Mihir Desai

| @ | June 11,2018

On December 1, 2014, Judge Brijgopal Harkishan Loya died in Nagpur. On April 19, 2018, the Supreme Court delivered its regrettable verdict concluding that Judge Loya’s death was “natural” and no investigation or inquiry into it was needed. The apex court verdict raises more questions than it answers. A judge had died. There were serious questions about his death. There were gaping holes in the narrative of natural death. The family members had, from time to time, raised questions about the death. But the importance of this case could not be realised minus its super sensitive context, which threatened to affect the party ruling in the Centre, as well as in over 20 states of the country, in an unsavoury manner.

Backstory to Judge Loya case

Sohrabuddin Sheikh was killed in an alleged encounter in Gujarat on November 26, 2005. His wife, Kausar Bi, was said to have been killed after a few days. Supreme Court directly entertained a petition filed by Sohrabuddin’s brother, Rubabuddin, in 2006 and ordered a high-level police inquiry by the Gujarat State. Ultimately, the Gujarat police arrested a few officers, but the Supreme Court was not satisfied with the way the inquiry was proceeding and directed the Central Bureau of Investigation (CBI) to take over the probe. CBI arrested a few more persons, including Mr Amit Shah, who was said to be the “mastermind” behind the encounter deaths. Amit Shah finally got bail from the Supreme Court.

However, the Supreme Court expressed the view, looking at the sensitive nature of the case, that the trial should be transferred outside Gujarat and eventually, shifted it to Mumbai. It also directed a committee of senior judges — including the Chief Justice of the Bombay High Court — to appoint a Sessions Court Judge to conduct the trial, and also ordered that the trial be conducted by the same judge from the beginning to the end. Obviously, the Supreme Court would have been conscious of the likely political interference in Gujarat.

In the meanwhile, in 2006, Tulsiram Prajapati, who was the most material witness to the kidnapping of Sohrabuddin Sheikh and Kauser Bi by the police, was killed in Gujarat in an alleged encounter. He had written letters to authorities that “his life was in danger and he was likely to be encountered by the Gujarat Police”. He was physically attacked and nearly killed in the Rajasthan jail, where he was lodged. His mother, Narmada Bai, also filed a petition directly in the Supreme Court, alleging “fake encounter”. Even here, the Supreme Court was of the view that investigation should be handed over to the CBI. The Court ultimately linked both the cases and ordered the Bombay High Court to try the two together. It is obvious that the Supreme Court, and that too various judges of the Supreme Court from time to time, found the whole matter extremely “sensitive” and felt that the original investigation was being compromised.

Judge J T Utpat was initially appointed for trying the Sohrabuddin case and he started with the proceedings in Mumbai. In March 2014, Amit Shah applied for a discharge in the sessions court. The matter took some time as successive discharge applications were being filed by various accused. Besides, many statements of witnesses recorded were in Gujarati which had to be translated. In criminal trials, the presence of accused is required on each day when the matter comes up for hearing. The accused can, of course, apply for exemption. Amit Shah applied for exemption, but beyond a point the judge was not willing to grant exemption and directed Shah to remain present in Court. One day before the date on which Amit Shah was directed to remain present in Court, Judge Utpat was transferred. In his place, Judge B H Loya was brought in to try the matter. This was done by an order of the High Court Committee.

The first question which arose in the wake of the transfer of Judge Utpat and which was rubbished by the Supreme Court bench was this: Why, when the Supreme Court had itself ordered the trial to be conducted by the same judge from the beginning to the end, was the Supreme Court’s permission not taken before transferring Judge Utpat?

Once Judge Loya took charge, Amit Shah’s lawyers seemed to be in a tearing hurry to get his discharge application decided. Judge Loya, however, wanted to have a complete picture, including full translations, before deciding the matter on merits. It appears that he also had on one occasion observed critically about Amit Shah’s absence in court, despite Shah being present in Mumbai on that day. Judge Loya was trying the matter in a neutral manner as an independent judge is required to do. It was at this stage that Judge Loya travelled to Nagpur for the wedding function at a colleague’s house and died in the morning of December 1, 2014.

Subsequently, Judge M B Gosavi was appointed as the CBI court judge and Amit Shah was discharged within less than a month on December 30, 2014. The CBI, which had arrayed Amit Shah as an accused and arrested him, did not even challenge the order of discharge of Amit Shah. Rubabuddin Sheikh, Sohrabuddin’s brother who challenged the order of discharge in the Bombay High Court, shockingly and in curious circumstances withdrew the application from the High Court.

I was representing Rubabuddin Sheikh in the Bombay High Court and it was obvious to me that he was under tremendous pressure to withdraw the matter. He was present in court and was actually shivering and insisting that the matter should be withdrawn on that day itself. I requested the judge to speak to him alone in the chambers. After speaking to him in the chamber, the learned judge said that she will not permit withdrawal on that date and adjourned the matter for a month. During this month, the vakalatnama of my being an “Advocate on Record” was withdrawn. Subsequently, the matter was mentioned by another lawyer before another judge and the application was withdrawn.

And, Amit Shah was scot free.

Death of Judge Loya: Breaking the silence

Even so, Rubabuddin wrote a letter expressing his shock at Judge Loya’s death and few parliamentarians protested. But nothing came of it. The family members seem to have told some friends as to how Judge Loya was under tremendous pressure and was offered a bribe. In November, 2016, Judge Loya’s niece contacted Niranjan Takle, a journalist, and this led to an investigation by him into the circumstances surrounding Judge Loya’s death, eventually culminating in a two-part article in The Caravan magazine on November 20-21, 2017 followed by a number of related articles based on the follow-up investigation by The Caravan.

