TEHSEEN POONAWALLA versus UNION OF INDIA AND ANR.

[2018] 9 S.C.R. 1

TEHSEEN POONAWALLA

UNION OF INDIA AND ANR.

(Writ Petition (Civil) No. 19 of 2018)

APRIL 19, 2018

[DIPAK MISRA, CJI, A.M. KHANWILKAR ANDDR. D.Y. CHANDRACHUD, JJ.]

Constitution of India – Art.32 – Judge Loya death case –Writ petitions seeking inquiry into the circumstances of the death ofthe Judge who was presiding over the criminal trial wherein one ofthe accused was the National President of the Bharatiya JanataParty (then Minister of State for Home in the State of Gujarat)–Petitions based on two articles published in the “Caravan” magazineraising suspicion about unnatural death of the Judge as opposedto his natural death due to heart attack – Petitioners inter aliaquestioned the conduct of the colleagues of the Judge in attendingto him – Held: Issue in the present case is whether the Judge died anatural or unnatural death – Conduct of his colleagues in attendingto him is not in question – To attribute motives to his colleagueswho were with him is absurd, if not motivated – They did their bestunder the circumstances, acting entirely in good faith – There is noreason to doubt the clear and consistent statements of the saidjudicial officers – Documentary material on record indicates thatthe Judge died due to natural causes – Members of the family ofthe Judge disassociated themselves from the statements attributedto them in the Caravan publication – No ground to hold that therewas reasonable suspicion about the cause or circumstances ofdeath which would merit further inquiry – Conduct of thepetitioners and the intervenors lack bona fides, scandalizes theprocess of Court and prima facie constitutes criminal contempt –However, criminal contempt proceedings are chosen not to beinitiated – No merit in the writ petitions – Contempt of Courts Act,1971.

Code of Criminal Procedure, 1973 – s.174 – Inquest reportunder – Purpose of – Writ petitions seeking inquiry into thecircumstances of the death of the Judge who was presiding over the

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Acriminal trial wherein one of the accused was the National Presidentof the Bharatiya Janata Party (then Minister of State for Home inthe State of Gujarat) – Plea of writ petitioners that there was noinvestigation/inquiry carried out by the police in the inquest u/s.174– Held: Purpose of holding an inquest is limited – Inquest reportdoes not constitute substantive evidence – Hence, matters relatingBto how the deceased was assaulted or who assaulted him and underwhat circumstances are beyond the scope of the report – Inquestreport is primarily intended to ascertain the nature of the injuriesand the apparent cause of death.

Supreme Court Rules, 2013 – Or. IX, rr.1, 2 – Cross-Cexamination under, of the deponent of an affidavit – Petitionersquestioned the discreet enquiry conducted by the State followingthe articles published in Caravan magazine raising suspicion as tounnatural death of the Judge who was presiding over the criminaltrial wherein one of the accused was the National President of theDBharatiya Janata Party (then Minister of State for Home in the Stateof Gujarat) – Plea of petitioners that doctors and judicial officerswhose statements were recorded during the course of enquiry befirst directed to file an affidavit and then allowed to be cross-examined – Held: Under Or.IX of the 2013 Rules discretion is vestedin the court to allow cross-examination of person who has filedEan affidavit – Petitioners moved Supreme Court in petition filedin public interest and their position is that of relator who seeks tobring grievance to the attention of the Court for the purpose ofseeking court mandated inquiry – None of the persons whose cross-examination has been sought is witness in the present proceedingsF– Petitioners cannot assert as of right that they should be allowedto cross-examine – No justification to allow the request for cross-examination – Constitution of India – Art.32.Public Interest Litigation – Purpose of, and its misuse –Discussed – Constitution of India – Arts.32 and 226.GJudicial Discipline – Recusal of Judges – Held: decisionas to whether judge should hear case is matter of consciencefor the judge.

Judge Loya was presiding over the criminal trial arising outof the encounter killings wherein one of the accused was ShriH

‘AS’, National President of the Bharatiya Janata Party (thenMinister of State for Home in the State of Gujarat). On 29November 2014, Judge Loya travelled from Mumbai to Nagpurtogether with two other judicial officers, Judge ‘K’ and Judge‘M’ to attend the wedding in the family of another judicial officer.On 30 November 2014, Judge Loya and his colleagues attendedthe wedding reception. All of them stayed at Ravi Bhavan, agovernment guest house at Nagpur. In the early hours of 1December 2014 Judge Loya complained of chest pain. He wasinitially taken to Dande hospital. From there he was referred to acardiac care facility. His colleagues accompanied him to Meditrinahospital. Judge Loya died before he was admitted to Meditrinahospital. Two articles were published in the Caravan magazineraising suspicion about unnatural death of Judge Loya as opposedto his natural death due to heart attack. Hence, the presentpetition.

Disposing of the matters, the Court

HELD: Section 174 CrPC

1.1 Section 174 deals with situation where information isreceived by an officer in-charge of police station of personhaving committed suicide, or having been killed (i) by another;or (ii) by an animal; or (iii) by machinery or (iv) by an accident orof having died under circumstances raising reasonable suspicionthat some other person has committed an offence. In any of thesesituations, the police officer is required to furnish intimationimmediately to the nearest Executive Magistrate who isempowered to hold inquests. He is required to proceed to theplace where the body is situated and in the presence of twowitnesses to make an investigation and draw up report of theapparent cause of death. The report would describe the woundsincluding marks of injury which are found on the body and in whatmanner or by what weapon or instrument if any they appear tohave been inflicted. The purpose of holding an inquest is limited.The inquest report does not constitute substantive evidence.Hence matters relating to how the deceased was assaulted orwho assaulted him and under what circumstances are beyond thescope of the report. The report of inquest is primarily intended

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Ato ascertain the nature of the injuries and the apparent cause ofdeath. On the other hand, it is the doctor who conducts post-mortem examination who examines the body from medico-legalperspective. Hence it is the post-mortem report that is expectedto contain the details of the injuries through scientificexamination. [Paras 28, 29] [59-B-F]B

1.2 Sub-section(3) of Section 174 requires the police officerto forward the body for being examined to the nearest civilsurgeon, or as the case may be, to duly qualified medical personappointed by the state government in this behalf, in thecircumstances set out there. Among the circumstances, clauseC(iv) deals with situation where there is any doubt regarding thecause of death while clause (v) deals with case where the policeofficer considers it expedient to do so. Sub-section (4) of Section174 specifies that the District Magistrate, Sub-DivisionalMagistrate and any other Executive Magistrate especiallyDempowered may hold inquests. Under Section 175, the policeofficer proceeding under Section 174 is empowered to summonfor the purposes of the investigation any person who appears tobe acquainted with the facts of the case. Under Section 176,where the case is of the nature specified in clauses (i) or (ii) ofsub-section (3) of Section 174, the nearest Magistrate empoweredEto hold an inquest shall hold an inquiry into the cause of deathinstead of or in addition to the investigation held by the policeofficer. In any other case mentioned in sub-section (1) of Section174 the Magistrate may hold an inquiry. [Para 31] [62-E-H]

The submissions analysedF

1.3 discreet inquiry was ordered by the State Governmentin view of the articles which were published in Caravan regardingthe death of judicial officer. The Chief Justice of the BombayHigh Court granted permission to the Commissioner of the StateIntelligence Department to record the say of the four judicialGofficers. The matter was of importance. Three of the statementsspecifically referred to the letter to the Commissioner while thefourth referred to the request which was made by theCommissioner and the permission which was granted by the HighCourt. There was no reason for the four judicial officers to

procrastinate or delay the submission of their statements. Thereis no basis whatsoever to make any imputation against the fourofficers of the state judiciary. They were present with Judge Loyaat Nagpur to attend wedding in the family of colleague. Eachof them responded, as judges of the district judiciary, to thepermission which was granted by the Chief Justice of the HighCourt to the Commissioner, SID to record their say. The judgeshave spoken about the facts of the case as they could recall, withdetails. Each of the judges has spoken in detail of the facts andevents which were within their personal knowledge. Thestatements contain matters of detail which would be known tothose who were present with Judge Loya. They have ring oftruth. They had nothing to conceal nor an axe to grind. Thestatements were submitted with dispatch. They have beensubmitted without pre-meditation. The four judicial officers actedresponsibly. There was no reason for them either to hasten or tocause delay in submitting their versions of what they knew.Each of the four judges had acted with sense of duty. This ishow they would be expected to conduct themselves, in answeringto call of duty. One of the submissions urged to cast doubt onthe statements is that an article was published in the IndianExpress in which the statements of two judges of the High Court(Justice ‘BG’ and Justice ‘SBS’) were published. It was submittedthat the statements of the judicial officers cannot be regarded asindependent, in view of the fact that two judges of the High Courthad taken the same view as elicited in the Indian Express article,that the death of Judge Loya was due to natural causes. It wassubmitted that judicial officers in the district judiciary could notbe expected to take plea at variance with what was stated bythe two judges of the High Court. It was urged that disciplinaryaction should be initiated against the two High Court judges. Thissubmission is preposterous. It constitutes an undisguised attemptto malign four senior judicial officers and the judges of the HighCourt. What the submission glosses over is that the article inthe Indian Express was published on 27 November 2017 and thatwas when the statements attributed to Justice ‘BG’ and Justice‘SBS’ were published. The statements of the four judicial officersare dated on 23 and 24 November 2017 and were in fact receivedby the Commissioner of the SID on 24 November 2017, much

[2018] 9 S.C.R.

Abefore the Indian Express article was published. [Paras 46, 47][75-G-H; 76-A-H; 77-A-B]

1.4 The issue in the present case is whether Judge Loyadied natural or unnatural death. To attribute motives to hiscolleagues who were with him and took immediate steps to shiftBhim to hospital nearby is absurd, if not motivated. In hindsight,it is easy to criticize actions which are taken by human beingswhen faced with an emergency. It is easy for an observer sittingin an arm-chair at distant point in time to assert that wisdom layin an alternate course of action. That can never be the test forjudging human behaviour. The conduct of the colleagues of JudgeCLoya in attending to him is not in question. They did their bestunder the circumstances, acting entirely in good faith. At Dandehospital, the medical advise was that the condition of Judge Loyarequired him to be shifted to specialised cardiac hospital. Judge‘R’ who was attached to the Nagpur Bench of the High Court atDthe material time was with Judge ‘K’ and Judge ‘M’ when JudgeLoya was shifted to the hospital, as was Judge ‘W’. Dr ‘PH’ whowas relative of Judge ‘R’ was cardiac consultant attached tothe Meditrina hospital. Judge ‘R’ contacted him on phone and itwas at his suggestion that the judges took decision to shiftJudge Loya to Meditrina. To find fault with the judges for thisEcourse of action is unacceptable. The judicial officers of the districtjudiciary acted in good faith to ensure medical treatment to theircolleague. Their conduct cannot be questioned. Judge ‘K’ in hisstatement dated 24 November 2017 stated that “emergencytreatment” was given to Judge Loya at Dande hospital. JudgeF‘M’ stated that after an initial check-up, the doctors at Dandehospital advised shifting the patient to another hospital. Judge‘B’ who was present at Dande hospital specifically stated that themedical officer on duty there examined (“checked-up”) JudgeLoya “by ECG, blood pressure etc. as per their procedure”. Judge‘R’ stated that at Dande hospital, time was wasted because theGnodes of the ECG machine were broken and the machine was notworking. This statement of Judge ‘R’ must, however, be weighedwith the doctor’s progress notes at Meditrina hospital. The deathsummary specifically adverted to the fact that the patient wastaken to Dande hospital earlier where an ECG was done. Dr. ‘D’

made the same statement. The progress notes also noted “tall‘T’” in the anterior lead which indicates that the ECG was seenby the doctors attending to Judge Loya at Meditrina hospital.These progress notes are contemporaneous, since they also formpart of the communication addressed by the doctor at Meditrinato the PSI at Sitabardi (within whose jurisdiction MeditrinaHospital is located) on the same day after the judge had beenbrought dead to the hospital. As matter of fact, it is this veryECG which forms the subject matter of the submissions whichwere urged by one of the intervenors. Having regard to the factthat the ECG was specifically mentioned in the progress notes ofthe doctor at Meditrina hospital, there is no reasonable basis toinfer that no ECG was done at Dande hospital. Further, Judge‘K’ stated that Judge Loya was taken in Judge B’s car to Dandehospital. Judge ‘M’ also noted that Judge Loya was shifted bycar to Dande hospital and thereafter to Meditrina. This isconfirmed in the statements of Judge ‘B’ and Judge ‘R’. Theallegation that Judge Loya was not provided even car to travelfrom Ravi Bhavan to Dande hospital and onwards to Meditrina isa red-herring. [Paras 48-50] [77-F-H; 78-A-B, E-H; 79-A-C, E-F]1.5 Judge ‘M’ in his statement observed that he and Judge‘K’ met the relatives of Judge Loya at his Haji Ali residenceafter few days. The suggestion that this is callous, isunfortunate, besides being incorrect. The family of Judge Loyahad proceeded to Gategaon for the funeral. Can the circumstancethat Judge ‘K’ and Judge ‘M’ met the family few days later inMumbai have bearing on their sense of humanity, as urged?The obvious answer is in the negative. [Para 51] [79-G-H]

1.6 close reading of Judge R’s statement indicates thatwhen he reached Ravi Bhavan and met Judge ‘M’ and Judge‘K’, Judge Loya was attending to call of nature. It is evidentfrom the statement that Judge Loya, when he left Ravi Bhavanwas not unconscious and was complaining of chest pain and heartburn. To urge that the depiction of the clothes worn by JudgeLoya casts doubt on the sequence of events narrated by thejudicial officers is hence untenable. [Para 52] [80-B-C]

A1.7 Judge Loya was taken to hospital in an emergency.The normal course of human events would indicate that his fourcolleagues would be more concerned about getting Judge Loyaattended than filling up an admission form. mistake did occurin recording his name as Brijmohan instead of Brijgopal. Thiscannot be ground to discredit the detailed factual narration madeBby the four judicial officers who were with him. Two of them –Judge ‘K’ and Judge ‘M’– were with Judge Loya from the timethat the three officers left Mumbai for the wedding at Nagpurand until Judge Loya died on 1 December 2014. They haveprovided trustworthy account of their schedule since they leftCMumbai. All of them travelled together, stayed together, visitedlocal judges at Nagpur, attended the wedding and remained inthe company of each other and their friends in the judicialfraternity. The fact that all the three judges stayed together isthe consistent account which emerges from the statements ofJudge ‘M’ and Judge ‘K’ which is corroborated by the statementDof Judge ‘B’. There is no basis for the Court to doubt the veracityof the natural account of the three judicial officers (Judge ‘K’,Judge ‘M’ and Judge ‘B’). The Court is requested to do so onthe ground that the entry in the register at Ravi Bhavan mentionsthe name of Judge ‘K’ but does not contain any reference to theEoccupancy of Judge ‘M’ or Judge Loya. Judge ‘K’ expresslystated that VIP suite was booked at Ravi Bhavan. One mustlean in favour of the version of the four judicial officers unlessstrong and indisputable circumstances are shown to doubt theircredibility. This would be in the larger public interest, to upholdthe independence and integrity of the institution. This isFcorroborated by photocopy of the occupancy register which hasbeen produced on record. All the three judicial officers wereinvited for the same event. If as friends and colleagues, theydecided to share one room, that cannot be regarded as anunnatural course of conduct. There is no reason to discard theGconsistent statements of the three judicial officers by engagingin surmises of the nature which are sought to be drawn by thepetitioners. Even the article that was published in the Caravanon 20 November 2017 records Judge Loya having had aconversation with his wife on the night of 30 November 2014 andinforming her of the fact that he was staying at Ravi BhavanH

together with the judges who had accompanied him to Nagpur.[Paras 53, 58] [80-D-F; 83-C-G]

