TERMING THE matter as “serious”, the Supreme Court Monday transferred to itself two petitions pending in the Bombay High Court demanding an independent probe into the death in 2014 of CBI special judge B H Loya.
“As of now, it’s a natural death. Let’s not cast aspersions. Let’s not prejudge,” said Justice D Y Chandrachud who is part of a three-judge bench headed by Chief Justice of India Dipak Misra hearing the two PILs filed by journalist B R Lone and activist Tehseen Poonawala.
Justice Chandrachud delivered these remarks while intervening to defuse a heated argument between Senior Advocates Dushyant Dave, representing the petitioners, and Harish Salve, appearing for the Maharashtra government.
Dave had repeatedly referred to BJP president Amit Shah who was initially an accused in the Sohrabuddin Sheikh fake encounter case, which was being heard by Loya at the time of his death. Shah was later discharged by the court, with the CBI yet to lodge an appeal.
According to police and medical records, Loya died of a heart ailment on December 1, 2014, in Nagpur where he had gone to attend the wedding of a colleague’s daughter.
On Monday, while transferring the cases from the Bombay High Court, the apex court bench, also comprising Justice A M Khanwilkar, said: “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…and another at the Nagpur Bench…We think it in the fitness of things appropriate to transfer the said writ petitions to this Court and, accordingly, it is so ordered.”
The petitions will be heard alongwith two PILs filed in the Supreme Court, also demanding an independent probe, on February 2.
Pointing out that it was seized of the matter, the court said: “We are sure that no other High Court, including the High Court of Bombay, will entertain any further petition with regard to the subject matter in issue.”
During Monday’s hearing, Salve said that a senior police officer had carried out a “discreet inquiry” after media reports raised questions on the circumstances surrounding the judge’s death. As part of this inquiry, the statements of four judges who attended the marriage along with Loya were recorded after obtaining permission of the Bombay High Court’s Chief Justice, he said. These statements showed there was no foul play, said Salve.
However, Dave claimed that there were serious contradictions in the explanations given by the state. Mentioning Shah and addressing Salve, Dave alleged that “the only one who is interested in stalling an independent inquiry is your client”. Salve had appeared for Shah in the past and the court should not allow him to represent the state in this matter, said Dave.
“He (Salve) has done enough damage. He should not be allowed to assist the court… Let the court appoint an amicus curiae,” Dave said.
As the exchange flared, Justice Chandrachud said: “I think we must equally look at the issue objectively… This is a serious issue. Let’s look at all the documents and hear the case objectively and dispassionately… Ultimately, each of you like us is the keeper of our own conscience. We cannot tell a lawyer to appear and not to appear.”
While Salve took objection to Dave’s comments, the latter said: “Stop giving lectures. You are the last person to speak on morality.”
Dave said he would produce documents he had obtained under the RTI Act on the matter and alleged that petitions filed in the Supreme Court were a bid to to pre-empt the matter coming up in the Bombay High Court.
To Justice Chandrachud’s suggestion, Dave said he was not “prejudging… but the manner in which the government was defending leaves a lot to be desired”.
When Salve submitted that four judges had given statements that there was nothing suspicious about the death, Dave said: “Forget the judges. The father and sister have demanded a probe. The son (Anuj Loya) had written a letter to the Bombay High Court seeking a probe.”
On the press conference held by Anuj in Mumbai, when he said that the family no longer suspected any foulplay, Dave said: “The 19-year-old is presented on TV by a lawyer to say we don’t want probe.”
At this, Justice Chandrachud said the court had seen all media reports on the issue, including the report by The Indian Express.
The issue came under the spotlight last November following a report in Caravan magazine in which Loya’s sister and other close relatives raised questions over the circumstances surrounding the death. A subsequent investigation by The Indian Express revealed that crucial claims in the report — the ECG was not working, someone unknown to the family picked up the body, the judge was virtually abandoned after his death and that his body was sent to his village home unescorted — were not supported by evidence on the ground, including official records.
Besides, two judges of the Bombay High Court, Justice Bhushan Gavai and Justice Sunil Shukre, who went to the hospital where Loya was admitted and made arrangements for the transport of the body, told The Indian Express that there was nothing suspicious about the circumstances of the death.
The issue was also raised at the unprecedented press conference on January 12 by the four most senior judges of the Supreme Court — Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph — who questioned the conduct of CJI Justice Misra, especially over allocation of cases, including the pleas on Loya’s death.
Referring to media reports on Loya’s death, Justice Chandrachud said: “We need to look into everything. If you have a letter under RTI, please prepare a compilation and show them to court… If you have judge of a district court dead and seven papers are telling us that it requires some attention from us, we must look at the facts that have emerged before us… We have statements of judges before us, assist us with a spirit of objectivity.”
Salve and Senior Advocate Mukul Rohatgi, who appeared for the state government, agreed to submit all documents needed in the court.
But when Salve suggested that the papers be discussed only in court, given the “sensitive” nature of the matter, Senior Advocate Indira Jaising, appearing for the petitioners, objected and said that it amounted to gagging the media.
Dave then referred to Shah again and claimed that the “state is trying to protect one man”. As Salve objected, Dave said, “Your client is a politician of excellence.”
Jaising, meanwhile, continued to argue even as the CJI was engaged in a discussion with other bench members. Visibly annoyed, the CJI said: “Did I utter any word? Did I pass any gag order? This is not fair to me. You must unconditionally withdraw”. Jaising promptly withdrew her comments and apologised.