High Voltage Hearings In Mysterious Loya Case

Raman Swamy

It was courtroom drama at its best.  There was pin-drop silence in court No. 1 of the highest court in the land on Friday afternoon as skilled legal brains engaged in high voltage arguments, razor-sharp interjections and lightning-quick rebuttals.   

Listening with rapt concentration were the three eminent judges on the Bench - Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar – occasionally making terse observations and seeking pointed clarifications.

It is a case that that gripped the attention of the nation – the Judge Loya mystery.  It has all the elements of a best-selling pot-boiler – the strange death of a judge in inexplicable circumstances, the allegation that he may have been murdered, lurking suspicions of the possible involvement of a powerful politician. 

Much is at stake.  The final verdict has the potential of changing the course of contemporary national politics.  Several writ petitions have been filed seeking an independent probe into the death of the CBI Special Judge Brijgopal Harkishan Loya.  Multiple hearings have been scheduled. 

On Friday, it was the turn of Dushyant Dave, appearing on behalf of Bombay Lawyers’ Association, to recreate the sequence of events and lay out his case.

He began with a bang.  The report of the commissioner of intelligence of the state of Maharashtra, he said, is a bundle of contradictions.  The state should be favouring an independent probe instead of opposing it.  Even if we assume that it was a natural death, what is the harm in an inquiry?

He then listed the discrepancies - “When Loya allegedly had a heart attack, none of the four judicial officers whose statements have been produced were with him. There was only a person named Dr. Prashant Rathi who claims Loya had called him. He was taken to the Dande Hospital in Nagpur, from where he was shifted to the Meditrina Hospital. The police report dated December 1, 2014 or any other document does not mention the presence of any other judicial officer”.

False!  Cried Mukul Rohatgi, representing the government of Maharashtra.  “False! Loya had stayed at a room in the Ravi Bhavan in Nagpur with two other judges. He had called deputy Registrar Rupesh Rathi and was taken to the Dande Hospital, wherefrom he was being taken to the Meditrina hospital but died on the way”.

He added:  “For two years after the death, nothing was done. Then suddenly an article appeared in the Caravan magazine. Thereafter the Chief Justice of the Bombay High Court directed the DGP to conduct a discreet inquiry. He spoke to the four judicial officers who stated that they had stayed at the government guesthouse with Loya and that the deputy Registrar had been called”

Dushyant Dave brushed aside the interruption with a curt retort: “Judge Loya was not taken to Lata Mangeshgar or some other good hospital but some third-grade hospital. What is going on?”

From the Bench, Justice Chandrachud sought to cool tempers -  “Let us have a bird’s eye view of the case so that we can understand which documents are already on record and which need to be filed”.

Dave proceeded to make his submissions based on the earlier mentioned note prepared by him- “In 2010 in the case of Rubabbuddin Sheikh v. State of Gujarat, the Supreme Court had ordered that investigation be conducted not by the local Gujarat police but by the CBI as ‘justice is not only done but also seen to be done’.

Thereafter, on September 27, 2012, the apex court had mandated that the trial in the case be shifted from Gujarat to Maharashtra, stating that it was ‘convinced that in order to preserve the integrity of the trial it is necessary to shift it outside the State’. The Supreme Court had also ordered that the trial be heard by the same judge from start to finish”.

Criticizing the administrative order of the High Court transferring JT Utpat, the judge who first heard the trial, and replacing him by Loya, Dave said, “On June 6, 2014, Utpat had rebuked Amit Shah for seeking exemption from appearing in court. Thereafter, he was given marching orders; he was asked to move to Pune forthwith. It is suspicious. On October 31, 2014, Loya, who had allowed Shah the exemption, asked why Shah had failed to appear in court despite being in Mumbai on that date. Finally, Loya died on December 1, 2014”.

“In a matter involving the killings of three persons, an application under section 227 Cr. P. C. is not admissible”, he commented.

Mukul Rohatgi bristled with indignation - “Are we talking of Loya’s death or an order of the High Court transferring a judge?”, he asked. 