1.8 The date of the death in the post-mortem is notmentioned as 7 December 2014, as submitted. The date of deathis clearly mentioned as 1 December 2014. The hospital bill ofRs.4290 at Meditrina is criticised on the ground that it contains,inter alia, neurological charges and charges for diet consultation.The issue in the present case is not whether the bill which wasprepared at Meditrina amounts to negligence. The charge fordietary consultation is erroneous. But that cannot be ground todiscredit the fact that Judge Loya was taken to Meditrina. Thathe was taken to Meditrina is clear from the documentary materialon the record and the consistent statements of all the four judicialofficers (Judge ‘K’, Judge ‘M’, Judge ‘B’ and Judge ‘R’). [Para55] [81-B-D]

1.9 The handing over of the body to Dr ‘PR’ cannot befaulted. The report of the discreet inquiry contains an elaboratereference to the fact that Dr ‘PR’ who was stationed at Nagpurwas contacted by relative in Aurangabad, requesting his helpon 1 December 2014. Dr ‘PR’ in his statement made factualexplanation about how he was contacted by his relative and askedto assist in the formalities for Judge Loya. The presence of Dr‘PR’ cannot be doubted, having regard to the contemporaneousdocumentary material including the accident summary. Thepresence of Dr ‘PR’ is established in the accidental deathsummary (AD 00/14) dated 1 December 2014, in the inquestreport, the receipt executed on 1 December 2014 by Sitabardipolice station on handing over the dead body, and in the accidentaldeath summary (AD 44/14) recorded by Sadar police station(within whose jurisdiction Ravi Bhavan falls) at 1600 hours on 1December 2014. In the face of the contemporaneous documentarymaterial, his statement recorded on 22 November 2017 cannotbe construed as something which casts doubt on the validity ofthe discreet inquiry. [Paras 56, 61] [81-D-F; 85-C-D]

1.10 That the family of Judge Loya did not travel to Nagpurafter they received intimation of his death, is fact. If the familydecided that the funeral should be held at the place to which hebelonged namely, Gategon near Latur, this was decision personal

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Ato the family. Judge Loya had died. If considered decision wastaken by the members of his family to proceed to Gategon insteadof travelling first to Nagpur and then traversing distance ofnearly 450 kilometres by road to the place where the funeral wasto be held, such decision has to be respected. Moreover, theallegation that the body was sent unaccompanied to Gategaon isBcontrary to what has emerged on the record. Judge ‘K’ in thecourse of his statement made reference to the fact that whilethe body was sent by an ambulance to the place where JudgeLoya originally belonged, two judicial officers from Nagpur werealso sent in another car to accompany the body. Judge ‘M’ in hisCstatement dated 24 November 2017 specifically noted that twolocal judges were deputed to accompany the dead body. Judge‘B’ has also stated that after the conclusion of the post-mortemat about 11 am, the dead body was sent in an ambulance to thenative place of Judge Loya and two judges accompanied the body.

There is no reason to doubt the statements of Judge ‘K’, andDJudge ‘M’. [Paras 57, 58] [82-A-E, G]

1.11 The issue as to whether Judge JTU (the earlier judge)could have been transferred has no bearing on the circumstancesin which Judge Loya died. The transfer of the earlier judge andthe appointment of Judge Loya in June 2014 has no bearing onEwhether Judge Loya’s death on 1 December 2014 was due tonatural causes. [Para 59] [84-C-E]

1.12 The petitioners relied upon the allegations againstthe then Chief Justice of the Bombay High Court, Shri Justice‘MS’ made by the father and sister of Judge Loya. The videoFrecording of an interview given to Caravan by the father and sisterof Judge Loya was also handed over to the Court on pen drive.The members of the family of Judge Loya have disassociatedthemselves from the statements attributed to them in the Caravanpublication. The video recording contains snippets of anGinterview. Evidently, only part of the interview has beenproduced. The allegations against the Chief Justice of the BombayHigh Court are hearsay. [Para 60] [84-E-G]

Application for cross-examination

2. Order IX of the Supreme Court Rules, 2013 deals withHAffidavits. Rule 1 empowers the court to allow facts to be proved

on affidavit for sufficient reason. However, if the court is of theview that the production of witness for cross-examination hasbeen desired by party bona fide and that such witness can beproduced, an order shall not be made authorising the evidenceof the witness to be given by affidavit. Under rule 2, discretionis vested in the court to order the attendance for cross-examination of the deponent of an affidavit. Under Order IX, adiscretion is vested in the court to allow cross-examination of aperson who has filed an affidavit. party to proceeding beforethis court –particularly proceeding under Article 32 – cannotdemand as of right the production of person, who has filed anaffidavit, for cross-examination. Whether cross-examinationshould be allowed has to be determined by the court having regardto the interests of justice. The petitioners have moved this courtin petition filed in the public interest. Their position is that of arelator who seeks to bring grievance to the attention of thecourt for the purpose of seeking court mandated inquiry. Noneof the persons whose cross-examination has been sought is awitness in the present proceedings. The Court is essentiallyrequired to consider as to whether case has been made out onbehalf of the petitioners (supported by the intervenors) fordirecting an inquiry into the circumstances leading to the deathof Judge Loya. As part of this process, the Court has to decide asto whether the inquiry which has been conducted by the State isvitiated and if circumstances have been brought to the notice ofthe court which cast reasonable suspicion about the eventsleading upto the death of Judge Loya. The petitioners cannotassert as of right that they should be allowed to cross-examine ahost of persons including the doctors and judicial officers. Bycasting unfounded aspersions on the judicial officers who hadaccompanied Judge Loya, the petitioners have revealed the realmotive of these proceedings which is to bring the judiciary intodisrepute on the basis of scurrilous allegations. There is no basisor justification to allow the request for cross-examination. Theapplication shall accordingly stand rejected. [Paras 63] [86-B, E-G; 88-C-F]

Intervention by Centre for Public Interest Litigation

3. The facts have emerged from the record which indicate

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Athat carefully orchestrated attempt has been made during thecourse of these hearings on behalf of the Centre for PublicInterest Litigation to create evidence to cast doubt on thecircumstances leading to the death of Judge Loya. In their practicebefore this court, Counsels are expected to assist the court witha sense of objectivity in aid of justice. compilation was filed,Binter alia, consisting of proceeding instituted under Section 482of the CrPC before the Nagpur Bench of the Bombay High Courtby five petitioners for quashing criminal case pending on thefile of the Joint Civil Judge, Junior Division and JMFC, Nagpur.The fourth petitioner in the proceeding was the Chief MinisterCof Maharashtra. The case relates to an incident which took placeon 7 June 1991 on account of the removal of certain constructionin Nagpur. The Division Bench of the High Court noted, thatthough the incident was of 1991, not much progress was made inthat case and with the passage of time, the dispute was amicably

settled between the parties who were residents of NagpurDlocalities. The criminal case was accordingly quashed. One israther surprised at the manner in which an insinuation was madeby producing the said order, which was passed in completelyunrelated proceedings. The insinuation was against the judgesof the Bombay High Court at Nagpur for having quashed criminalEcase in which the present Chief Minister was involved. HighCourt in quashing the proceedings placed reliance on decisionof Supreme Court and had noted that the dispute was admittedlyprivate in nature where no element of public law was involved.The attempt of the petitioners is to create prejudice and to malignthe dignity of the judges, particularly of Justice ‘BRG’. This isFanother instance in the course of the hearing of the present casewhere matter extraneous to the subject of the inquiry beforethe court was sought to be relied upon to somehow sensationalisethe case. Wholly unfounded aspersions were cast on the judgesof the Bombay High Court following decision which was takenGin the judicial capacity. This constitutes serious attempt toscandalise the court and obstruct the course of justice. [Paras68-70] [98-D-E, G-H; 99-A-C, G; 100-A-E]

Public Interest Litigation

4.1 Public Interest Litigation has developed as powerfulHtool to espouse the cause of the marginalised and oppressed.

Indeed, that was the foundation on which public interestjurisdiction was judicially recognised. Persons who were unableto seek access to the judicial process by reason of their poverty,ignorance or illiteracy are faced with deprivation of fundamentalhuman rights. Bonded labour and under trials (among others)belong to that category. The hallmark of public interest petitionis that citizen may approach the court to ventilate the grievanceof person or class of persons who are unable to pursue theirrights. Public interest litigation has been entertained by relaxingthe rules of standing. The essential aspect of the procedure isthat the person who moves the court has no personal interest inthe outcome of the proceedings apart from general standing asa citizen before the court. This ensures the objectivity of thosewho pursue the grievance before the court. Environmentaljurisprudence has developed around the rubric of public interestpetitions. Environmental concerns affect the present generationand the future. Principles such as the polluter pays and the publictrust doctrine have evolved during the adjudication of publicinterest petitions. Over time, public interest litigation has becomea powerful instrument to preserve the rule of law and to ensurethe accountability of and transparency within structures ofgovernance. Public interest litigation is in that sense valuableinstrument and jurisdictional tool to promote structural dueprocess. This jurisdiction is capable of being and has been brazenlymis-utilised by persons with personal agenda. At one end ofthat spectrum are those cases where public interest petitionsare motivated by desire to seek publicity. At the other end ofthe spectrum are petitions which have been instituted at thebehest of business or political rivals to settle scores behind thefacade of public interest litigation. The true face of the litigantbehind the façade is seldom unravelled. The misuse of publicinterest litigation is serious matter of concern for the judicialprocess. Both Supreme Court and the High Courts are floodedwith litigation and are burdened by arrears. Frivolous or motivatedpetitions, ostensibly invoking the public interest detract fromthe time and attention which courts must devote to genuinecauses. This court has long list of pending cases where thepersonal liberty of citizens is involved. Those who await trial orthe resolution of appeals against orders of conviction have

Alegitimate expectation of early justice. It is travesty of justicefor the resources of the legal system to be consumed by anavalanche of misdirected petitions purportedly filed in the publicinterest which, upon due scrutiny, are found to promote personal,business or political agenda. This has spawned an industry ofvested interests in litigation. There is grave danger that if thisBstate of affairs is allowed to continue, it would seriously denudethe efficacy of the judicial system by detracting from the ability ofthe court to devote its time and resources to cases whichlegitimately require attention. Worse still, such petitions pose agrave danger to the credibility of the judicial process. This hasCthe propensity of endangering the credibility of other institutionsand undermining public faith in democracy and the rule of law.This will happen when the agency of the court is utilised to settleextra-judicial scores. Business rivalries have to be resolved in acompetitive market for goods and services. Political rivalrieshave to be resolved in the great hall of democracy when theDelectorate votes its representatives in and out of office. Courtsresolve disputes about legal rights and entitlements. Courtsprotect the rule of law. There is danger that the judicial processwill be reduced to charade, if disputes beyond the ken of legalparameters occupy the judicial space. [Paras 71-73] [100-E-H;E101-A-D; G-H; 102-A-E]

4.2 The present case is indeed case in point. Repeatedly,the petitioners and intervenors have attempted to inform the courtthat they have no personal agenda and that they have institutedthese proceedings to protect judicial independence. An aura ofFgood faith has been sought to be created by submitting that thetrue purpose of seeking an inquiry into the circumstances relatingto the death of Judge Loya is to protect the district judiciary. Butas the submissions have evolved, it has become clear that thepetition is veiled attempt to launch frontal attack on theindependence of the judiciary and to dilute the credibility ofGjudicial institutions. Judicial review is potent weapon topreserve the rule of law. However, here there has been spateof scurrilous allegations. Absent any tittle of proof that they areconspirators in murder the Court must stand by the statementsof the judicial officers. The judges of the district judiciary areHvulnerable to wanton attacks on their independence. Supreme

Court would be failing in its duty if it were not to stand by them.Aspersions have been cast on the Administrative Committee ofthe Bombay High Court. Supreme Court has been called upon toissue notice of contempt to the judges on the Committee at therelevant time. Even the judges of this Bench hearing the presentproceedings, were not spared from this vituperative assault onthe judiciary. decision as to whether judge should hear caseis matter of conscience for the judge. There is absolutely noground or basis to recuse. Judges of the High Court hear intracourt appeals against orders of their own colleagues. Referencesare made to larger Benches when there are differences of view.Judges of the Supreme Court hear appeals arising from judgmentsrendered by judges of the High Courts in which they served,either as judges or on appointments as Chief Justices.Maintaining institutional civilities between or towards judges isdistinct from the fiercely independent role of the judge asadjudicator. On the well-settled parameters which hold the field,there is no reason for any member of the present Bench to recusefrom the hearing. While it is simple for judge faced with thesekinds of wanton attacks to withdraw from case, doing so wouldamount to an abdication of duty. There are higher values whichguide our the conduct of Judges. Serious attacks have been madeon the credibility of two judges of the Bombay High Court. Theconduct of the petitioners and the intervenors scandalizes theprocess of the court and prima facie constitutes criminal contempt.However, on dispassionate view of the matter, proceedings byway of criminal contempt are chosen not to be initiated if only notto give an impression that the litigants and the lawyers appearingfor them have been subjected to an unequal battle with theauthority of law. One hopes that the Bar of the nation is resilientto withstand such attempts on the judiciary. The judiciary mustcontinue to perform its duty even if it is not to be palatable tosome. The strength of the judicial process lies not in the fear of acoercive law of contempt. The credibility of the judicial processis based on its moral authority. It is with that firm belief that thejurisdiction in contempt has not been invoked. [Paras 74-76] [102-E-H; 103-A-C, E-H; 104-A-D]

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AConclusion

5. For the above reasons, there is absolutely no merit inthe writ petitions. There is no reason for the Court to doubt theclear and consistent statements of the four judicial officers. Thedocumentary material on the record indicates that the death ofBJudge Loya was due to natural causes. There is no ground forthe court to hold that there was reasonable suspicion about thecause or circumstances of death which would merit furtherinquiry. The conduct of the petitioners and the intervenors lackin bona fides and reveals misuse of judicial process. [Paras 77,78] [104-D-G]C

Transferred Case (Criminal) No.2 of 2018:

6. This Transferred case was heard together with theaccompanying group of cases (WP (C) No 19 of 2018, W P (C) No20 of 2018, W P (C) No 73 of 2018 and TC (Crl.) No.1 of 2018).DSince the case also raises certain other matters (other than thedeath of Judge Loya), the present case shall be remitted back tothe Nagpur Bench of the High Court of Judicature at Bombay.However, it is clarified that the circumstances relating to the deathof Judge Loya which have been dealt with by Supreme Court inthe judgment delivered today stands concluded and the HighECourt would be at liberty to deal with other issues raised in thepetition/case. [Para 81] [105-A-D]

Pedda Narayana v State of Andhra Pradesh (1975)4 SCC 153 : [1975] Suppl. SCR 84; AmarSingh v. Balwinder Singh (2003) 2 SCC 518 : [2003]F1 SCR 754; Radha Mohan Singh Alias Lal Saheb v Stateof U.P. (2006) 2 SCC 450 : [2006] 1 SCR 519; MadhuAlias Madhuranatha v State of Karnataka (2014) 12SCC 419 : [2013] 12 SCR 947; Manoj Kumar Sharmav State of Chhattisgarh (2016) 9 SCC 1: [2016] 7 SCRG154; Bimla Devi v Rajesh Singh (2016) 15 SCC 448:[2015] 10 SCR 1087; Yogesh Singh v Mahabeer Singh(2017) 11 SCC 195 : [2016] 7 SCR713; Bandhua MuktiMorcha v Union of India (1984) 3 SCC 161 : [1984] 2SCR 67; State of Uttaranchal v Balwant Singh Chaufal(2010) 3 SCC 402 : [2010] 1 SCR 678 – relied on.

