Counsel Make Strong Case for Probe Into Loya’s Death, But Acrimony Mars SC Proceedings

Petitioner who moved court for independent inquiry apparently feels no need for it anymore, prompting allegations of engaging in underhand attempt to bury the case.

Dushyant Dave (left), the Supreme Court of India (centre), Justice D.Y. Chandrachud (right).

New Delhi: Senior counsel for the Bombay Lawyers Association, Dushyant Dave, on Monday moved an application in the Supreme Court to cross-examine 11 witnesses – including two high court  judges – whose statements were recorded by the Maharashtra government’s commissioner of state intelligence (CSI) in its ‘discreet inquiry’ into Judge B.H. Loya’s death in the intervening night of November 30-December 1, 2014.

Dave made this unusual request after expressing his lack of confidence that these witnesses made statements, pointing to Loya’s natural death, to the intelligence department voluntarily.

At the time of his death, Loya was presiding over the CBI special court tasked by the Supreme Court with conducting the trial of BJP leader Amit Shah and several Gujarat policemen for the killing of Sohrabuddin and his wife Kauser-Bi in a fake encounter in 2005. The judge who took charge of the case after Loya discharged Amit Shah from the case before the month ended. Since then several other accused persons have also been discharged.

Monday’s hearing before a three judge bench of the Supreme Court comprising Chief Justice Dipak Misra, Justice  A.M.Khanwilkar and Justice D.Y.Chandrachud, saw a mix of acrimony and serious deliberation. Dave claimed that his application to cross-examine the witnesses during the proceedings under Article 32 was based on Order 9 of Supreme Court Rules, which deals with affidavits. Dave also sought the bench’s permission to bring on record additional evidence in the form of video recordings of Loya’s father, sister and son.

Ugly spat between counsel and bench

Pallav Shishodia, counsel for one of the petitioners praying for a probe into Judge Loya’s death, told the bench that an independent probe cannot be one-way traffic, and that persons alleging Judge Loya’s death was suspicious can’t “hit and run”. Shishodia, representing journalist Bandhuraj Lone, surprised every one when he told the bench that the reports of Loya’s suspicious death are based on hearsay evidence, and that the court could deal with the plea for an impartial probe “appropriately”.

Shishodia’s remark provoked Indira Jaising, representing Admiral L.Ramdas, an intervener, to observe that Shishodia’s client need not have filed the writ petition if he did not want an enquiry. At this stage, senior counsel Dushyant Dave, representing the Bombay Lawyers Association, another intervener, remarked that Lone had filed his petition to preempt the hearing in the Bombay high court and had made his intention clear by engaging Shishodia. This is when all hell broke loose in the court room.

Shishodia, who had earlier represented Amit Shah in the Sohrabuddin encounter case, did not see any conflict of interest in appearing for Lone, as alleged by Dave. He did not take kindly to Dave’s insinuation, and asked him to “go to hell”.

The ugly spat that followed made Justice Chandrachud invoke the two portraits adorning the hall in court No.1, of the first chief justice of India, H.J. Kania, and the fourth CJI, Bijan Kumar Mukherjea, also a great scholar, reminding the counsel that they were watching the proceedings, and that decorum had better be maintained. “You have to listen to the judge, and address the bench”, Justice Chandrachud told Dave and Shishodia sternly, appealing to them not to have a dialogue between themselves.

When Dave insisted that the judges should ask their conscience whether it was correct to permit Harish Salve, Mukul Rohatgi and Shishodia – all of whom had defended Amit Shah earlier – Justice Chandrachud asked him not to advise them about their conscience.   Dave asserted that allowing them to argue the case was tantamount to obstructing justice.

Justice Chandrachud then reprimanded Shishodia for using unparliamentary language against Dave, which provoked a further spat between them. Shishodia, appearing to regret what he said, asked the bench how being the counsel to some party could be an issue. He said: “We project a point of view, which our clients tell us”.

