Indira Jaising to SC: The order saying I agreed to transfer of petitions from Bombay HC to SC in Judge Loya petition is incorrect

Senior advocate Indira Jaising has apprised the Supreme Court of a wrongly recorded fact in one of its recent orders, which stated that she agreed to transfer of the Petitions in Judge Loya case from the Bombay High Court to the Apex Court.

On Monday (22nd January), a bench headed by Chief Justice of India Dipak Misra, and comprising of Justice DY Chandrachud and Justice AM Khanwilkar heard the petitions seeking a an independent investigation into the death of CBI Judge BH, who was hearing the alleged fake encounter case of Sohrabuddin Sheikh at the time of his death. The petitions were filed by Maharashtra-based journalist Banduraj Sambhaji Lone and Congress leader Tehseen Poonawalla.

The bench had, in its order dated 22 January, noted,

“We have been apprised that two Public Interest Litigations have been filed in the Bombay High Court, one at the Principal Seat at Bombay High Court forming the subject matter of P.I.L. No.2 of 2018 and another at the Nagpur Bench of the Bombay High Court i.e. Writ Petition No.1130 of 2017. We think it in the fitness of things appropriate to transfer the said writ petitions to this Court and, accordingly, it is so ordered. Mr. Dave and Ms. Jaising have fairly agreed to this course of action.”

It is this observation that Ms. Jaising has now rebutted and has approached the Court for its removal. Ms Jaising has clarified that she is not appearing for either of the petitioners in the case, senior advocate Dushyant Dave is appearing on behalf of Bombay Lawyers Association.  She has stated that it follows from this that she could not have agreed to the transfer.

On 23rd January, she mentioned before the Court of the Chief Justice that this error should be corrected and pointed out the page to her request to intervene is recorded. She noted that the judges kindly agreed to her request. Ms Jaising has apprised the court that she will be filing an intervention on behalf of Admiral Ramdas.

The Court on Monday directed that similar Writ Petitions pending before the Bombay High Court be transferred to it and barred all High Courts from entertaining any similar petitions.

The suspicious circumstances surrounding the death of Judge Loya was brought into the limelight following news reports done by the Caravan published on 20th and 21st November, 2017. They raised several questions raised by the family with regard to the death of the 48-year-old CBI Judge in Mumbai, Brijgopal Harkishan Loya, the judge who was hearing the alleged encounter killing of Sohrabuddin Sheikh in 2005.

The reports have understandably created a furore in the legal fraternity. The matter has previously been assigned to Justice Arun Mishra and Justice Mohan M. Shantanagoudar. In the press conference on 12th January, which was called by the four senior-most judges of the Supreme Court after the Chief Justice, the media asked the judges if their concerns were connected to the Judge Loya case to which Justices Chelameswar and Gogoi responded in the affirmative. There have been allegations against the CJI of allotting matters to benches arbitrarily and ignoring the seniority of judges when constituting benches of grave importance. Following this controversy, the Judge Loya petition was transferred back to the CJI court.

While the circumstances surrounding the death of the judge have raised certain questions, there are also legal questions that have been raised and must be addressed. For one, in the order passed in the case of CBI v Amitbhai Anil Chandra Shah it was held:

The Administrative Committee 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.”

However these directions by the Supreme Court were clearly flouted as the first judge hearing the case JT Utpat was transferred from the CBI special court in June 2014, and replaced by Loya.

The next date for the hearing is 2nd February.