Delhi Judicial Service Association, Tis Hazari Court,Delhi v State of Gujarat (1991) 4 SCC 406 : [1991] 3SCR 936; Rubabbuddin Sheikh v State of Gujarat(2010) 2 SCC 200 : [2010] 1 SCR 991; Narmada Bai vState of Gujarat (2011) 5 SCC 79 : [2011] 5 SCR 729;Central Bureau of Investigation v Amitbhai AnilChandra Shah (2012) 10 SCC 545 : [2012] 8 SCR945; Ravindra Pal Singh v. Santosh Kumar Jaiswal(2011) 4 SCC 746; K. Kochunni v State of Madras[1959] Supp 2 SCR 316; State of Haryana v BhajanLal (1992) Supp (1) SCC 335 : [1990] 3 Suppl. SCR259; Ashok Kumar Todi v Kishwar Jahan (2011) 3 SCC758 : [2011] 3 SCR 597; Zahira Habibullah Sheikh vState of Gujarat (2006) 3 SCC 374 : [2006] 2 SCR1081; Vineet Narain v Union of India (1996) 2 SCC199 : [1996] 1 SCR 1053; Mahendra Rai v. MithileshRai (1997) 10 SCC 605; Suresh Rai v State of BiharAIR 2000 SC 2207 : [2000] 2 SCR 796; Shukla Khaderv Nausher Gama (1975) 4 SCC 122; Khujji @ SurendraTiwari v State of Madhya Pradesh (1991) 3 SCC 627:[1991] 3 SCR 1; CS Rowjeev State of AP [1964] 6 SCR331; Sher Singh in Re (1997) 3 SCC 216 : [1997] 1SCR 654; Narinder Singh v State of Punjab (2014) 6SCC 466 – referred to.

Under Article 32 of the Constitution of India

WITH

W. P. (C) No. 20 of 2018 and W. P. (C) No.73 of 2018

T. C. (Crl.). No. 1 and T. C. (Crl.). No. 2 of 2018.

Mukul Rohatgi, P. V. Surendranath, Ms. Indira Jaising, Sr. Advs.,Varinder Kumar Sharma, Ms. Suman Rani, Ms. Ashima Mandla, Ms.GDeepali Dwivedi, Ms. Mandakini Singh, Jatin Sehgal, Ms. Devna Soni,Mohd. Shahid Hussain, Ms. Srishti Agnihotri, Ms. Anitha Shenoy, PrakashKumar Singh, Amir Nabi, Ms. Priyanka Gladson, Dr. Gunratan Sadvarte,Ranjit Kumar Sharma, Ranjit Kumar Sharma, Nishant R. Katneshwarkar,Ms. Resmitha R. Chandran, Ms. Lekha Sudhakran, Fuzail AhmadAyyubbi, Sanpreet Singh Ajmani, Kuldeep Rai, Anubhav, Ajay Sharma,

Ajit Sharma, Prashant Bhushan, Ms. Cheryl D’Souza, O. Kuttan,Ms. Amiy Shukla, Ms. Aastha Shan, Advs. for the appearing parties.

The Judgment of the Court was delivered by

Dr DY CHANDRACHUD, J.

The Context

1. In the batch of petitions before this Court, the petitioners seekan inquiry into the circumstances of the death of Brijgopal HarikishanLoya. He was judicial officer in the State of Maharashtra in the rankof district judge and died on 1 December 2014. Articles on his deathwere published in the issues of Caravan magazine dated 20 and 21November 2017. The first article was titled “A family breaks its silence :shocking details emerge in death of judge presiding over Sohrabuddintrial”.

2. Since the petitions are founded on the two articles published inCaravan, it would be necessary to extract them in this judgment:

(i) Caravan article dated 20 November 2017:

“On the morning of 1 December 2014, the family of 48-year-oldjudge Brijgopal Harkishan Loya, who was presiding over theCentral Bureau of Investigation special court in Mumbai, wasinformed that he had died in Nagpur, where he had travelled for acolleague’s daughter’s wedding. Loya had been hearing one ofthe most high-profile cases in the country, involving the allegedlystaged encounter killing of Sohrabuddin Sheikh in 2005. The primeaccused in the case was Amit Shah—Gujarat’s minister of statefor home at the time of Sohrabuddin’s killing, and the BharatiyaJanata Party’s national president at the time of Loya’s death. Themedia reported that the judge had died of heart attack.

Loya’s family did not speak to the media after his death. But inNovember 2016, Loya’s niece, Nupur Balaprasad Biyani,approached me while I was visiting Pune to say she had concernsabout the circumstances surrounding her uncle’s death. Followingthis, over several meetings between November 2016 andNovember 2017, I spoke to her mother, Anuradha Biyani, who isLoya’s sister and medical doctor in government service; anotherof Loya’s sisters, Sarita Mandhane; and Loya’s father, Harkishan.

I also tracked down and spoke to government servants in Nagpurwho witnessed the procedures followed with regard to the judge’sbody after his death, including the post-mortem.

From these accounts, deeply disturbing questions emerged aboutLoya’s death: questions about inconsistencies in the reportedaccount of the death; about the procedures followed after hisdeath; and about the condition of the judge’s body when it washanded over to the family. Though the family asked for an inquirycommission to probe Loya’s death, none was ever set up.

At 11 pm on 30 November 2014, from Nagpur, Loya phoned hiswife, Sharmila, using his mobile phone. Over around 40 minutes,he described to her his busy schedule through the day. Loya wasin Nagpur to attend the wedding of the daughter of fellow judge,Sapna Joshi. Initially he had not intended to go, but two of hisfellow judges had insisted that he accompany them. Loya told hiswife that he had attended the wedding, and later attended areception. He also enquired about his son, Anuj. He said that hewas staying at Ravi Bhavan, government guest house for VIPsin Nagpur’s Civil Lines locality, along with the judges he hadaccompanied to Nagpur.

It was the last call that Loya is known to have made, and the lastconversation that he is known to have had. His family receivedthe news of his death early the next morning.

“His wife in Mumbai, myself in Latur city and my daughters inDhule, Jalgaon and Aurangabad received calls,” early on themorning of 1 December 2014, Harkishan Loya, the judge’s father,told me when we first met, in November 2016, in his native villageof Gategaon, near Latur city. They were informed “that Brij passedaway in the night, that his post-mortem was over and his bodyhad been sent to our ancestral home in Gategaon, in Latur district,”he added. “I felt like an earthquake had shattered my life.”

The family was told that Loya had died of cardiac arrest. “Wewere told that he had chest pain, and so was taken to DandeHospital, private hospital in Nagpur, by auto rickshaw, wheresome medication was provided,” Harkishan said. Biyani, Loya’ssister, described Dande Hospital as “an obscure place,” and saidthat she “later learnt that the ECG”—the electrocardiography unit

at the facility—”was not working.” Later, Harkishan said, Loya“was shifted to Meditrina hospital”—another private hospital inthe city—”where he was declared dead on arrival.”

The Sohrabuddin case was the only one that Loya was hearing atthe time of his death, and was one of the most carefully watchedcases then underway in the country. In 2012, the Supreme Courthad ordered that the trial in the case be shifted from Gujarat toMaharashtra, stating that it was “convinced that in order topreserve the integrity of the trial it is necessary to shift it outsidethe State.” The Supreme Court had also ordered that the trial beheard by the same judge from start to finish. But, in violation ofthis order, JT Utpat, the judge who first heard the trial, wastransferred from the CBI special court in mid 2014, and replacedby Loya.

On 6 June 2014, Utpat had reprimanded Amit Shah for seekingexemption from appearing in court. After Shah failed to appearon the next date, 20 June, Utpat fixed hearing for 26 June. Thejudge was transferred on 25 June. On 31 October 2014, Loya,who had allowed Shah the exemption, asked why Shah had failedto appear in court despite being in Mumbai on that date. He setthe next date of hearing for 15 December.

Loya’s death on 1 December was reported only in few routinenews articles the next day, and did not attract significant mediaattention. The Indian Express, while reporting that Loya had“died of heart attack” noted, “Sources close to him said thatLoya had sound medical history.” The media attention picked upbriefly on 3 December, when MPs of the Trinamool Congressstaged protest outside the parliament, where the winter sessionwas under way, to demand an inquiry into Loya’s death. The nextday, Sohrabuddin’s brother, Rubabuddin, wrote letter to the CBI,expressing his shock at Loya’s death.

Nothing came of the MPs’ protests, or Rubabuddin’s letter. Nofollow-up stories appeared on the circumstances surroundingLoya’s death.

Over numerous conversations with Loya’s family members, Ipieced together chilling description of what Loya went throughwhile presiding over the Sohrabuddin trial, and of what happened

following his death. Biyani also gave me copies of diary shesaid she maintains regularly, which included entries from the dayspreceding and following her brother’s death. In these, she notedmany aspects of the incident that disturbed her. I also reached outto Loya’s wife and son, but they declined to speak, saying thatthey feared for their lives.

Biyani, who is based in Dhule, told me that she received call onthe morning of 1 December 2014 from someone identifying himselfas judge named Barde, who told her to travel to Gategaon, some30 kilometres from Latur, where Loya’s body was sent. The samecaller also informed Biyani and other members of the family thata post-mortem had been conducted on the body, and that the causeof death was heart attack.

Loya’s father normally resides in Gategaon, but was in Latur atthe time, at the house of one of his daughters. He, too, received aphone call, telling him his son’s body would be moved to Gategaon.“Ishwar Baheti, an RSS worker, had informed father that he wouldarrange for the body to reach Gategaon,” Biyani told me. “Nobodyknows why, how and when he came to know about the death ofBrij Loya.”

Sarita Mandhane, another of Loya’s sisters, who runs tuitioncentre in Aurangabad and was visiting Latur at the time, told methat she received call from Barde at around 5 am, informing herthat Loya had died. “He said that Brij has passed away in Nagpurand asked us to rush to Nagpur,” she said. She set out to pick upher nephew from hospital in Latur where he had earlier beenadmitted, but “just as we were leaving the hospital, this person,Ishwar Baheti, came there. I still don’t know how he came toknow that we were at Sarda Hospital.” According to Mandhane,Baheti said that he had been talking through the night with peoplein Nagpur, and insisted that there was no point in going to Nagpursince the body was being sent to Gategaon from there in anambulance. “He took us to his house, saying that he will coordinateeverything,” she said. (Questions that I sent to Baheti were stillunanswered at the time this story was published.)

It was night by the time Biyani reached Gategaon—the othersisters were already at the ancestral home by then. The body

was delivered at around 11.30 pm, after Biyani’s arrival, accordingto an entry in her diary. To the family’s shock, none of Loya’scolleagues had accompanied his body on the journey from Nagpur.The only person accompanying the body was the ambulance driver.“It was shocking,” Biyani said. “The two judges who had insistedthat he travel to Nagpur for the marriage had not accompaniedhim. Mr Barde, who informed the family of his death and hispost-mortem, had not accompanied him. This question haunts me:why was his body not accompanied by anyone?” One of her diaryentries reads, “He was CBI court judge, he was supposed tohave security and he deserved to be properly accompanied.”

Loya’s wife, Sharmila, and his daughter and son, Apurva and Anuj,travelled to Gategaon from Mumbai, accompanied by few judges.One of them “was constantly telling Anuj and the others not tospeak to anybody,” Biyani told me. “Anuj was of course sad andscared, but he maintained his poise and kept supporting his mother.”

Biyani recounted that when she saw the body, she felt thatsomething was amiss. “There were bloodstains on the neck at theback of the shirt,” she told me. She added that his “spectacleswere below the neck.” Mandhane told me that Loya’s spectacleswere “stuck under his body.”

diary entry by Biyani from the time reads, “There was blood onhis collar. His belt was twisted in the opposite direction, and thepant clip is broken. Even my uncle feels that this is suspicious.”Harkishan told me, “There were bloodstains on the clothes.”Mandhane said that she, too, saw “blood on the neck.” She saidthat “there was blood and an injury on his head … on the backside,” and that “his shirt had blood spots.” Harkishan said, “Hisshirt had blood on it from his left shoulder to his waist.”

But in the post-mortem report, issued by the Government MedicalCollege Hospital in Nagpur, under category described as“Condition of the clothes—whether wet with water, stained withblood or soiled with vomit or foecal matter,” handwritten entryreads, simply, “Dry.”

Biyani found the state of the body suspicious because, as doctor,“I know that blood does not come out during PM”—post-

mortem—”since the heart and lungs don’t function.” She saidthat she demanded second post-mortem, but that Loya’s gatheredfriends and colleagues “ discouraged us, telling us not to complicatethe issue more.”

The family was tense and scared, but was forced to carry outLoya’s funeral, Harkishan said.

Legal experts suggest that if Loya’s death was deemedsuspicious—the fact that post-mortem was ordered suggeststhat it was—a panchnama should have been prepared, and amedico-legal case should have been filed. “As per legal procedure,the police department is expected to collect and seal all the personalbelongings of the deceased, list them all in panchnama and handthem over to the family as they are,” Asim Sarode, senior Pune-based lawyer, told me. Biyani said the family was not given anycopy of panchnama.

Loya’s mobile phone was returned to the family, but, Biyani said,it was returned by Baheti, and not by the police. “We got hismobile on the third or fourth day,” she said. “I had asked for itimmediately. It had information about his calls and all thathappened. We would have known about it if we got it. And theSMSes. Just one or two days before this news, message hadcome which said, ‘Sir, stay safe from these people.’ That SMSwas on the phone. Everything was deleted from it.”

Biyani had numerous questions about the events of the night ofLoya’s death and the following morning. Among them was that ofhow and why Loya had been taken to hospital in an auto rickshaw,when the auto stand nearest to Ravi Bhavan is around twokilometres away from it. “There is no auto rickshaw stand nearRavi Bhavan, and people do not get auto rickshaws near RaviBhavan even during the day,” Biyani said. “How did the menaccompanying him manage to get an auto rickshaw at midnight?”

Other questions, too, remain unanswered. Why was the familynot informed when Loya was taken to hospital? Why were theynot informed as soon as he died? Why were they not asked forapproval of post-mortem, or informed that one was to beperformed, before the procedure was carried out? Who

recommended the post-mortem, and why? What was suspiciousabout Loya’s death to cause post-mortem to be recommended?What medication was administered to him at Dande Hospital?Was there not single vehicle in Ravi Bhavan—which regularlyhosts VIPs, including ministers, IAS and IPS officers and judges—available to ferry Loya to hospital? The winter session of theMaharashtra state assembly was to begin in Nagpur on 7December, and hundreds of officials usually arrive in the city wellin advance of assembly sessions for the preparations. Who werethe other VIPs staying in Ravi Bhavan on 30 November and 1December? “These all are very valid questions,” Sarode, thelawyer, said. “Why was the report of the medication administeredat Dande hospital not given to the family? Will the answers tothese questions create problems for someone?”