[Screenshot of The Caravan article by Niranjan Takle published on November 20, 2017]

Cases were filed in Bombay High Court as well as Supreme Court. It was the day on which the petition concerning Judge Loya’s case was mentioned before the Chief Justice of India that four senior most judges — Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur, and Kurien Joseph — took the unprecedented step of addressing a press conference, essentially directed at the functioning of the Chief Justice and allotment of cases to “benches of preference”, by him. To a pointed question whether the trigger was Judge Loya’s case Justice Ranjan Gogoi replied in the affirmative.

Anatomy of a curious verdict

In such a situation, to maintain transparency and objectivity it was desirable that the Chief Justice did not hear this case. However, it was indeed heard by a bench of Chief Justice Dipak Misra, Justice A Khanwilkar and Justice D Y Chandrachud. In its judgment, the Supreme Court essentially relied on a “discreet inquiry” conducted by the Intelligence Bureau, where statements were recorded of the four judges who accompanied Judge Loya to the hospital. This inquiry was not asked for by the Supreme Court but done at the instance of the Chief Minister of Maharashtra. No reliance could have been placed on a so-called discreet inquiry, since it was not tried and tested on cross-examination of those who gave statements, that too not on oath. However, by virtually placing total reliance on such an inquiry, the matter was concluded by the Supreme Court.

The lawyers for the petitioners demanded that a fresh and independent probe be conducted into Judge Loya’s death looking at the suspicious nature of the ECG, postmortem, statements given to the media by the sister of the deceased, contradictions in statements of the judges, the absence of proper record at the guest house where Judge Loya was supposed to have stayed. Opinions of medical experts were produced by the advocate for the intervener that looking at the post-mortem, heart attack could not have been the cause of death. Contradictory statements were made by the judges who accompanied Judge Loya to the hospital. One of the judges said that no ECG was performed at the first hospital, while another said it was, in fact, performed. The only ECG which was available was one published in The Indian Express, which showed the date of ECG as the date preceding the day Judge Loya purportedly suffered heart attack. There were serious doubts over the validity and interpretation of the post-mortem report.

What was shocking was the approach of the court towards the petitioners and their advocates. Instead of welcoming the fact that these persons were trying to bring to light a possible interference and attack on the judiciary, they were castigated for not blindly believing what the four sessions court judges had said, for collecting evidence in order to support their case and for allegedly bringing the judiciary into disrepute. They were virtually found guilty of contempt. What was wrong in saying that statements of the four judges before the intelligence bureau needed to be tested through cross examination? The statements by the Judges were not made in their judicial capacity. Outside of their judgments, the statements of judges do not have any higher evidentiary value than that of an ordinary person.

The Supreme Court refused to look at any issues apart from Judge Loya’s death. It was clear that they were looking at the death as an isolated event. However, Judge Loya’s death was suspicious on account of the context and the refusal to look at the context in itself defeated the cause. There were allegations that the then Chief Justice of Bombay High Court had offered a large bribe to Judge Loya, amounting to Rs 100 crore according to Loya’s sister, as reported in The Caravan article.

Questions, questions

If transparency and independence of the judiciary were really the touchstone, the sister would have been called by the Supreme Court and asked about the allegation. Instead, the Court brushed it aside as hearsay. Why was Judge Utpat transferred without the Supreme Court’s permission is another issue the Court should have gone into. But, this again was ignored despite being raised. Why did the CBI not challenge the discharge of Amit Shah in a case which had led to his arrest through an investigation which was supervised closely by the Supreme Court itself — should have been something which ought to have perturbed the apex court bench hearing the case.

Why did Rubabuddin, who initiated the issue in the Supreme Court in 2006, followed it up over the years in the apex and trial courts, suddenly withdraw the challenge to the discharge of Amit Shah in the High Court, while continuing with his challenges to other discharge applications — was something the Court should have been alarmed by. Why so many witnesses in the case were turning hostile on a daily basis in the trial was another issue the Supreme Court should have been disconcerted by. The Supreme Court could have done so much as to uphold the majesty of law. It had the power to go into all these issues. Even if no one had raised these issues, it should have suo motu gone into them. But alas.

Considering the controversy involved, the doubts in various narrations, the context in which the entire case had arisen, Supreme Court’s own intervention in the Sohrabuddin case in an extremely proactive manner, the large number of witnesses who had subsequently become hostile, it was necessary for the Court to order an independent probe into the matter. In such a probe the relatives who at one time had claimed that Judge Loya was offered a huge bribe, was under pressure and who had spoken about the “blood on his collar” — could have been talked to in confidence; the judges who had given statements could have been asked to clarify matters; the post-mortem report could have been independently gone into by an expert.

Instead, the court itself, based on information submitted to it by the Intelligence Bureau which was asked to carry out the probe by the government that was headed by the party to which Amit Shah belonged, concluded the matter. Even if the Supreme Court itself wanted to go into detail, it could have summoned the Caravan journalist, Niranjan Takle, and asked him about his investigation, the relatives and the four judges and conducted an independent probe. It could have asked an independent expert to go into the post-mortem report, looked at the call records of various persons involved, asked an independent person to visit the guest house and the hospitals to satisfy itself concerning the matter.

The approach of the Supreme Court in a matter concerning the independence of judiciary, in a matter which ultimately arose from a Supreme Court-monitored investigation, in a matter where four judges of the Supreme Court had expressed their concern about the functioning of the Supreme Court — leaves much to be desired. No prejudice would have been caused if the Supreme Court was seen to support a sessions court judge by ordering a probe. May be nothing out of ordinary would have come out of that probe. But at least the judiciary would have been able to hold its head high.

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