The bench replied by saying that the judges ask themselves in every case whether it is appropriate for them to hear it.CBI Judge B.H. Loya. Credit: FacebookNew Delhi: The hearing of the pleas seeking an impartial probe into the death of Judge Loya in the Supreme Court took an interesting turn on Friday when Prashant Bhushan, the counsel for the intervener – Centre for Public Interest Litigation – suggested to the bench whether two of the judges on the bench, should consider recusing in view of their past association with the two judges who are witnesses in the case. He, however, added that he did not mean any disrespect to the judges on the bench, which also includes Chief Justice of India Dipak Misra.The two judges on the bench, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud, had served the Bombay high court, and had known the two serving judges – Justice Bhushan Gavai and Justice Sunil Shukre – who had gone to the Meditrina Hospital, Nagpur, when Loya was taken there, and where he was declared dead on arrival in the early hours of December 1, 2014. When Bhushan suggested this, Justice Khanwilkar took strong objection to this, asking whether the high court could have heard this at all, as the Bombay Lawyers Association had filed the petition there first, and which was later transferred to the Supreme Court. The implication is that if Bhushan’s reservations are justified, then none of the high court Judges could have heard this case, as the petition was originally filed there. To this, Bhushan replied that he did not file his intervention application in the high court, and so he was entitled to raise this issue. Justice Chandrachud, however, challenged Bhushan to raise it squarely, so that the bench could answer it, adding that the judges ask themselves in every case whether it is appropriate for them to hear it. Earlier, Bhushan explained why he believed that the four judges whose statements have been submitted by the State of Maharashtra in its discreet inquiry report cannot be said to have endorsed the view that judge Loya died of a heart attack. They only said that he complained of chest pain, which could be due to poisoning, as the ECG report on Judge Loya, published in Indian Express, is not suggestive of a heart attack, having suffered by him. Prashant Bhushan pointed out that the experts, whom he cited, relied on the histopathology report and ECG report of Judge Loya that were not submitted by the State of Maharashtra in the documents handed over to the court. According to him, the histopathology report shows a normal histology of the heart tissues and points towards congestion in the brain. The ECG report, as pointed out by Dr.Upendra Kaul, former professor of Cardiology atAll India Institute of Medical Sciences (AIIMS), does not indicate myocardial infarction. As Prashant Bhushan repeatedly referred to the expert opinion of Dr. R.K. Sharma, former head of the Forensic Medicine and Toxicology Department at AIIMS, to rule out that Loya died of a heart attack, Maharashtra’s counsel, Mukul Rohatgi sought to demolish it. Dr. Sharma’s views were carried by Caravan on February 11. Rohatgi claimed that Dr. Sharma has written to the AIIMS committee of three doctors set up to examine this issue on the request of the Nagpur Police to say that he only had a general discussion with the Caravan reporter on the issue, and did not subscribe to its story, and that a holistic opinion could not be formed on the basis of the facts presented to him.Rohatgi also sought to answer the criticism that the state displayed “obscene haste” in conducting the discreet inquiry, by citing the Vigilance Manual, which mandates the conduct of such inquiries whenever such reports appear in the media regarding important personalities. Rohatgi also raised the issue of whether an intervener like Bhushan could be permitted to argue like a petitioner in this case. Bhushan responded saying that he considered this as a non-adversarial case, and therefore, the normal rules of pleadings are not relevant here. Indira Jaising’s contentionsIndira Jaising, during her response submissions, raised the issue of why the four judges, under whose custody Judge Loya died while being transported from Dante Hospital to Meditrina Hospital in Nagpur on December 1, 2014, failed to report it to the police immediately, as required by law. Their statements were recorded only in 2017. Besides, she also questioned the anomaly of not recording the statements of any of the doctors who conducted the ECG on Loya and who performed the post-mortem. Their statements are relevant to decide whether an inquiry has to be directed, she said. The transfer of J.T. Utpat, the trial judge in the Sohrabuddin case, in 2014, by the administrative committee of the Bombay high court, despite the Supreme Court’s clear direction not to do so, was raised by Jaising, who disagreed with the state government’s defence that the trial had not begun when he was transferred. Referring to the Supreme Court’s order, she said, Judge Utpat was “assigned” the case, and therefore, the fact that the trial had not begun could not be the answer. She urged the court to initiate suo moto contempt proceedings against the high court’s administrative committee for violating its order to maintain the majesty of the Supreme Court.Also read: » What we know and what we don’t know in the death of judge Loya case» Truth the casualty in face-off between powerful accused and helpless witnesses in the Sohrabuddin trial, writes Sukanya Shantha» Loya case: Petitioner questions efforts of former Bombay HC chief justice to ‘shun enquiry’Jaising also underlined that it was the Administrative Committee of the high court, and not the state, which transferred Judge Utpat, and Rohatgi, being the counsel for the state government, cannot answer on behalf of the high court. She urged the court to direct registration of First Information Report (FIR) in accordance with law, and oversee the investigation by a Special Investigation Team (SIT) with the help of an expert panel of doctors, to look at every single aspect of the case. Rohatgi’s responseIn his response, Rohatgi said Loya, according to Caravan’s story, had a long conversation with his wife on the night preceding his death, in which he had referred to his stay at Ravi Guest House, Nagpur. Therefore, he asked how the petitioner and the interveners could raise the question whether Loya stayed at all at the guest house. Rohatgi also defended the non-filing of FIR in the case, because none of the Judges who accompanied him before his death, thought it was a crime, as Loya was a known friend. Rohatgi urged the court to dismiss the plea for an impartial probe on the basis of the story in Caravan, which he claimed, has “no circulation”. He will continue his submissions on Monday at 2 pm.When the senior counsel, Harish Salve pleaded his inability to be present on Monday, Jaising suggested to the bench that he be allowed to complete his submissions on Friday, so that the counsel would have the opportunity of hearing him, to which the bench agreed. Salve emphasised that the Bar is robust enough, and therefore, it was highly improper that the former attorney general, and solicitor general (Rohatgi and himself) should be called names, because they appeared for someone else as part of their legal practice earlier. “Please don’t allow this to happen,” he appealed to the bench. Petitioner’s counsel, Dushyant Dave had opposed the appearance of Rohatgi and Salve in this case as the counsel for the state because they had earlier appeared for Amit Shah, an accused in Sohrabuddin case, who was discharged following the death of Judge Loya. Opposing the plea for independent inquiry into Loya’s death, Salve asked whether the judges, whose role is sought to be probed, are conspirators in a murder. “Can one politician (referring to Amit Shah) cause this to happen? What will happen to the orders of these judges? Judges have to be protected. If the four judges have to be questioned, they have to be questioned for their alleged role in the murder,” Salve concluded.