Questions such as these “still keep bothering the family, friendsand relatives,” Biyani said.

It added to their confusion that the judges who had insisted thatLoya travel to Nagpur did not visit the family for “one or one anda half months” after his death, she said. It was only then that thefamily heard their account of Loya’s last hours. According to Biyani,the two men told the family that Loya experienced chest pain ataround 12.30 am, that they then took him to Dande Hospital in anauto rickshaw, and that there, “he climbed the stairs himself andsome medication was administered. He was taken to Meditrinahospital where he was declared dead on arrival.”

Even after this, many questions were left unanswered. “We didtry to get the details of the treatment administered in DandeHospital, but the doctors and the staff there simply refused todivulge any details,” Biyani said.

I accessed the report of Loya’s post-mortem, conducted at theGovernment Medical College Hospital in Nagpur. The documentraises several questions of its own.

Every page of the post-mortem report is signed by the seniorpolice inspector of Sadar police station, Nagpur, and by someonewho signed with the phrase “maiyatachachulatbhau”—or thepaternal cousin brother of the deceased. This latter person is

ABC

supposed to have received the body after the post-mortemexamination. “I do not have any brother or paternal cousin brotherin Nagpur,” Loya’s father said. “Who signed on the report isanother unanswered question.”

Further, the report states that the corpse was sent from MeditrinaHospital to the Government Medical College Hospital by theSitabardi police station, Nagpur, and that it was brought in by apolice constable named Pankaj, of Sitabardi police station, whosebadge number is 6238. It notes that the body was brought in at10.50 am on 1 December 2014, that the post-mortem began at10.55 am, and that it was over at 11.55 am.

The report also noted that, as per the police, Loya “died on 1/12/14 at 0615 hours” after experiencing “chest pains at 0400 am.” Itstated, “He was brought to Dande hospital first and then shiftedto Meditrina hospital where he was declared to be in deadcondition.”

The time of death cited in the report—6.15 am—appearsincongruous, since, according to Loya’s family members, theybegan receiving calls about his death from 5 am onwards. Further,during my investigation, two sources in Nagpur’s GovernmentMedical College and Sitabardi police station told me they had beeninformed of Loya’s death by midnight, and had personally seenthe dead body during the night. They also said that the post-mortemwas done shortly after midnight. Apart from the calls that thefamily received, the sources’ accounts also raise serious questionsabout the post-mortem report’s claim that the time of death was6.15 am.

The source at the medical college, who was privy to the post-mortem examination, also told me that he knew that there hadbeen instructions from superiors to “cut up the body as if the PMwas done and stitch it up.”

The report mentions “coronary artery insufficiency” as the probablecause of death. According to the renowned Mumbai-basedcardiologist Hasmukh Ravat, “Usually old age, family history,smoking, high cholesterol, high blood pressure, obesity, diabetesare the causes for such coronary artery insufficiency.” Biyani

pointed out that none of these were applicable to her brother.“Brij was 48,” she said. “Our parents are 85 and 80 years old, andare healthy with no cardiac history. He was always teetotaller,played table tennis for two hours day for years, had no diabetesor blood pressure.”

Biyani told me that she found the official medical explanation forher brother’s death hard to believe. “I am doctor myself, andBrij used to consult me even for minor complaints such as acidityor cough,” she said. “He had no cardiac history and no one fromour family has it.”

(ii) Caravan article dated 21 November 2017:

“Brijgopal Harkishan Loya, the judge presiding over the CBIspecial court in Mumbai, died sometime between the night of 30November and the early morning of 1 December 2014, while on atrip to Nagpur. At the time of his death, he was hearing theSohrabuddin case, in which the prime accused was the BharatiyaJanata Party president Amit Shah. The media reported at the timethat Loya had died of heart attack. But my investigationsbetweenNovember 2016 and November 2017 raised disturbing questionsabout the circumstances surrounding Loya’s death—includingquestions regarding the condition of his body when it was handedover to his family.

Among those I spoke to was one of Loya’s sisters, AnuradhaBiyani, medical doctor based in Dhule, Maharashtra. Biyanimade an explosive claim to me: Loya, she said, confided to herthat Mohit Shah, then the chief justice of the Bombay High Court,had offered him bribe of Rs 100 crore in return for favourablejudgment. She said Loya had told her this some weeks before hedied, when the family gathered for Diwali at their ancestral homein Gategaon. Loya’s father Harkishan also told me that his sonhad told him he had offers to deliver favourable judgment inexchange for money and house in Mumbai.

Brijgopal Harkishan Loya was appointed to the special CBI courtin June 2014, after his predecessor, JT Utpat, was transferredwithin weeks of reprimanding Amit Shah for seeking an exemptionfrom appearing in court. According to February 2015

report in Outlook, “During the CBI court’s hearings that Utpatpresided over for this one year, or even after, court records suggestAmit Shah had never turned up even once—including on the finalday of discharge. Shah’s counsel apparently made oral submissionsfor exempting him from personal appearance on grounds rangingfrom him being ‘a diabetic and hence unable to move’ to the moreblase: ‘he is busy in Delhi.’”

The Outlook report continued: “On June 6, 2014, Utpat had madehis displeasure known to Shah’s counsel and, while allowingexemption for that day, ordered Shah’s presence on June 20. Buthe didn’t show up again. According to media reports, Utpat toldShah’s counsel, ‘Every time you are seeking exemption withoutgiving any reason.’” Utpat, the story noted, “fixed the next hearingfor June 26. But on 25th, he was transferred to Pune.” This wasin violation of September 2012 Supreme Court order, that theSohrabuddin trial “should be conducted from beginning to end bythe same officer.”

Loya had at first appeared well disposed towards Shah’s requestthat he be exempted from personally appearing in court.As Outlook noted, “Utpat’s successor Loya was indulgent,waiving Shah’s personal appearance on each date.” But thisapparent indulgence may just have been matter of procedure.According to the Outlook story, “significantly, one of his lastnotings stated that Shah was being exempted from personalappearance ‘till the framing of charges.’ Loya had clearly notharboured the thought of dropping charges against Shah even whenhe appeared to be gentle on him.” According to the lawyer MihirDesai, who represented Sohrabuddin’s brother Rubabuddin—thecomplainant in the case—Loya was keen on scrutinising the entirechargesheet, which ran to more than 10,000 pages, and onexamining the evidence and witnesses carefully. “The case wassensitive and important, and it was going to create and decide thereputation of Mr Loya as judge,” Desai said. “But the pressurewas certainly mounting.”

Nupur Balaprasad Biyani, niece of Loya’s who stayed with hisfamily in Mumbai while studying in the city, told me about theextent of the pressure she witnessed her uncle facing. “When he

was coming from the court, he was like, ‘bahut tension hai,’”she said. “Stress. It’s very big case. How to deal with it. Everyoneis involved with it.” Nupur said it was question of “politicalvalues.”

Desai told me, “The courtroom always used to be extremely tense.The defence lawyers used to insist on discharging Amit Shah ofall the charges, while we were demanding for the transcripts ofthe calls, submitted as evidence by the CBI, to be provided inEnglish.” He pointed out that neither Loya nor the complainantunderstood Gujarati, the language on the tapes.

But the defence lawyers, Desai said, repeatedly brushed asidethe demands for transcripts in English, and insisted that Shah’sdischarge petition be heard. Desai added that his junior lawyersoften noticed unknown, suspicious-looking people inside thecourtroom, whispering and staring at the complainant’s lawyersin an intimidating manner.

Desai recounted that during hearing on 31 October, Loya askedwhy Shah was absent. His lawyers pointed out that he had beenexempted from appearance by Loya himself. Loya remarked thatthe exemption applied only when Shah was not in the state. Thatday, he said, Shah was in Mumbai to attend the swearing-in of thenew BJP-led government in Maharashtra, and was only 1.5kilometres away from the court. He instructed Shah’s counsel toensure his appearance when he was in the state, and set the nexthearing for 15 December.

Anuradha Biyani told me that Loya confided in her that MohitShah, who served as the chief justice of the Bombay High Courtbetween June 2010 and September 2015, offered Loya bribe ofRs 100 crore for favourable judgment. According to her, MohitShah “would call him late at night to meet in civil dress and pressurehim to issue the judgment as soon as possible and to ensure that itis positive judgment.” According to Biyani, “My brother wasoffered bribe of 100 crore in return for favourable judgment.Mohit Shah, the chief justice, made the offer himself.”

She added that Mohit Shah told her brother that if “the judgmentis delivered before 30 December, it won’t be under focus at all

because at the same time, there was going to be another explosivestory which would ensure that people would not take notice ofthis.”

Loya’s father Harkishan also told me that his son had confided inhim about bribe offers. “Yes, he was offered money,” Harkishansaid. “Do you want house in Mumbai, how much land do youwant, how much money do you want, he used to tell us this. Thiswas an offer.” But, he added, his son refused to succumb to theoffers. “He told me I am going to turn in my resignation or get atransfer,” Harkishan said. “I will move to my village and dofarming.”

I contacted Mohit Shah and Amit Shah for their responses to thefamily’s claims. At the time this story was published, they had notresponded. The story will be updated if and when they reply.

After Loya’s death, MB Gosavi was appointed to the Sohrabuddincase. Gosavi began hearing the case on 15 December 2014. “Heheard the defence lawyers argue for three days to discharge AmitShah of all the charges, while the CBI, the prosecuting agency,argued for 15 minutes,” Mihir Desai said. “He concluded thehearing on 17 December and reserved his order.”

On 30 December, around one month after Loya’s death, Gosaviupheld the defence’s argument that the CBI had political motivesfor implicating the accused. With that, he discharged Amit Shah.

The same day, news of MS Dhoni’s retirement from test cricketdominated television screens across the country. As Biyanirecounted, “There was just ticker at the bottom which said,‘Amit Shah not guilty. Amit Shah not guilty.’”

Mohit Shah visited the grieving family only around two and halfmonths after Loya’s death. From Loya’s family, I obtained copyof letter that they said Anuj, Loya’s son, wrote to his family onthe day of the then chief justice’s visit. It is dated 18 February2015—80 days after Loya’s death. Anuj wrote, “I fear that thesepoliticians can harm any person from my family and I am also notpowerful enough to fight with them.” He also wrote, referring toMohit Shah, “I asked him to set up an enquiry commission fordad’s death. I fear that to stop us from doing anything againstthem, they can harm anyone of our family members. There is

threat to our lives.”

Anuj wrote twice in the letter that “if anything happens to me ormy family, chief justice Mohit Shah and others involved in theconspiracy will be responsible.”

When I met him in November 2016, Loya’s father Harkishan said,“I am 85 and I am not scared of death now. I want justice too, butI am extremely scared for the life of my daughters and grandchildren.” He had tears in his eyes as he spoke, and his gaze wentoften to the garlanded photograph of Loya hanging on the wall ofthe ancestral home.”

Petitions

3. Tehseen Poonawalla filed petition under Article 32 of theConstitution before this Court on 11 December 2017. He informs theCourt that the proceedings have been initiated “bona fide for the welfareand benefit of the society as whole..with no ulterior or mala fide motive”.He has averred that the petition was instituted for the “safety and securityof the public and that of public servants” who “may not be aware oftheir legal rights” or possess the means to approach this Court. Besidesthe above writ petition, this Court has before it two other writ petitionsunder Article 32 on the same issue, one by Jayshri Laxmanrao Patil[1 ]andanother by Bandhuraj Sambhaji Lone[2]. Each of these petitioners hasmade similar averments, stating that the proceedings have been initiatedfor the “welfare of society” without any personal interest. Two writpetitions[3 ]were filed in the High Court of Judicature at Bombay : BombayLawyers’ Association instituted the proceedings on 4 January 2018 andSuryakant (alias Suraj), on 27 November 2017. The relief sought in thebatch of cases instituted before the Bombay High Court is similar towhat is sought before this Court. All the petitions are essentially basedon the articles which have been published in the Caravan on 20 and 21November 2017. Other media publications, both print and online carriednews reports emanating from the Caravan articles.Among them are theIndian Express, Quint, Wire and Scroll.

Procedural directions

4. On 16 January 2018, two judge Bench of this Court issued

1Writ Petition (C)No 73 of 2018

2Writ Petition (C)No 20 of 2018

3Public Interest Litigation (Crl) No 2 of 2018 and Public Interest Litigation(Crl) No 1 of 2018

DEF

Athe following directions in the Article 32 proceedings:

“Let the documents be placed on record within seven days and ifit is considered appropriate copies be furnished to the petitioners.Put up before the appropriate Bench.”

In view of the direction to put up the case before the appropriate Bench,Bproceedings were mentioned before the learned Chief Justice on 19January 2018 and were directed to be listed on 22 January 2018 “beforethe appropriate Bench as per roster”. On 22 January 2018 the State ofMaharashtra filed documents in sealed cover of which copies weremade available to counsel for the petitioners. The documents were takenCon the record. Mr Dushyant Dave and Ms Indira Jaising, learned seniorcounsel indicated that they would be filing applications for intervention.This Court permitted them to do so. This Court was informed by counselfor the intervenors that they would be placing on record some documentswhich may have bearing on the case. Mr Harish Salve, learned seniorcounsel for the State of Maharashtra stated before the Court that thereDwould be no objection to supply any other official documents in sealedcover of which list may be submitted by assisting counsel for the parties.This Court was apprised of the pendency of two writ petitions beforethe Bombay High Court, one at the principal seat and the other at theNagpur Bench. Since the issue raised in the writ petitions before theEBombay High Court had the same subject matter, those petitions weretransferred to this Court, to be heard along with the petitions under Article32. Mr Dave, learned senior counsel appearing on behalf of the BombayLawyers’ Association agreed to this course of action. The order of thisCourt dated 22 January 2018 also records the agreement of Ms Jaisingto the transfer of the writ petitions from the Bombay High Court.FSubsequently, Ms Jaising has clarified that since she is appearing for anintervenor and not for the petitioners in any of those writ petitions, herconsent should not be recorded. We clarify the order dated 22 January2018 to the effect that it was Mr Dave who has consented to the transferof proceedings from the Bombay High Court.G5. Following the order of transfer, the entire batch of casestogether with several applications for intervention have been heard.Hearings in this batch of cases have taken place on 2 February 2018, 5February 2018, 9 February 2018, 12 February 2018, 19 February 2018, 5March 2018, 8 March 2018, 9 March 2018 and 16 March 2018.

6. We have heard Mr Dushyant Dave, Ms Indira Jaising, Mr VGiri, Mr Pallav Shishodia, Mr PV Surendranath, learned senior counseland Mr Kuldip Rai and Mr Prashant Bhushan on behalf of the petitionersand the intervenors. Mr Mukul Rohtagi and Mr Harish Salve, learnedsenior counsel have appeared for the respondent State.

7. In view of the nature of the issue which has been raised in theproceedings, we have permitted learned counsel appearing on behalf ofthe petitioners as well as the intervenors to rely upon such documentarymaterial as would enable them to advance their submissions withoutbeing bound by technicalities of procedure. In order to analyse the factsas they emerge before the Court, it is necessary to construct the sequenceof events from the material before the Court.