“We have made the High Court party to our petition”, replied Dave coolly.

He then went on - “On November 23, 2017, the Home Secretary directed inquiry. On the same day the Commissioner of Intelligence, in his letter addressed to the High Court, mentioned about the four judicial officers. How could have possibly known at that time? Within 5 days, the report was submitted to the Chief Justice on November 28, 2017”.

“Letters of the four judges sound parrot like. The Chief Justice and the Registrar were in the adjoining guesthouse. Why did they not call Loya’s wife and family? Why did they not take him to the best hospital?  Rathi’s statement was recorded at 8:33 AM and the death happened at 6:15 AM. But there is nothing in the statement about the presence of any other person”.

Elaborating on the contradictions in the statement dated December 1, he advanced, “The statement was recorded at PS Sitabuldi. There has been a falsification of records by the police. If the other judges were present, Brijgopal Harkrishan Loya would not have been mentioned as ‘Brijmohan’ Loya by Rathi, who claims Loya was a relative of his uncle. Also, Loya allegedly complained of chest pain at 4 AM. Why was he not admitted in a hospital till 6:15 AM? Besides, the claims regarding Dande Hospital are false; there is no mention in that regard. The statement mentions only Meditrina Hospital”.

Relying on the statement, Dave regarded with incredulity that upon being informed of Loya’s death by the doctor at Meditrina Hospital, Rathi insisted on completing formalities and sending the body to his native place Latur as his family was “far”. “How is this possible? Why was the body taken to Latur? Let the state file photographs of Loya at the wedding of Justice Swapna Joshi’s daughter. It is a lie”, he added.

Mukul Rohatgi interjected again - “The body was not given to a stranger. After the post mortem, it was carried to his native place in an ambulance accompanied by two other judicial officers”.

To which Dave replied - “And surprisingly, at Loya’s funeral, Justice Chavan was the only member of the judiciary present!”

“Should the statement of three judges and the transfer order of the High Court be dismissed? Are the Chief Justice of the High Court and five other judges not telling the truth?”, inquired Mr. Rohatgi.

“Of course, the statements should be dismissed. And no judges of the High Court have given statement to the police, they just went to press”, replied Dave. 

Addressing the bench, he continued, “You all have been Chief Justices of High Courts. In an instance like this, the Chief Justice goes out of his way to support the family of a member of the subordinate judiciary. Let these judges file affidavits; I wish to cross examine them. Why is the state shying from filing affidavits?”

Referring to the hospital bill, Mr. Dave remarked, “Judge Loya was allegedly brought dead. So how are these expenses under the heads of neurosurgery, critical care medication, diet consultant etc to be explained? These were incurred for a dead man? Loya was never taken there”.

Mukul Rohatgi once again interjected - “The doctor does not dismiss a patient at the doorstep. The patient is admitted and attempts are made to resuscitate. It has been stated that the shock procedure and CPR were performed, a rhythm was acquired but the patient could not be saved”.

Dave responded - “The name of the person admitting Loya is mentioned as Shrikant Kulkarni. Kulkarni was a colleague of Loya’s and he has stated his relationship with him as ‘friend’? When you subsequently create a document, you write from memory. Also, the time of admission is shown as 6:27 AM, but Loya was said to have been brought dead at 6:15 AM? These are fabricated documents subsequently generated”.

Rohatgi insisted that fellow judge Shriram Modak had informed Loya’s wife of his illness at 5 AM.  But Dave exclaimed, “Thank you for drawing attention to the wife’s statement. It was procured under pressure. Modak has said in his statement that he does not know who had called Loya’s wife”.

Turnign to the Bench he said -  “Please speak with judge Loya’s wife, sister, father and son in chambers. If they say they do not want any investigation, that could well be the end of the present petitions”.

He then moved on to the postmortem report, and commented - “A man allegedly complaining of heart attack was wearing a brown shirt, jeans and a black belt early in the morning?”

