Loya suffered a heart attack in the presence of his colleagues belonging to the judicial fraternity, who made all possible efforts to provide medical assistance to save him.

The Association has revealed that the Death Investigation Report prepared under Section 174 of the CrPC by PSI R.K. Mundhe of Sitabardi Police Station, Nagpur City is dated December 1, 2014, which records that the body of Loya was recognised by Dr Prashant Bajrang Rati, and it does not speak a word about the presence of anyone else, especially the four judicial officers, who now claim to have been present at that time. Rati’s statement was recorded at 8:30 am (Loya’s death was recorded at 6:15 am).

The BLA petition also reveals that Rati, in his statement given to the CSI on November 22, 2017, also does not refer to the presence of any other person including the judicial officers, but suggests that on the contrary, since no one was available, he was requested by his uncle to “complete all the procedure and send the dead body to the native place in Latur. Hence, I completed the procedure and had taken the dead body in my custody”. Rati has also stated that the ambulance carrying Loya’s body was followed by two persons from the law department, and one policeman.

When Dave explained his suspicions, based on Rati’s statement, Rohatgi intervened and asked whether the court should disbelieve the statements of the four judicial officers. “Let them say so on affidavits; we are ready to cross-examine them”, Dave replied.

The BLA has also revealed that the case papers of the Meditrina Institute of Medical Sciences, Nagpur, to which Loya was taken after he suffered a heart attack, record that the patient “was brought with no evidence of life to our hospital”. This document shows that Loya was admitted by Shrikant D Kulkarni , who disclosed his relationship to Loya as “friend”. The document shows the cause of Loya’s death as “undetermined (unknown)”.

The BLA said the doctor’s progress notes concerning Loya are more telling and show, “As per history given by accompanying person – chest pain-yday night”. The set of documents assembled by the state government include the receipt and final patient bill summary of Meditrina, which make even curious reading, says the Association’s petition:

“For a patient who was allegedly brought dead, the final bill is, inter-alia, for “Non Invasive Lab”, “Neurosurgery”, “diet consultation”, “non-medical expenses” amongst others and raised a bill of Rs.5540 and after giving discount of Rs.1250, a net bill of Rs.4290. This is absolutely shocking and belies the claim of Meditrina Hospital fully.”

These documents are clearly self serving and have been procured to mislead the investigation, alleges the petition.

During Friday’s hearing, Dave also highlighted the fact that the records of the hospital initially had Loya’s name as Brij Mohan Harikishan Loya. It was only later, at the instance of the Sadar Police Station, that it was corrected as Brijgopal Harkishan Loya. Did the judges, who claim to have accompanied Loya, not give his correct name on the fateful day, the petition asks.

Dave then raised the issue of the register of Ravi Bhawan, Nagpur, where the authorities claim Loya had stayed along with his brother judges. The register does not show any entry of Loya having stayed there. This document, obtained under RTI, has been annexed to the BLA’s petition. Both the petition and Dave, during his arguments on Friday, questioned the claim that Loya had stayed with his colleagues, Judge Kulkarni and Judge Modak in the same suite. If that was so, why did these judges fail to inform Loya’s wife about her husband falling ill in the early morning of December 1, 2014, Dave asked.

Dave challenged the respondents to show the photo of Loya at the wedding of his colleague’s daughter – the ostensible purpose for his Nagpur visit. Dave also questioned why Loya, as soon as he complained of chest pain, was not taken to the well-equipped Lata Mangeshkar hospital at Nagpur. When Rohatgi asked whether Dave suspected that the judges were not telling the truth about Loya’s death, Dave said they did not give statements to the police, but to the press, without an affidavit. Why is the state shy in filing affidavits, Dave asked.

“My lords have vast experience. It is the tradition that the chief justice of a high court goes out of the way to help subordinate judicial officers and their families, if they are in distress. This belies the hon’ble judges’ statement that Loya suffered a natural death”, Dave told the bench.

The BLA petition also reveals that the security of Loya was withdrawn on November 24, 2014, a week before his death, and therefore, he did not have any personal security at the time of his death.

The petition, therefore, alleges that the CSI’s report has been prepared to mislead the court. The author of the report should be called upon to file an affidavit in support of the report, so that appropriate proceedings can be instituted against him under Section 340 of CrPC read with Section 195 (1)(b) of the code, the petition prays.

The petition makes the additional prayer to relegate the case to the Bombay high court, as the mandate of Article 226 is much wider in scope than Article 32 of the constitution, which enables the Supreme Court to hear a case. In the alternative, it seeks the Supreme Court’s directions to constitute an independent enquiry by a Special Investigation Team comprising of independent persons into the death of Loya, and take further actions, after the receipt of SIT’s report, to instil confidence in the minds of people at large.

Dave also referred to inconsistencies in the post-mortem report on Loya, and requested the bench to confer with Loya’s wife, son, brother and father in camera, and if they do not want any probe, it need not proceed further. Making an emotional plea, Dave asked the bench: “Who will protect our judges if we don’t?”

Senior counsel, Indira Jaising, intervened to say that there are many instances of overwriting on the copies of the documents submitted, and therefore, the bench must ask for the originals. Justice Chandrachud agreed with her that there is overwriting. The bench was also told that page 25 of the post-mortem report was not submitted to the bench, creating further suspicions.

Senior advocate, V. Giri, appearing for Tehseen Poonawalla, began his arguments, when the bench rose for the day.

Further arguments will continue on February 5 at 2 pm.