Sequence of events

8. Shri Brijgopal Harkishan Loya (‘Judge Loya’) was presidingover the CBI Special Court in Mumbai. The criminal trial arising out ofthe encounter killings of Sohrabuddin Sheikh was assigned to his court.Among the accused in the case was Amit Shah, the “national Presidentof the Bharatiya Janata Party”. On 29 November 2014 Judge Loyatravelled on an overnight train from Mumbai to Nagpur together withtwo other judicial officers, Shri Shrikant Kulkarni (“Judge Kulkarni”)and Shri S M Modak(“Judge Modak”) to attend the wedding in the familyof another judicial officer, Smt Swapna Joshi who was then MemberSecretary of the Maharashtra State Legal Services Authority. JudgeKulkarni was at the material time working as Registrar (Judicial-I) onthe Appellate side of the Bombay High Court and Judge Modak was thePrincipal District Judge at Alibag. Judge Loya was Judge in the CityCivil and Sessions Court at Mumbai. On 30 November 2014, Judge Loyaand his colleagues attended the wedding reception. According to hiscolleagues, all of them stayed at Ravi Bhavan, government guest houseat Nagpur. This has been contentious issue. In the early hours of 1December 2014 Judge Loya is stated to have complained of chest pain.He was initially taken to Dande hospital, in close proximity of RaviBhavan. From there he was referred to cardiac care facility. Hiscolleagues are stated to have accompanied him to Meditrina hospital.Judge Loya died before he was admitted to Meditrina, since he wasstated to have been ‘brought dead’. There was an inquest panchnamafollowed by post-mortem. After the formalities were completed, thebody was taken to Gategaon, his village near Latur, nearly 450 kilometres

FGH

Aaway where the cremation took place.

Issues

9. The issue before the Court is whether the death of Judge Loyawas due to natural causes, or as alleged by the petitioners (relying on thecontents of news items or material which has come before theBCourt),there are circumstances which raise reasonable suspicion aboutan unnatural death, warranting an inquiry or investigation on the directionsof this Court. Moreover, should the contents of news article by itselfbe made the basis to lodge an FIR under Section 154 of the Code ofCriminal Procedure 1973.

CB The Discreet Enquiry

10. Following the publication of the Caravan articles, the PrincipalSecretary (Special) in the Home Department of the state governmentdirected discreet inquiry by the Commissioner of the State IntelligenceDepartment. Such an inquiry was initiated by Shri Sanjay Barve, DirectorDGeneral and Commissioner in the State Intelligence Department. By acommunication dated 23 November 2017 addressed to the Chief Justiceof the Bombay High Court, he indicated that:

“2. Following judicial officers had accompanied Mr. Loya to thehospital on 01/12/2014.

i. Mr Shrikant Kulkarni, Member Secretary Maharashtra State Legal Services Authority.

ii. Mr Modak – Principal District Judge, Pune

iii. Mr Barde – District Judge, City Civil Court, Mumbai

Fiv. Mr R RRathi – District Judge, Baramati.

Similarly, Hon’ble Justice Bhushan Gawai and Hon’ble JusticeSB Shukre has also visited Meditrina Hospital, Nagpur afterlearning about the sad demise of the aforesaid judicial officeron 01/12/2014.”

The Commissioner sought the permission of the Chief Justice “to recordthe say of the above judicial officers” either in the form of statementor letter elaborating the sequence of events and the facts known tothem in the matter. The Registrar General of the High Court, by letterdated 23 November 2017, responded to the request and stated that the

Chief Justice had granted the permission “to record the say” of the fourjudicial officers – Judge Shrikant Kulkarni, Judge Modak, Judge Bardeand Judge RR Rathi. The report of the discreet inquiry dated 28 November2017 was submitted to the Additional Chief Secretary (Home). Thecontents of the report are summarised below:

i. Judge Loya was in Nagpur to attend the wedding in the familyof colleague on 30 November 2014 along with his colleagues,Judge Kulkarni and Judge Modak, both in the rank of PrincipalDistrict Judges;

ii. The three judicial officers stayed at Ravi Bhavan;

iii. In the early hours of 1 December 2014 Judge Loya complainedof chest pain. Judge Shrikant Kulkarni called Judge Bardewho was posted at Nagpur. Judge Barde informed Judge RRRathi, Deputy Registrar of the Bench of the High Court atNagpur and both of them reached Ravi Bhavan. In themeantime Judge Kulkarni had also intimated anothercolleague, Judge Waikar about Judge Loya’s ill health between0400 hours and 0415 hours;

iv. Judge Loya was taken to Dande Hospital in the vehicle ofJudge Barde. Judge Kulkarni, Judge Modak and Judge Rathiaccompanied them to the hospital. After initial examination,he was advised to be taken to cardiac centre;

v. The report in the Caravan article that Judge Loya was takento Dande hospital in an auto rikshaw is incorrect;

vi. The Deputy Registrar Judge RR Rathi in the meantime calledhis relative, Dr Pankaj Harkut, cardiologist who advisedhim to bring the patient to Meditrina hospital. Following thisconversation at about 0500 hours, the accompanying judgestook Judge Loya to Meditrina hospital;

vii. Judge Loya was shifted to Meditrina hospital, where he wasadmitted by Judge Shrikant Kulkarni. He was providedemergency treatment at Meditrina hospital but was declareddead at 0615 hours on 1 December 2014;

viii. The ‘progress notes’ of the doctor at Meditrina hospital indicatethat post-mortem was advised. This sets at rest the doubts

raised in the Caravan article about who had recommendedthe post-mortem;

ix. Meditrina hospital furnished information of medico-legalcase to Sitabardi police station, of the patient being broughtdead. The police station at Sitabardi registered AD 00/2014under Section 174 of the Code of Criminal Procedure 1973.This was subsequently transferred to Sadar police stationwhere AD 44/2014 was registered at 1600 hours, on 1December 2014. The ADs were registered on the informationof one Dr Prashant Rathi;

x. Dr Prashant Rathi was informed about Judge Loya’s illnessby his relative (Rukmesh Jakhotiya) from Aurangabad whorequested him to help in attending to Judge Loya;

xi. The Caravan article raised certain doubts about the role ofone Ishwar Baheti. In that context, the report of theCommissioner contains the following explanation:

“3.8 Mr Ishwar Govindlal Baheti, who runs medical pharmacyat Latur was an old friend of Mr Loya for over 35 years. IshwarGovindlal Baheti’s eldest brother, Dr Hansraj Govindlal Baheti[r/o Latur] got call in the wee hours of 01-12-2014 informinghim about Mr Loya’s health. On learning about his friend’scondition from his brother [Dr Hansraj], Ishwar GovindlalBaheti called up his relative in Aurangabad, Mr RukmeshJakhotiya, who in turn requested Dr Prashant Rathi of Nagpurto provide assistance and care to Mr Loya. Mr IshwarGovindlal Baheti also called up another cousin of Dr Loya, MrOm Bhutada and got in touch with the Latur-based relativesof Mr Loya. During verification, Mr Ishwar Govindlal Baheticlaimed that he was worker and well-wisher [“karyakarta &shubh-chintak”] of late Mr Vilasraoji Deskhmukh and that hewas not connected with RSS. Late Mr Brijgopal Loya’s father,Shri Harkishan Ramchandra Loya, confirmed to theundersigned that Ishwar Baheti was close friend of his sonand that he was ‘like brother’ to him. Mr Loya’s son, Anuj,has stated as follows: “my uncle, Mr Iswar Baheti had organizeda big function in memory of my father on his first deathanniversary according to panchang on 06-12-2015 at Gategaon,

Latur where everyone from my family including my grandfatherHarkishanji and my aunty Dr Anuradha were present.” Myverification revealed that Loya family held Mr Ishwar Bahetiin very high esteem and treated him as member of the family.

3.8.1 Incidentally, another gentleman by name Ishwar-prasadBajranglal Baheti, @ 60 confirmed during the verification thathe used to be active in RSS long ago and that presently, heruns shop called Radhey Shubhmangal Stores & Handicraftsin Latur. He also confirmed that he did not know Mr Loya andthat he had not made any calls in connection with Mr Loya’shealth to anybody.

3.8.2 One more person by name – Ishwarlal Jawaharlal Bahetilives in Nilanga, District Latur where he runs shop calledAmrit General Stores. During verification, he also confirmedthat he did not know Mr Loya.

3.8.3 The above details dispel the doubts raised in the Caravanreport about the role of Mr Ishwar Baheti.”

xii. Judge Barde and Judge Modak informed Judge Loya’s relativesabout his ill-health and death. The Principal Secretary to theChief Justice and other Judges at the Nagpur Bench werealso informed. Chief Justice Mohit Shah and Justices BhushanGavai, Justice SB Shukre and Justice PR Bora visitedMeditrina hospital around 0700 hours on 1 December 2014.The Chief Justice directed the officials present there to makenecessary administrative arrangements;

xiii.The entire sequence of events was narrated in the statementsfiled by the four judicial officers – Judge Kulkarni, JudgeModak, Judge Barde and Judge RR Rathi;

xiv.An inquest was conducted between 1000 hours and 1030 hourson 1 December 2014. The post-mortem was conductedbetween 1055 hours and 1155 hours on 1 December 2014.The post-mortem report indicates the absence of any bodilyinjury and notes the cause of death as “coronary arteryinsufficiency”. The report of the Regional Forensic ScienceLaboratory indicates that no traces of poison have been found;

xv. The factual position indicates that Judge Loya suffered heart

Aattack in the early hours of 1 December 2014 and died inconsequence. His body was sent to village Gategaon in Laturin an ambulance. Two judicial magistrates from Nagpur,MrYogesh Rahangdale and Mr Swayam Chopda were deputedby Judge Sonawane, Principal District Judge, Nagpur toaccompany the body. The statement in the Caravan articleBthat the body was not accompanied by anyone is incorrect;

xvi. Intimation of the death was furnished to the members of thefamily of Judge Loya and to his colleagues who resided atHaji Ali, Mumbai by Judge Barde and Judge Modak in theearly hours of 1 December 2014;

xvii.The claim in the Caravan article that sources in theGovernment Medical College and Sitabardi police station hadseen the body during the course of the night was devoid ofsubstance;

xviii.The reference in the Caravan article to blood-stains on theneck of the deceased is contrary to the post-mortem reportwhich stated that there were no external injuries on the body;

xix. The members of Judge Loya’s family including his son, wife,father and sister have not supported the insinuations in theECaravan article; and

xx. The second article in Caravan dated 21 November 2017contains unfounded insinuations against the former Chief Justiceof the Bombay High Court Shri Justice Mohit Shah. Theyhave been levelled on the basis of an array of hearsay versions.The report concludes by stating that the article published inFthe Caravan “made several unsubstantiated claims and isreplete with falsehoods”.

The conclusion of the discreet inquiry is that Judge Loya suffered aheart attack in the presence of his colleagues belonging to the judicialfraternity. They had made all possible efforts to provide medical assistanceGto save him. Judge Loya died as result of natural causes.

Submissions:

I The petitioners and intervenors

Mr Dushyant Dave

11. Mr Dushyant Dave, learned senior counsel appearing on behalfof the Bombay Lawyers’ Association has premised his submissions onthe foundation that the cause which he represents raises “serious questionsof general importance as to (the) independence of judiciary” and theprotection of the subordinate judiciary against threats or attacks. MrDave emphasised the role espoused by the petitioners, by adverting tothe decision of this Court in Delhi Judicial Service Association, TisHazari Court, Delhi v State of Gujarat[4 ]in which this Court regardedan assault on judicial officer as something which affected judicialauthority as well as the administration of justice in the entire country. Animpassioned plea has been made that the Court should have regard tothe background of this case, originating in the judgment in RubabbuddinSheikh v State of Gujarat[5].While transferring the investigation to theCBI, this Court observed:

“..in order to make sure that justice is not only done, but also isseen to be done and considering the involvement of the Statepolice authorities and particularly the high officials of the State ofGujarat, we are compelled even at this stage to direct the CBIAuthorities to investigate into the matter.”

After this court directed CBI investigation into the killings of Sohrabuddinand his wife Kauserbi, charge-sheet was submitted against numberof accused including Amit Shah, the then Minister of State for Home inthe State of Gujarat. Subsequently, in Narmada Bai v State of Gujarat[6]this Court directed separate investigation by the CBI into the killing ofTulsiram Prajapai, which, it has been submitted, was part of theconspiracy to kill Sohrabuddin and Kauserbi. In issuing these directions,this Court held thus:“It is not in dispute that it is the age-old maxim that justice mustnot only be done but must be seen to be done. The fact that in thecase of murder of an associate of Tulsiram Prajapati, senior policeofficials and senior politician were accused may shake theconfidence of public in investigation conducted by the State police.If the majesty of the rule of law is to be upheld and if it is to be

4 (1991) 4 SCC 406

5(2010) 2 SCC 200

6(2011) 5 SCC 79

Aensured that the guilty are punished in accordance with lawnotwithstanding their status and authority which they might haveenjoyed, it is desirable to entrust the investigation to CBI.”

Subsequently, in Central Bureau of Investigationv Amitbhai AnilChandra Shah[7],while upholding the grant of bail by the Gujarat HighBCourt, this Court ordered the transfer of the criminal case outside theState of Gujarat to the State of Maharashtra. The following directionswere issued:

“In another decision in Ravindra Pal Singh v Santosh KumarJaiswal[8], this Court directed for transfer of the case outside theCState because some of the accused in case of fake encounterwere policemen. The case in hand has far more stronger reasonsfor being transferred outside the State. We, accordingly, directfor the transfer of Special Case No.5 of 2010 pending in the Courtof the Additional Chief Metropolitan Magistrate, CBI, CourtroomNo 2, Mirzapur, Ahmedabad titled CBI v D. G. Vanzara to theDCourt of CBI, Bombay. The Registrar General of the GujaratHigh Court is directed to collect the entire record of the casefrom the Court of the Additional Chief Metropolitan Magistrate,CBI, Room No 2, Mirzapur, Ahmedabad and to transmit it to theRegistry of the Bombay High Court from where it would be sentEto the CBI Court as may be decided by the AdministrativeCommittee of the High Court. The Administrative Committeewould assign the case to court where the trial may be concludedjudiciously, in accordance with law, and without any delay. TheAdministrative Committee would also ensure that the trial shouldbe conducted from beginning to end by the same officer.”F

Mr Dave submitted that an application for discharge under Section 227of the Code of Criminal Procedure was moved by Amit Shah in 2013.His application for exemption from personal appearance was declinedby Judge JT Utpat who was nominated by the Administrative Committeeof the Bombay High Court in pursuance of the directions extracted above.GBefore the proceedings could be taken up, it was alleged, Judge Utpatwas transferred on 25 June 2014 by the Administrative Committee ofthe Bombay High Court contrary to the directions contained in thejudgment of thisCourt dated 27 September 2012. Following the transfer,7(2012) 10 SCC 5458(2011) 4 SCC 746H

Judge Loya was appointed as CBI judge in which assignment hecontinued until his death on 1 December 2014. Mr Dave urges that thedecision to transfer Judge Utpat, without seeking appropriate orders ofthis Court “raises serious questions, if not doubts, about the functioningof the Administrative Committee of the High Court”. After Judge Loyadied on 1 December 2014, new appointment of Judge MB Gosavi wasinitiated. The discharge application was allowed on 30 December 2014.Mr Dave has categorically stated before the Court that the legality ofthe order of discharge is not being questioned in the present proceedings.CBI, it has been submitted, did not assail the order of discharge thoughit subsequently filed appeals against the discharge of some police officers.Rubabuddin, the original petitioner also challenged the order of dischargebut withdrew the application for condonation of delay thus rendering thecriminal revision application as not maintainable before the Bombay HighCourt.