Dave retorted that while the Bar Council of India issued notices to him, and Prashant Bhushan, for their stand as counsel in the case, lawyers like Salve, Rohatgi and Shishodia get away. “I am not going to be cowed down”, he said.

When Justice Chandrachud called for an end to this “banter”, Dave said there is a genuine apprehension that the state is taking a lopsided view in this case.

Indira Jaising’s contentions

Interrupted by this digression, Jaising then moved on to her substantive arguments. Referring to the law on when an enquiry has to commence, she said the procedure for investigation is set in motion when there is a reason to suspect. Citing the presentation of V. Giri, the counsel who argued prior to her, she said it contained enough reason to suspect the theory of natural death of Judge Loya.

“The threshold is not that I have to show a prima facie case”, she said, while clarifying that the threshold for issuing a chargesheet is strong suspicion. If there is a reason to suspect, that should alert you, she told the bench. “Giri has given many many reasons to suspect – that there is a case to investigate”.

Describing the discrepancies, she asked whether Loya had actually stayed in the guest house in Nagpur. Her interlocutory application (IA) which has annexed the guest house record on that fateful day (November 30-December 1, 2014), shows that Loya’s name is not there in the register of Ravi Bhavan, where, it was claimed by the state, he had stayed.

Judge S.M. Modak’s statement that three of them including Loya stayed in one room, that they slept in one room, is highly unbelievable when other rooms were available, Jaising told the bench.

When Justice Chandrachud pointed out that it is the high court’s protocol officer who makes a request for rooms for judges, she said no matter who you are, the names of guests get registered. “Whether you are a politician or a judge, no matter how high, your name gets entered in the register”, Jaising explained to the bench.

Discrepancies laid out

Earlier, Giri, appearing for the petitioner, Tehseen Poonawala, made the discrepancies in the official version, threadbare.  The commissioner of state intelligence (CSI) did not undertake any investigation to establish the presence of the deceased in Ravi Bhavan, or the claim that he attended a wedding, he said.  No medical documents from Dande hospital, where Loya received initial treatment, were obtained, and no verification was done from the doctor, Pankaj Harkut, who advised that Loya be taken to cardiac center, Giri pointed out. The fact that Harkut was a neurosurgeon was also odd, Giri noted.

“The story presented by the state of Maharashtra does not inspire confidence and requires investigation”, Giri said in his written submission. The four concerned judicial officers who gave a written statement to the CSI, were not verified to ensure whether their act was voluntary, he said.

“It was imperative upon the DG/commissioner to record the statements of the judicial officers themselves at the time of conducting enquiry/verification in order to ascertain the truth and veracity/independence of the contents of the statements. The said enquiry has been conducted by the DG/commissioner outside the bounds of law in a casual manner,” the written submission claimed.

The CSI’s discreet enquiry report does not inspire confidence as it was concluded in a tearing hurry in a matter of five days between November 23, 2017 to November 28, 2017 without conducting any independent investigation, Giri contended.

Giri further alleged that the discreet enquiry report has made a false statement that the 16 independent persons who were privy to the incident were verified. Among them are the medical officer/doctor of Dande Hospital, who attended to Loya, and Dr. Harkut, who was present at Meditrina hospital, where Loya was taken after he died.

Giri, in his submission, has questioned the need to take Loya to Meditrina Hospital, leaving all other hospitals, only on the suggestion of Dr. Harkut, and the CSI’s failure to question him on his association with Meditrina hospital. Giri has also questioned why Dr. Harkut conducted neurosurgery upon Loya, when there was no need for it.

Giri has also questioned the absence of any explanation by the CSI on why Dr. Prashant Rathi, and the concerned police officers sent the body of Loya to Latur when they were aware that his family lived in Mumbai. Rathi’s non-mentioning of the four judicial officers, who claimed to have been present during the incident, has also been cited by Giri as a relevant factor to be considered.

Arguments will continue on February 9 at 2 p.m.

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