Raising doubts on the credibility of the postmortem report in so far as it describes the condition of the body of Loya, Dave said, as per the report, the postmortem was conducted at 10:50 AM, four hours after the death. The body should have been stiff by then”.

He added -  “And surprisingly, the postmortem dated December 1, 2014 mention the police inquest and report dated December 10 and December 7 respectively”.

At this point Indira Jaising added that there has been overwriting in the postmortem report.  “Under the date December 1, something has been written ….  either November 30 or 31 is written”.  The Bench agreed with her after scrutinizing the document.

Dave pointed to other contradictions in the form and the legal notice for the transfer of the body by the same doctor.

In respect of the forensic investigation of the body, he said, “Is this how the death of a sitting judge is investigated? That the body was forwarded on January 1 and the report only came on February 5?”

“Also, the body was forwarded by a Constable of PS Sitapuldi but the postmortem report says PS Sadar”.    

Mukul Rohatgi retored -  “The post-mortem was carried out a government hospital in Sadar. Meditrina Hospital is in Sitapuldi”.

“But the second police station never shows interest in the instance.  It is the police station where the murder has happened which actively participates”, Dave pointed out.   

He also submitted that there are no entries in the guestbook of Ravi Bhavan under the name of Loya though the name of every judicial functionary is mentioned in it.   “Also why would he sleep in one room with two other judges? Surely Justice Swapna Joshi could have made sufficient arrangements?”, he added.

“There were two beds and three people. That sounds strange. But even if it was so, the guestbook records the number of persons separately”, advanced Indira  Jaising.

Dave also questioned the conduct of judge Vijaykumar Barde in so far as he stated that he had met Loya’s wife a few days after the incident. 

At this point, Justice Chandrachud asked Dushyant Dave to not judge the personal view of members of judiciary as each person has a different manner of reaction.   The Hon’ble Judge added that he was not suggesting that it was a natural death.

Dave continued -  “Why were attempts being made to contact friends of Loya at Haji Ali? His phone was accessible. Why did they not contact his wife? Is it in the nature of a wife to not rush the hospital, particularly when there are 3 morning flights to Nagpur?”

Based on a letter of the assistant commissioner of police procured in a RTI query, Dave brought to the attention of the bench that Loya’s security had been withdrawn on November 24, 2014. He cited the judgment in Delhi Judicial Services v. State of Gujarat wherein it was observed that any onslaught on the subordinate judiciary is an attack on the entire institution and not just one man.

Dushyant Dave then cited the grounds on which plea for probe is justified.  “There are at least three important aspects -- the discharge of Amit Shah, the background of the case in which charge-sheet was filed and the discharge of other police officers.  Also, the transfer of the first judge and the death of the second.  These matters cannot be lightly thrown out at the first instance”, he said.

The Bnech however said it was concerned only with the death of Judge Loya, and would not go into other aspects including BJP president Amit Shah's discharge in the Sohrabuddin Sheikh fake encounter case. 

Senior Counsel V. Giri then argued that Shrikant Kulkarni, who allegedly admitted Loya in the hospital, should have given intimation to the police.  As per the record of the SHO, Dr. Rathi was called to the police station for inquiry, who stated that Loya complained of chest pain at 4 AM and called Rathi. Thereupon, Rathi admitted him at Meditrina Hospital.   

Giri also prayed that the ECG reports of both hospitals be placed before the bench. “The ECG machine at Dande was allegedly broken. If at all an ECG was carried out, the reports must be produced”. 

Indira Jaising prayed that the register of Ravi Bhavan, the ECG report if any performed and the complete statement of registrar Rathi in which three sentences are missing should be filed.   

Mukul Rohatgi agreed to produce the all such records. 

This is just a gist of the high-voltage submissions and arguments during Friday’s hearings, based on live law website.  In the hearings to follow, the suspense is certain to intensify even further as more details emerge about the mysterious and murky circumstances surrounding the death of Special Judge Brijgopal Harkishan Loya.

Feb 06, 2017

Raman Swamy [email protected]

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