12. Based on this background, Mr Dave has submitted that therespondents should be directed to file “appropriate affidavits” on oathhaving regard to the fact that the jurisdiction under Article 32 isextraordinary in its nature and scope.

13. Mr Dave has submitted that the discreet inquiry and reportprepared by the Commissioner of the State Intelligence Department isan attempt to stall an independent investigation. It is, according to him,unusual for the state government to order discreet inquiry on the basisof report published in news periodical. Highlighting the sequence ofevents, it is urged that on 23 November 2017, the state governmentdirected the Commissioner to conduct discreet verification and on thesame day, letter was addressed to the Chief Justice of the BombayHigh Court seeking to record the say of the four judicial officers whohad accompanied Judge Loya to the hospital on 1 December 2014. TheHigh Court of Bombay communicated the approval of the Chief Justiceon the same day. The judicial officers submitted their statements withina day. The report was submitted by the Commissioner on 28 November2017, within five days. There is, in his submission, sense of alacritywhich is not ordinarily found amongst public functionaries.

14. The documents and statements which form part of the reportof the Commissioner of State Intelligence have been called into questionon the basis of the following submissions:

“(i) The death investigation report prepared under Section 174 ofthe Code of Criminal Procedure Code by PSI RK Mundhe of theSitabardi police station, Nagpur city dated 1 December 2014records that the body of the deceased was identified by DrPrashant Rathi and does not refer to the presence of any otherindividual, including the judicial officers;

(ii) The case papers of Meditrina hospital record that the patientwas brought dead to the hospital and was admitted by JudgeShrikant Kulkarni who disclosed his relationship with thedeceased as friend. The progress notes of the doctor recordedthat the accompanying person had indicated that the patient hadsuffered chest pain. The bill prepared by Meditrina hospitalinexplicably contains charges for non-invasive lab, neurosurgery,diet consultationand non-medical expenses(the total bill being inthe amount of Rs 4290);

(iii) The post-mortem report describes the shirt and jeans worn bythe deceased. It has been urged that if Judge Loya had suffereda heart attack in his sleep, it would not be conceivable that hewould be sleeping in such clothes. The rigor mortis was found tobe slightly present either in the upper limbs but not in the lowerlimbs. The submission is that if the cause of death was due tocoronary artery insufficiency, rigor mortis would have set in fully.As against this, the form under which the dead body was sent forpost-mortem indicates that rigor mortis was well marked;

(iv) The report of the Regional Forensic Science Laboratory dated5 February 2015 indicates that the viscera did not reveal any traceof poison. Analysis commenced on 5 January 2015 and wascompleted on 19 January 2015 in pursuance of AD 44/2014 of PSSadar under Section 174 of the Cr PC. On 1 December 2014Sitabardi police station which was investigating the matter hadforwarded the body for post-mortem through police constablePankaj. Doubt has been caston the histo-pathologialreport of 5February 2015 on the ground that it refers to PS Sadar instead ofSitabardi. On 10 December 2014,Sadar police station addresseda letter to the Government Medical hospital, Nagpur to correctthe name of Judge Loya from Brijmohan Harikishan Loya to

Brijgopal Harikishan Loya. It has been urged that if Judge Loyawas accompanied by his colleagues, his name would not havebeen furnished incorrectly to the hospital;

(v) The record indicates that Sadar police station made freshaccidental death summary almost one and half years later on 2February 2016. While doing so, the officer of PS Sadar recordedas follows:

“Sir,

PSI SD Warade was day officer on 01/12/2014, he got AD no00/14, 174 CrPC from PC PANKAJ No 6238 [from SitabardiPolice Station]. The said AD was that of Shri BrijgopalHarikishan Loya, age 48 years, resident of Hajiali GovernmentColony, Building No 11, Mumbai.

On perusing the case diary, I found that the place of occurrenceis in jurisdiction of Police Station Sadar, so I registered AD No44/14, u/s 174 Cr PC.”

If AD 44/14 was registered in February 2016, it was urged, thereis contradiction in the reference to the above AD in the reportof the Regional Forensic Science Laboratory dated 5 February2015;

(vi) The statements of the four judicial officers “omitted to saymuch more than what they have stated”. None of them hasfurnished the suite number at Ravi Bhavan in which Judge Loyastayed during the night of 30 November 2014. The register ofRavi Bhavan does not contain any entry of Judge Loya havingstayed there. The account of Judge Kulkarni that he stayed withJudge Loya and Judge Modak in the same suite at Ravi Bhavanhas been called into question. The conduct of the judicial officersat Nagpur is criticized on the ground that none of them claims tohave informed the family after the death had occurred.Judge Bardein his statement recorded that he and Judge Kulkarni had met therelatives of the deceased after few days at Mumbai, which issubmitted to be unnatural;

(vii) If indeed, the Chief Justice of the Bombay High Court, the

Registrar General, judges of the High Court and judicial officerswere present in the hospital, efforts would have been made toensure that the family of Judge Loya travels to Nagpur by thenext available flight;

(viii) While in 2015 Judge Loya’s son had addressed letter forthe filing of an FIR or for instituting an inquiry into the death, andhis father and sister had demanded an inquiry in video recordedinterviews with Caravan and alleged that the Chief Justice of theBombay High Court had made an effort to bribe Judge Loya, thesubsequent statements of the members of the family have beenextracted by the State Intelligence Department and ought not tobe relied upon;

(ix) The security of Judge Loya was withdrawn on 24 November2014 week before his death;

(x) The Commissioner in the State Intelligence Department didnot meet any person nor did he visit any place to satisfy himself ofthe truthfulness of the statements or facts;

(xi) The statement of Dr Prashant Rathi was recorded on 22November 2017 by the police at Nagpur though the discreet inquirywas ordered on 23 November 2017;

(xii)The press interviews given by Justice Bhushan Gavai andJustice SB Shukre of the Bombay High Court to the Indian Expresson 27 November 2017 contain repetition of what the four districtjudges had mentioned in their letters. This raised grave suspicionas to why the interviews were given to the press in the first place;

(xiii) The Commissioner ought to have examined the statementsmade by the father, sister and son of Judge Loya to Caravan;

(xiv) If Judge Loya had suffered heart attack, his colleaguesinstead of taking him to Dande hospital ought to have shifted himto reputed cardiac facility some of which were situated within adistance of five kilometres from Ravi Bhavan. That the judicialofficers did not rush their colleague to “the best hospital available”raises doubts about the theory that they had accompanied JudgeLoya; and

(xv) While on one hand Dr Dande claimed that an ECG wastaken, Judge Rathi in his statement has recorded that at Dande

hospital the ECG machine was not working.”

On the above grounds, it has been submitted, that the report of theCommissioner of State Intelligence should be rejected. An independentinquiry by Special Investigating Team has been sought. He has suggestedto the Court that this is fit case for initiating the in-house procedureagainst two judges of the Bombay High Court for granting an interviewto the media.

15. Mr Dave has submitted an application that he may be allowedto cross-examine the four judicial officers whose statements have beenrelied upon in the report submitted by the Commissioner of StateIntelligence. In support of his application Mr Dave has relied upon thedecision of this Court in K. K. Kochunni v State of Madras[9 ]and onthe provisions contained in Order IX of the SC Rules. Cross-examinationhas been sought of the following persons:

“1 Mr Sanjeev Barve, Director General/Commissioner, StateIntelligence Department, Maharashtra,

2 Dr Prashant Bajrang Rathi, Resident of Sai Regency, Ravi Nagar,Nagpur,

3 Mr Niranjan Takle, Reporter of CARAVAN,

4 Shri Shrikant Kulkarni, Member Secretary, Maharashtra StateLegal Service Authority

5 Shri SM Modak, Principal District Judge, Pune,

6 Shri Vijay Barde, Additional Sessions Judge, City Civil andSessions Court, Greater Bombay

7 Dr Pinak Gangadhar Rao, Dande, Ram Nagar, Nagpur

8 Shri Anuj Brij Gopal Loya, s/o late Sh. BH Loya

9 Smt Sharmila Brij Gopal Loya w/o Sh. BH Loya

10 Shri Hari Kishan Ramchandra Loya, f/o late Sh BH Loya

11 Dr Anuradha BalaprasadBiyani, sister of late Sh. BH Loya.”

Mr Dave urged that the State should be directed to file an affidavitcontroverting the allegations contained in the petition.

9(1959) Supp (2) SCR 316

AB Ms Indira Jaising:

16. Ms Jaising has appeared on behalf of an intervenor (AdmiralRamdas). Ms Jaising urges that the following circumstances create asuspicion that the death of Judge Loya was not due to natural causes:

(i) The absence of any entry in the register at Ravi BhavanBrecording the name of Judge Loya as an occupant on 30 November and1 December 2014;

ii. The improbability of three judicial officers residing in one roomof Ravi Bhavan;

iii. The mis-spelling of the name of Judge Loya in the records ofCDande hospital and Meditrina hospital and in the post-mortem report,despite the fact that several judicial officers were alleged to be present;

iv. Non-production of the ECG carried out at Dande hospital andthe date of 30 November 2014 contained in the ECG published in theIndian Express on 27 November 2017;

v. The statement of judge Rathi that the ECG facility at Dandehospital was not working;

vi. The failure of the police to involve the Executive Magistrateon 1 December 2014 when an accident report was generated at Sitabardipolice station at 8.30 am;E

vii. Contradictions in the post-mortem report:

a. Correction of the name on 10 January 2015;

b. The date of death is shown as 7 December 2014;

c. The over-writing of the date of death from 30 November 2014 to 1 December 2014;

d. The cause of death as Coronary Artery Insufficiency;

viii. The failure to prepare panchnama of the personal belongingsof the deceased which assume significance from the statement of theGsister of the deceased to Caravan that his cell phone was returned fewdays later with all messages deleted;

ix. The first accidental death report (AD 00/14) under Section174 Cr PC was recorded at Sitabardi. The second AD 44/2014 wasrecorded at 1600 hours at Sadar police station without the ExecutiveMagistrate being informed;H

x. The failure to produce the case diary of PS Sitabardi or Sadar;

xi. Failure to follow the procedure prescribed by law under Section174 Cr PC. No inquiry was carried out by the police or by anyone else atthe inquest under Section 174;

xii. Dr Prashant Rathi was not ‘relative’ within the meaning ofSection 176 Cr PC;

xiii. Furnishing of information to the Executive Magistrate in respectof the accidental death summary on 2 February 2016;

xiv. The grievance of the Judge Loya’s sister to Caravan that theambulance containing the dead body was not accompanied by any judicialofficer;

xv. The letter dated 18 February 2017 of Anuj Loya requestingthe Chief Justice of the Bombay High Court to conduct an inquiry. MsJaising has urged submissions on the scope of provisions of Section 157of CrPC. The submission is that the expression “reason to suspect thecommission of an offence” must receive an appropriate constructionsince at that stage, the question of technical proof of facts alleged in thefirst information report does not arise (State of Haryana v Bhajan Lal)[10].In the present case, it was urged that upon the death of Judge Loya, thepolice appeared to have treated it as an accidental death and generatedAD 00/14 under Section 174 of the Cr PC. The police were bound tofollow the procedure prescribed by law. As held by this Court in AshokKumar Todi v Kishwar Jahan[11 ]the police may either close the caseor register an FIR and investigate into the offence. Neither was aninvestigation conducted under Section 174 Cr PC, nor was an FIRrecorded; and

xvi. Ms Jaising adverted to the decision in Zahira HabibullahSheikh v State of Gujarat[12 ] in which it was held:

“35. This Court has often emphasised that in criminal case thefate of the proceedings cannot always be left entirely in the handsof the parties, crime being public wrong in breach and violation ofpublic rights and duties, which affects the whole community as acommunity and is harmful to society in general. The concept of

10(1992) Supp (1) SCC 335

11(2011) 3 SCC 758

12(2006) 3 SCC 374

fair trial entails familiar triangulation of interests of the accused,the victim and the society and it is the community that acts throughthe State and prosecuting agencies. Interest of society is not to betreated completely with disdain and as persona non grata. Thecourts have always been considered to have an overriding duty tomaintain public confidence in the administration of justice—oftenreferred to as the duty to vindicate and uphold the “majesty of thelaw”. Due administration of justice has always been viewed as acontinuous process, not confined to determination of the particularcase, protecting its ability to function as court of law in thefuture as in the case before it. If criminal court is to be aneffective instrument in dispensing justice, the Presiding Judge mustcease to be spectator and mere recording machine by becominga participant in the trial evincing intelligence, active interest andelicit all relevant materials necessary for reaching the correctconclusion, to find out the truth, and administer justice with fairnessand impartiality both to the parties and to the community it serves.The courts administering criminal justice cannot turn blind eyeto vexatious or oppressive conduct that has occurred in relation toproceedings, even if fair trial is still possible, except at the riskof undermining the fair name and standing of the judges as impartial

and independent adjudicators.”

EReliance was also placed on the following observations contained in thedecision in Vineet Narain v Union of India[13]:

“3. The facts and circumstances of the present case do indicatethat it is of utmost public importance that this matter is examinedthoroughly by this Court to ensure that all government agencies,entrusted with the duty to discharge their functions and obligationsin accordance with law, do so, bearing in mind constantly theconcept of equality enshrined in the Constitution and the basictenet of rule of law: “Be you ever so high, the law is above you.”Investigation into every accusation made against each and everyperson on reasonable basis, irrespective of the position and statusof that person, must be conducted and completed expeditiously.This is imperative to retain public confidence in the impartialworking of the government agencies.”

In the submission of Ms Jaising, there is chain of suspicious13(1996) 2 SCC 199

circumstances which warrants court monitored investigation. Thesehave been summarised as follows:

a. Inconsistencies in the documents produced by the State ofMaharashtra;

b. Statements made by the family which appeared in the CaravanBdated 20 November 2017 and 21 November 2017 and thecontradictory statements by the two sitting judges of the HighCourt in the Indian Express dated 27 November 2017;

c. The statements made by the family of the deceased to NiranjanTakle of Caravan that they suspect foul play;

d. Contradiction of those statements by the family in documentsproduced by the State of Maharashtra;

e. Non-compliance with the provisions of Section 174 Cr PC;

f. The absence of the family during the post-mortem;

g. The handing over of the body to Dr Prashant Rathi who wasa stranger;

h. The misspelling of the name of the deceased in medicaldocuments;

i. The absence of the name of Judge Loya in the occupancyregister of Ravi Bhavan;

j. The transfer of the earlier judge, Judge Utpat day before thehearing of the Sohrabuddin trial in the teeth of the judgmentin CBI v Amitbhai Anil Chandra Shah[14]; and

k. The fact that the incoming judicial officer after Judge Loya’sdeath discharged one of the accused within month of hisassuming charge.

Mr PV Surendranath:

17. Mr PV Surendranath, learned senior counsel appearing onbehalf of All India Lawyers’ Union, an intervenor, submitted that thescope of the present hearing is only confined to the death of Judge Loyaon 1 December 2014 and does not extend to the “Sohrabuddin fakeencounter case trial..or its trajectory; the transfer of the predecessor

14(2012) 10 SCC 545

Aofficer etc.” Relying on the decision of this Court in Vineet Narain(supra), Mr Surendranath submitted that the setting up of SpecialInvestigation Team is warranted, having regard to the nature of the crimein the Sohrabuddin case, the status of the accused, circumstances whichled to the transfer of the proceedings from Gujarat to Maharashtra; thedischarge of some of the accused after new judicial officer took chargeBupon the death of Judge Loya and the absence of security for JudgeLoya at the relevant time. In his submissions, the contradictory versionsgiven by close relatives of the deceased judge is in itself reason toorder formal investigation under the Cr PC by registering an FIR.

