The Maharashtra government on Monday told the Supreme Court that testimony of four judges, who were “eyewitnesses” and were with CBI judge B H Loya “like a shadow” for three days until his death on December 1, 2014, is “unimpeachable”, and that “minor contradictions” of the statements are “irrelevant”. The judges had recorded their statement during a discreet inquiry by Maharashtra intelligence officials into the death of Loya, who was hearing the Sohrabuddin Sheikh encounter case.
Referring to statements of lower court judges, who had accompanied Loya to Dande Hospital and Meditrina Hospital in Nagpur on December 1, 2014, senior advocate Mukul Rohatgi, representing Maharashtra government, told the court that their statements show Loya was “not left alone”, and that “ECG was conducted” at Dande Hospital.
“The state is satisfied with discreet inquiry. Many other things are happening outside (this court). Press conferences are being held. Everybody is arguing as if it is a murder. But no one (petitioner) had the courage to read the statements of the judges who were at the site. And now it is time this court brings curtains down in the case,” Rohatgi told the bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud.
“(These) judges were eyewitnesses from the night of November 29 till December 1. These judges were with the deceased till the ambulance left to his hometown – these judges were like a shadow,” he argued. “Statement of the judges are unimpeachable, and unless their statements have to be totally rejected…only then this court can order an inquiry.”
Rohatgi told the court that the Chief Justice of Bombay High Court did not grant the permission to the Commissioner of State Intelligence to question Justices Bhushan Gavai and Sunil Shukre, and granted permission to question the members of lower judiciary who were with Loya on December 1. Referring to the statement of judge Shrikanth Kulkarni, Rohatgi said: “His statement clearly mentions that they (Loya, Kulkarni and Modak) went to Nagpur on a personal invitation of judge Swapna Joshi…it also shows that he called local judge Vijaykumar Barde and asked him to rush to Ravi Bhawan after Loya complained of chest pain. He came with judge Rupesh Rathi…. Another local judge, Waikar, was informed… Rathi also called his cousin Dr Pankaj Harkoot, a specialist, from Meditrina…. His statement shows that on way to Meditrina, Loya collapsed and after being given treatment (at Meditrina) he could not survive.
“Kulkarni also informed the two judges of High Court and secretary to Chief Justice Mohit Shah. Two other magistrates were sent in another car that followed the body after postmortem,” he said. Rohatgi argued that the scope of inquiry is whether the judge died of medical ailment or died without ailment – “that is the only question. The question is not if he got good medical treatment or any compensation.”
“…Why the judges stayed in one room, why a judge name was not there in the register and the viscera report (findings) is not relevant…. The matter of fact is that judges of High Court, including the Chief Justice, were informed on December 1 and they reached the hospital around 7 am,” he argued. Referring to Rathi’s statement, Rohatgi said, “He is the one who spoke about ECG not working, which is being discussed (outside)…but that is his personal impression…”
Rohatgi said ECG picks up impulse from different parts of the body where the nodes are connected. “In case, out of the 12 nodes only 2 are connected – then the ECG will take only impulse of the two…and in any case that ECG was not working is only his impression….But the most important fact is that ECG was done at Dande hospital and which was carried to Meditrina hospital ..and the doctors at Meditrina hospital saw that ECG report which showed a T-shape. Also, this ECG report is part of the official police records,” he said.
Pointing out that judges are “layman as far medical terms are concerned”, Rohatgi contended, “Judge Barde, in his statement, has said medical officer on duty had conducted ECG…these are natural statements. All of them knew the deceased. Not one was upset with him…. The testimony of four judges, during the discreet inquiry, shows that not one but several judges were present. And within half-an-hour, even the Chief Justice arrived. How can anybody create suspicion or have any doubt about these (statements)? There could be minor contradictions (but) that is irrelevant.”
Rohatgi also argued that the SC should see whether “substantial public interest is involved” in the case. “There is no verification of news reports by the petitioners…. This PIL has been filed to scandalise and sensationalise the death of a judge. Nobody raised any doubt for three years. But the petitioner filed the PIL based on an article bereft of facts and without any verification. (A) flurry of petitions follow, as if they have risen from slumber…. There must a genuine public interest involved,” he said,
He said, “…the pleadings show the PIL is not filed in the interest of judiciary. Petitions based on news reports without verification cannot be the basis to file a PIL. This is the canvas in which your lordship will examine the petition.”
In a scathing attack on petitioner Tehsin Poonawala, Rohatgi said: “We don’t know who the petitioner is and about his credentials, and how (he) is acting for the benefit of society…. His source of knowledge is media reports. His petition mentions safety of people. What is the safety of people involved? He just wakes up and files a three-page petition – at a time when there is a long queue of cases lying pending in the Supreme Court. The allegations are reckless…”
Rohatgi also questioned Bombay Lawyers Association for having moved the Supreme Court three years after Loya’s death. “They have argued that CBI Judge J T Utpat, who was assigned the Sohrabuddin Sheikh fake encounter case, was transferred out during pendency of the trial against SC directive. But the trial only began in 2017. If they knew about transfer, and the judge died in their state, why did they wait for three years ? It is a guise, and we don’t know who were standing behind petitioners.”
Interjecting, counsel for Bombay Lawyers Association Senior Advocate Dushyant Dave said, “Your lordships brought in Article 139 A. I am happy to go back (to the Bombay HC).” To this, Rohatgi said, “You are arguing as if state is criminal and judges are lying. And that they are bereft of facts.”