Mr Prashant Bhushan:C

18. Mr Prashant Bhushan, learned counsel appearing on behalfof the Centre for Public Interest Litigation has filed an application forintervention. The affidavit in support of the application has been swornand verified by Mr Prashant Bhushan. Reiterating the contents of theapplication, it has been urged that on 11 February 2018 Caravan publishedDa report stating that the post-mortem report and histo-pathology reportthat accompanied the sample of the viscera were submitted to Dr RKSharma, former Head of Forensic Medicine and Toxicology at AIIMS.Mr Bhushan submitted that the intervenor obtained copy of the histo-pathology report and copy of the ECG. The expert opinion of Dr RKESharma, it has been submitted, indicates that there was no evidence ofmyocardial infarction and though changes were observed in the conditionof the heart, they are not conclusive to show coronary artery insufficiency.Moreover, emphasis has been placed on the fact that the post-mortemreport indicated congestion in the dura which would indicate that thepossibility of poisoning cannot be ruled out.F

19. Mr Prashant Bhushan states that the intervenor submitted acopy of the ECG and histo-pathology report to Dr Upendra Kaul, aformer Professor of Cardiology at AIIMS. Mr Prashant Bhushanaddressed an e-mail to Dr Kaul, attaching the ECG and histo-pathologyreport and addressed three questions which read as follows:G

“1. Could this person have suffered serious heart attack, one-two hours before this ECG is taken? In other words, is this ECGconsistent with the ECG of person who has had seriousmyocardial one to two hours before this ECG is done?

2. Is the histopathology report of his coronary arteries and heartH

muscle consistent with his death being due to acute myocardialinfraction or coronary thrombosis?

3. In addition I would also like to ask you whether person whohas died due to myocardial infraction could show significantcongestion of the dura, liver, spleen, kidney, larynx, trachoa andBronchi, lungs. Is it possible for this congestion of all his organsas mentioned in the post mortem report, to have taken placebecause of CPR administrated at the time of his death?”

In reply Dr Kaul has stated thus:

“1. Most unlikely, the ECG has no evidence of recent myocardialinfraction.

The histo-pathology of heart muscle says it is normal. The coronaryartery block in LAD could be an innocent bystander.

2. Unlikely to be because of recent MI but could be because ofan intensive CPR.”

Mr Bhushan submitted that he has also spoken to “other reputedcardiologists” who have “also given essentially the same opinion”. MrBhushan has submitted that the statements by the four judges whichwere produced in court have not been filed on affidavit. Besides, thestatements of the four judicial officers would only indicate that JudgeLoya complained of chest pain following which he died on the way toMeditrina hospital. According to him, the eye-witness accounts wouldbe consistent with other causes of death including poisoning. Virtually atthe end of his submissions, Mr Bhushan queried this Court as to whethertwo members of the Bench (Justice AM Khanwilkar and Justice DYChandrachud) would like to hear the matter since it may be that asjudges of the Bombay High Court earlier they may have been acquaintedwith the four judicial officers and the two judges (Justice Gavai andJustice Shukre). In response to his query we had inquired of Mr Bhushanas to whether he intended to file an application for recusal. No applicationfor recusal has been filed. Mr Bhushan has stated that he leaves thematter there.

Mr PallavShishodia:

20. Mr Pallav Shishodia, learned senior counsel, has urged in hissubmissions that:

A“These stories have led to tide of insinuations, questions onintegrity of our judicial system and war of recriminations. Thepresent writ proceedings also appear to have found resonance inone eminent press conference as also led to open aspersions caston the some of the judges of this Hon. Court hearing the matter.In the circumstances, it is submitted that an independent probeBcannot be one way traffic in which persons making allegationscan just “hit and run” without any responsibility to damages causedto the reputation, prestige and faith in institutions including thisHon’ble Court and judiciary as whole”

Mr V Giri:C

21. Mr V Giri, learned senior counsel has independently urgedsubmissions similar to those which have been urged before the court bythe other learned senior counsel. Much of what has been argued byearlier counsel has been reiterated. His assisting counsel urged duringthe course of his rejoinder that the judges who were present with JudgeDLoya were party to the conspiracy.

II State of Maharashtra

Harish Salve:

22. Mr Harish Salve, learned senior counsel submitted that judicialEreview is potent weapon to preserve the rule of law. Though counselfor the petitioners asserted that the petitions were instituted to preservethe independence of the judiciary, the nature of the allegations and thetenor of the submissions indicate that the effort is to launch frontalattack on judicial independence. Judges of the district judiciary are in avulnerable position and it was urged that it is all the more necessary inFthe facts of this case for this Court to assert its authority to protect themfrom the indiscriminate attacks levelled by counsel appearing on behalfof the petitioners.

Mr Mukul Rohtagi:

G23. Mr Mukul Rohtagi, learned senior counsel submitted that thoughthe batch of present cases is styled as petitions filed in the public interest,reality is far away from the principles enunciated by this Court in Stateof Uttaranchal v Balwant Singh Chaufal [15]. The petitions as well asthe submissions urged in support constitute an attempt to scandalise the

H15(2010) 3 SCC 402

judiciary and sensationalise the issue.

Mr Mukul Rohatgi submitted that:

(i) Judge Loya died on 1 December 2014 at Nagpur and wascremated at Gategaon, near Latur in the presence of his familyand friends. Three years later, on 20 and 21 November 2017articles were published in Caravan which was followed by aflurry of writ petitions;

(ii) Ordinarily, this Court would not entertain petition only onthe basis of news reports, because they are hear say in thenature. All the petitions are based entirely on news reports.The source of knowledge is the reports which appeared inthe print and electronic media;

(iii) Despite the submission in (ii) above, having due regard to thefact that the death of judge in the state judicial service is inissue, the State of Maharashtra is not pressing for dismissalon grounds of maintainability and urges its submissions onmerits to satisfy the conscience of the court;

(iv) Two colleagues of Judge Loya from the district judiciary –Judge Kulkarni and Judge Modak were with him from 29November 2014 until he died on 1 December 2014. Theyhave furnished clear and cogent account of the events whichtook place. Their statements are corroborated by thestatements of two other judicial officers – Judge Rathi andJudge Barde;

(v) An inquiry can be ordered by this court only if it finds sufficientjustification to reject the eye-witness account of the judgesof the district judiciary who accompanied Judge Loya fromthe night of 29 November 2014 (when they left Mumbai forNagpur) until the afternoon of 1 December 2014 (when theambulance left for Gategaon). The statements of the judgesare an abundant reflection of the truth of the matter. AfterJudge Loya died on 1 December 2014, four judges of theHigh Court, including the Chief Justice, who were informedof the death reached Meditrina hospital shortly after the death;

(vi) The issue before the court is whether Judge Loya died anatural death or whether there are circumstances which

Aindicate that the death was unnatural. The court is not calledupon to evaluate the nature of the care or treatment that wasreceived by him at Dande and Meditrina hospitals;

(vii) The four statements by Judge Kulkarni, Judge Modak, JudgeBarde and Judge Rathi are signed by them. The statement ofBJudge Modak states that Judge Loya was in the same roomat Ravi Bhavan. The statements of the four judges also coveran important stretch of time from 0400 hours to 0630 hourson 1 December 2014. There is no reason to cast doubt orsuspicion on the statements of the four judges of the districtjudiciary. They have neither an axe to grind nor any motiveCnot to speak the truth. Minor contradictions should not resultin the statements being discarded since they are not ofconsequence. Minor contradictions are in fact natural whenevents which took place three years earlier are recalled.Moreover, this court is not hearing regular criminal appealDafter full-fledged trial;

(viii) The ECG was taken at Dande hospital and was evidentlycarried to Meditrina hospital. The progress notes of the doctorat Meditrina hospital advert to the nature of the ECG and italso forms part of the record. Significantly Judge BardeEhas deposed to the fact that an ECG was done though JudgeRathi has stated that at Dande hospital the nodes of the ECGmachine were not in order;

(ix) After the death had occurred, an inquest was conductedunder Section 174 Cr PC in the mortuary of the GovernmentFMedical College at Nagpur. Thereafter post-mortem wasconducted which indicated that the death was due to coronaryartery insufficiency. The post-mortem was necessitatedbecause Judge Loya was brought dead to Meditrina hospital.A request was made to the forensic science laboratory on 1December 2014 for analysis of the viscera. The FSL reportGand the report dated 5 February 2015 specifically notes thatno trace of poison was found;

(x) No credence should be attached to the fact that the name ofJudge Loya was recorded as Brijmohan instead of Brijgopal,having due regard to the emergency in which he was initiallyHtaken to Dande hospital and later to Meditrina. The error

was corrected on 10 December 2014;

(xi) The death report was initially recorded at Sitabardi policestation Nagpur. The death report at police station Sadar wasrecorded later since Ravi Bhavan falls within the jurisdictionof Sadar police station. As the record indicates, the deathreport at police station Sadar was on the basis of the earlierreport lodged at Sitabardi police station;

(xii) Finding that there was no warrant for suspicion in regard tothe death, request for closure was submitted to the ExecutiveMagistrate in February 2016;

(xiii)There was nothing untoward in the conduct of discreetinquiry by the Commissioner, SID. The inquiry was initiatedafter news reports appeared in Caravan on 20 and 21November 2017. While conducting such inquiries, parallelis drawn by the State on the basis of the Anticorruption Manualwhich envisages the procedure to be followed in discreetinquiry. Even independent of the manual, the state governmentwas justified in conducting an inquiry having due regard tothe fact that aspersions were cast by news periodical inregard to the circumstances leading to the death of judge ofthe district judiciary;

(xiv) On the initiation of the discreet inquiry, an authorisation wasobtained from the Chief Justice for recording the ‘say’ of thefour judicial officers. Letters were addressed to them. JudgeKulkarni and Judge Barde were posted at Mumbai, JudgeModak was posted at Pune and Judge Rathi was at Baramati.The DGP sent hard copy of the order of authorisation bythe Chief Justice to Pune and Baramati. There is no reasonto entertain any suspicion because the judges submitted theirstatements immediately upon receipt of the authorisation ofthe Chief Justice of the Bombay High Court;

(xv) Significantly while the petitioners and intervenors have doubtedwhether the three judges stayed at Ravi Bhavan, the reportin Caravan expressly acknowledges that it was at Ravi Bhavanthat they had stayed during their visit to Nagpur;

(xvi)Immediately on the publication of the Caravan report on 11

AFebruary 2018 containing reference to the opinion purportedlygiven by Dr Sharma, two letters dated 14 February 2018 wereaddressed to AIIMS with reference to the opinion. AIIMS inits reply has specifically clarified that it is not practice togive such information. Dr Sharma has clarified that he wasgrossly misquoted by Caravan and that the conclusions in theBarticle are imaginary;

(xvii)The police inspector at Nagpur addressed communicationto Dr Harish Pathak, Head of Department of ForensicMedicine and Toxicology at KEM hospital, Mumbai. Thereport submitted by Dr Pathak specifically mentions that theCfindings in the post-mortem and histo-pathology reports areindicative of acute coronary insufficiency;

(xviii)The manner in which the petitioners have conductedthemselves is evident from the innuendos attaching to thereliance by Mr Dave on an order of the Nagpur bench of theDHigh Court, quashing criminal prosecution against severalpetitioners of whom the fourth petitioner was Mr DevendraFadnavis, Chief Minister of Maharashtra. The manner inwhich reliance has been placed on that order before this courtwould indicate that these proceedings are not instituted bonaEfide but constitute clear attempt to subvert judicialindependence and to cast aspersions on the independence ofthe judiciary; and

(xix)The timing of the publication of the newspaper article waspolitically motivated, since it coincided with the elections tothe Gujarat Assembly. It is urged that the purpose is to targeta political opponent by engaging the process of the Court.

24. The rival submissions would now be analysed.

Analysis

25. Mr Dave submitted that notice be issued formally in the writGproceedings and the State should be called upon to file affidavits inresponse to the petitions. Counsel submitted that once affidavits arefiled it would be open to the petitioners to initiate steps for perjury, if afalse statement has been made before the court.

26. While dealing with this submission, it is necessary to record

that in pursuance of the procedural directions which were issued duringthe course of the first hearing, the state has filed compilation ofdocuments on the record. All contesting parties have appeared and havebeen heard. The documentary material which has been filed by the statehas been tendered to the court and forms part of the record of judicialproceedings. No affidavit by police officer or authority can improveupon the factual situation emerging from the documentary material whichis placed before the Court. Once this is the position, the state and itsofficers must necessarily take full responsibility for all that has beenplaced on the record and face any legal consequence which arises fromthe documentary material which is produced in the proceedings beforethe court. The issue before the court is whether an inquiry into the deathof Judge Loya is warranted on the directions of this court. This woulddepend in substance on the nature of the inquiry which has beenconducted. The latter is matter of record. Affidavits cannot improveupon the official record of the state. Besides, as we have noted earlier,counsel for the State of Maharashtra informed the court that the stategovernment would be willing to produce any further documents whichform part of the official record as are required for inspection by learnedcounsel appearing on behalf of the petitioners and intervenors. Moreover,Mr Rohatgi urged that the state would willingly accept any directions ofthe Court, in addition to the material which was filed. Under the order ofthis court learned counsel were permitted to provide list of suchdocuments to counsel for the state, if any additional documents wererequired to be produced. We have also scrutinised with the assistance ofcounsel, the material which has been produced by counsel for thepetitioners and intervenors besides the material produced by the statewithout regard to technicalities of procedure. This batch of cases hasbeen heard fully. Hearings have been convened over ten dates of judicialsitting. We find no justification at this stage to call upon the state to fileaffidavits since full and complete opportunity has been granted to allthe parties and their counsel to address submissions on every aspect ofthe case that they desire to address. The entire record is before thecourt.

Section 174 Cr PC

27. Section 174 of the Code of Criminal Procedure 1973 providesthus:

“174. Police to enquire and report on suicide, etc.

DEFG

(1) When the officer in charge of police station or some otherpolice officer specially empowered by the State Government inthat behalf receives information that person has committedsuicide, or has been killed by another or by an animal or bymachinery or by an accident, or has died under circumstancesraising reasonable suspicion that some other person hascommitted an offence, he shall immediately give intimation thereofto the nearest Executive Magistrate empowered to hold inquests,and, unless otherwise directed by any rule prescribed by the StateGovernment, or by any general or special order of the District orSub- divisional Magistrate, shall proceed to the place where thebody of such deceased person is, and there, in the presence oftwo or more respectable inhabitants of the neighbourhood, shallmake an investigation, and draw up report of the apparent causeof death, describing such wounds, fractures, bruises, and othermarks of injury as may be found on the body, and stating in whatmanner, or by what weapon or instrument (if any); such marksappear to have been inflicted.(2) The report shall be signed by such police officer and otherpersons, or by so many of them as concur therein, and shall beforthwith forwarded to the District Magistrate or the Sub- divisionalMagistrate.

(3)[ 1] When-

(i) the case involves suicide by woman within seven years ofher marriage; or

(ii) the case relates to the death of woman within seven yearsof her marriage in any circumstances raising reasonablesuspicion that some other person committed an offence in relationto such woman; or

(iii) the case relates to the death of woman within seven yearsof her marriage and any relative of the woman has made requestin this behalf; or

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedientso to do, he shall. subject to such rules as the State Governmentmay prescribe in this behalf, forward the body, with view to itsbeing examined, to the nearest Civil Surgeon, or other qualifiedmedical man appointed in this behalf by the State Government, if

the state of the weather and the distance admit of its being soforwarded without risk of such putrefaction on the road as wouldrender such examination useless.

(4) The following Magistrates are empowered to hold inquests,namely, any District Magistrate or Sub- divisional Magistrate andany other Executive Magistrate specially empowered in this behalfby the State Government or the District Magistrate.”

28. Section 174 deals with situation where information is receivedby an officer in-charge of police station of person having committedsuicide, or having been killed (i) by another; or (ii) by an animal; or (iii)by machinery or (iv) by an accident or of having died under circumstancesraising reasonable suspicion that some other person has committed anoffence. In any of these situations, the police officer is required to furnishintimation immediately to the nearest Executive Magistrate who isempowered to hold inquests. He is required to proceed to the placewhere the body is situated and in the presence of two witnesses to makean investigation and draw up report of the apparent cause of death.The report would describe the wounds including marks of injury whichare found on the body and in what manner or by what weapon orinstrument if any they appear to have been inflicted.

29. The purpose of holding an inquest is limited. The inquest reportdoes not constitute substantive evidence. Hence matters relating to howthe deceased was assaulted or who assaulted him and under whatcircumstances are beyond the scope of the report. The report of inquestis primarily intended to ascertain the nature of the injuries and the apparentcause of death. On the other hand, it is the doctor who conducts post-mortem examination who examines the body from medico-legalperspective. Hence it is the post-mortem report that is expected to containthe details of the injuries through scientific examination[16].

30. The scope of an inquiry under Section 174 of the Cr PC hasbeen considered in several decisions of this court. In Pedda Narayana

16 Madhu v State of Karnataka (2014) 12 SCC 419; Radha Mohan Singh @ Lal Sahebv State of UP (2006) 2 SCC 450;Mahendra Rai v Mithlesh Rai (1997) 10 SCC 605Amar Singh v Balwinder Singh (2003) 2 SCC 518; Suresh Rai v State of Bihar AIR2000 SC 2207 and Shukla Khader v Nausher Gama (1975) 4 SCC 12217 (1975) 4 SCC 153

Av State of Andhra Pradesh[17], this court explained that the limited scopeof such an inquiry is to ascertain whether person has died in suspiciouscircumstances or an unnatural death and, if this was the case, the apparentcause of death. The court observed:

“The proceedings under Section 174 have very limited scope.BThe object of the proceedings is merely to ascertain whether aperson has died under suspicious circumstances or an unnaturaldeath and if so what is the apparent cause of the death. Thequestion regarding the details as to how the deceased was assaultedor who assaulted him or under what circumstances he wasassaulted is foreign to the ambit and scope of the proceedingsCunder Section 174. Neither in practice nor in law was it necessaryfor the police to mention those details in the inquest report.”

This principle was reiterated in Amar Singh v Balwinder Singh (supra)where the court observed thus:

D“12...The requirement of the section is that the police officer shallrecord the apparent cause of death describing the wounds as maybe found on the body and also the weapon or instrument by whichthey appear to have been inflicted and this has to be done in thepresence of two or more respectable inhabitants of theneighbourhood. The section does not contemplate that the mannerEin which the incident took place or the names of the accusedshould be mentioned in the inquest report. The basic purpose ofholding an inquest is to report regarding the apparent cause ofdeath, namely, whether it is suicidal, homicidal, accidental or bysome machinery etc. (Id at page 641)”

FThe view in Pedda Narayana (supra) has been approved by threejudge Bench in Khujji @ Surendra Tiwari v State of MadhyaPradesh[18].Hence in Radha Mohan Singh Alias Lal Saheb v State ofU.P.[19], Bench of three learned judges formulated the principle in thefollowing terms:G“Thus, it is well settled by catena of decisions of this Court thatthe purpose of holding an inquest is very limited viz. to ascertainas to whether person has committed suicide or has been killedby another or by an animal or by machinery or by an accident or

18(1991) 3 SCC 62719(2006) 2 SCC 450H

has died under circumstances raising reasonable suspicion thatsome other person has committed an offence. There is absolutelyno requirement in law of mentioning the details of the FIR, namesof the accused or the names of the eyewitnesses or the gist oftheir statements, nor is it required to be signed by anyeyewitness.”

Bench of two learned judges of this Court in Madhu AliasMadhuranatha v State of Karnataka[20] has observed that an inquestreport is not substantive evidence.

In Manoj Kumar Sharma v State of Chhattisgarh[21], Bench of twolearned judges held that the purpose of an ‘inquest’ in cases of accidentalor suspicious deaths under Sections 174 and 175 is distinct from the‘investigation’ under Section 157 of the Code under which if an officerin charge of police station has reason to suspect the commission of anoffence which he is empowered to investigate, he shall proceed in personto the spot to investigate the facts and circumstances of the case.

Reiterating this principle, two judge Bench in Bimla Devi v RajeshSingh[22] explained the scope of the provisions of Section 174 in thefollowing observations:

“The scope of the section is investigation by the police in cases ofunnatural or suspicious death. However, the scope is very limitedand aimed at ascertaining the first apparent signs of the death.Apart from this, the police officer has to investigate the placewherefrom the dead body is recovered, describe wounds, fractures,bruises and other marks of injury as may be found on the body,stating in what manner or by what weapon or instrument, suchinjuries appear to have been inflicted. From the above, it thusbecomes clear, that the section aims at preserving the first look atthe recovered body and it need not contain every detail. Mereoverwriting in the name of the informant would not affect theproceedings.”The same position has been laid down in more recent decision of twojudge Bench in Yogesh Singh v Mahabeer Singh[23]:

20(2014) 12 SCC 41921(2016) 9 SCC 122(2016) 15 SCC 448

23 (2017) 11 SCC 195

A“41. Further, the evidentiary value of the inquest report preparedunder Section 174 CrPC has also been long settled through aseries of judicial pronouncements of this Court. It is well establishedthat inquest report is not substantive piece of evidence and canonly be looked into for testing the veracity of the witnesses ofinquest. The object of preparing such report is merely to ascertainBthe apparent cause of death, namely, whether it is suicidal,homicidal, accidental or caused by animals or machinery, etc. andstating in what manner, or by what weapon or instrument, theinjuries on the body appear to have been inflicted. (See PeddaNarayana v. State of A.P. [Pedda Narayana v. State of A.P.,C(1975) 4 SCC 153 : 1975 SCC (Cri) 427] , Khujji v. State ofM.P. [Khujji v. State of M.P., (1991) 3 SCC 627 : 1991 SCC(Cri) 916] , Kuldip Singh v. State of Punjab [KuldipSingh v. State of Punjab, 1992 Supp (3) SCC 1 : 1992 SCC (Cri)946] , George v. State of Kerala [George v. State of Kerala,(1998) 4 SCC 605 : 1998 SCC (Cri) 1232] , Suresh Rai v. StateDof Bihar [Suresh Rai v. State of Bihar, (2000) 4 SCC 84 : 2000SCC (Cri) 764] , Amar Singh v. Balwinder Singh [AmarSingh v. Balwinder Singh, (2003) 2 SCC 518 : 2003 SCC (Cri)641], Radha Mohan Singh v. State of U.P. [Radha MohanSingh v. State of U.P., (2006) 2 SCC 450 : (2006) 1 SCC (Cri)E661] and Sambhu Das v. State of Assam [Sambhu Das v. Stateof Assam, (2010) 10 SCC 374 : (2010) 3 SCC (Cri) 1301] .)”

31. Sub-section(3) of Section 174 requires the police officer toforward the body for being examined to the nearest civil surgeon, or asthe case may be, to duly qualified medical person appointed by theFstate government in this behalf, in the circumstances set out there. Amongthe circumstances, clause (iv) deals with situation where there is anydoubt regarding the cause of death while clause (v) deals with casewhere the police officer considers it expedient to do so. Sub-section (4)of Section 174 specifies that the District Magistrate, Sub-Divisional

Magistrate and any other Executive Magistrate especially empoweredGmay hold inquests. Under Section 175, the police officer proceedingunder Section 174 is empowered to summon for the purposes of theinvestigation any person who appears to be acquainted with the facts ofthe case. Under Section 176, where the case is of the nature specified inclauses (i) or (ii) of sub-section (3) of Section 174, the nearest MagistrateHempowered to hold an inquest shall hold an inquiry into the cause of

death instead of or in addition to the investigation held by the policeofficer. In any other case mentioned in sub-section (1) of Section 174the Magistrate may hold an inquiry. Sections 175 and 176 provide asfollows:

“175. Power to summon persons.

(1) police officer proceeding under section 174, may, by orderin writing, summon two or more persons as aforesaid for thepurpose of the said investigation, and any other person who appearsto be acquainted with the facts of the case and every person sosummoned shall be bound to attend and to answer truly all questionsother than questions the answers to which would have tendencyto expose him to criminal charge or to penalty or forfeiture.

(2) If the facts do not disclose cognizable offence to whichsection 170 applies, such persons shall not be required by thepolice officer to attend Magistrate’ s Court.

176. Inquiry by Magistrate into cause of death.

(1)[ 2] when the case is of the nature referred to in clause (i) orclause (ii) of sub- section (3) of section 174] the nearestMagistrate- empowered to hold inquests shall, and in any othercase mentioned in sub- section (1) of section 174, any Magistrateso empowered may hold an inquiry into the cause of death eitherinstead of, or in addition to, the investigation held by the policeofficer; and if he does so, he shall have all the powers in conductingit which he would have in holding an inquiry into an offence.

(1A) Where –

a. any person dies or disappears, or

b. rape is alleged to have been committed on any woman,

while such person or woman is in the custody of the police or inany other custody authorized by the Magistrate or the Court, underthis Code in addition to the inquiry or investigation held by thepolice, an inquiry shall be held by the Judicial Magistrate or theMetropolitan Magistrate, as the case may be, within whose localjurisdiction the offence has been committed.

(2) The Magistrate holding such an inquiry shall record the

evidence taken by him in connection therewith in any mannerhereinafter prescribed according to the circumstances of the case.

(3) Whenever such Magistrate considers it expedient to make anexamination of the dead body of any person who has been alreadyinterred, in order to discover the cause of his death, the Magistratemay cause the body to be disinterred and examined.

(4) Where an inquiry is to be held under this section, the Magistrateshall, wherever practicable, inform the relatives of the deceasedwhose names and addresses are known, and shall allow them toremain present at the inquiry.

(5) The Judicial Magistrate or the Metropolitan Magistrate orExecutive Magistrate or police officer holding an inquiry orinvestigation, as the case may be, under sub-section (1A) shall,within twenty-four hours of the death of person, forward thebody with view to its being examined to the nearest Civil Surgeonor other qualified medical man appointed in this behalf by theState Government, unless it is not possible to do so for reasons tobe recorded in writing.

Explanation.- In this section, expression” relative” means parents,children, brothers, sisters and spouse.”

EDocumentary material

32. In the context of the above statutory provisions, it is necessaryto examine the material on record. We will proceed to initially analysethe documentary material which has been placed before the court bythe State of Maharashtra. Since the statements of the judicial officerswhich were recorded during the course of the discreet inquiry havebeen the subject of considerable amount of argument, we will analysethem in subsequent part of the judgment.

33. Judge Loya was brought to Meditrina hospital at Nagpur at6.15 am on 1 December 2014. Dr NB Gawande of Meditrina addresseda letter to the PSI, Sitabardi police station on the following subject:

“MLC information on hospital in-patient death/brought dead”.

The communication states that the deceased was “brought with noevidence of life to our hospital” with history of retrosternal chest pain.The patient was reported to have come to Nagpur to attenda function.

The person who admitted the patient is recorded as Shrikant Kulkarni.His relationship with the patient is described as “friend”. The probablecause of death is stated to be unknown. The name of the consultant isendorsed as Dr Pankaj Harkut.

34. The Progress notes of the doctor at Meditrina hospital containa death summary. It records that according to the history given by theaccompanying persons, the patient had suffered retrosternal chest painduring the course of the immediately previous night. It states that thepatient was taken to Dande hospital where an ECG was done. TheECG (it is recorded) reflected “tall ‘T’” in the anterior lead and thatthe patient collapsed while being shifted. The death summary furtherstates that resuscitation was started immediately after reaching thehospital and emergency medication was provided. The steps which weretaken to revive the patient are recorded and it has been stated that inspite of resuscitative efforts, the patient could not be revived and wasdeclared dead at 6.15 am on 1 December 2014. The death summaryrecords that post-mortem was advised for ascertaining the cause ofdeath. death report was accordingly issued on 1 December 2014 bythe duty medical officer at Meditrina. The post-mortem became necessarybecause, Judge Loya was ‘brought dead’.

35. At 8.30 am on 1 December 2014, the police station at Sitabardi(within whose jurisdiction Meditrina hospital is located) recorded thestatement of Dr Prashant Rathi. The statement is to the effect thatthe deceased was related to his uncle. The deceased had travelled toNagpur for attending marriage and was residing at Ravi Bhavan, CivilLines. When he complained at 0400 hours of chest pain, he was admittedto Meditrina hospital where he was declared as “brought dead” at 0600hours. On the basis of the statement of Dr Prashant Rathi, the deathreport (margkhabri) was drawn up under Section 174 of Cr PC bearingAD 00/14. The statement of Dr Rathi is reproduced in the death reportand titled as “nakal bayan” (this is because the statement is reproduced).The death report contains an endorsement of PSI RK Mundhe, the dutyofficer from 2100 hours on 30 November 2014 to 0900 hours on 1December 2014 of the registration of an accidental death report on thebasis of the statement of Dr Rathi and of having sent police constablePankaj for taking care of the dead body.

36. Government Medical Hospital, Nagpur received the dead body

Aat 10 am on 1 December 2014 for post-mortem. An inquest panchnamacommenced at 10 am and ended at 10.30 am in the presence of twopanchas. PSI Mundhe attached to Sitabardi police station conducted theinquest. The inquest panchnama notes the condition of the dead bodyand does not find any mark of injury or assault. The dead body was thensent to the medical officer for conducting the post-mortem. There is anBadvance report dated 1 December 2014 of Dr NK Tumram of theDepartment of Forensic Medicine at Government Medical Collegerecording that the probable cause of death is “coronary arteryinsufficiency”. The post-mortem report of 1 December 2014 recordsthat there is no evidence of bodily injury. The dura and brain are found toCbe congested and edemitous. Lungs are also found to be in congestedcondition and edemitous. The heart is found to be congested. The post-mortem records that there is evidence of arthrosclerosis in the leftcoronary and left anterior descending artery with calcification. It recordsthe narrowing of the artery and evidence of hypertrophy of the leftventricle. Evidence is found of plaque in the inner wall of the aorta. TheDreport indicates that samples of the stomach, liver, kidney and bloodwere preserved for histo-pathological examination. The probable causeof death is recorded as “coronary artery insufficiency”.37. Following the post-mortem, the dead body was handed overto Dr Prashant Rathi on 1 December 2014 in token of which receiptEwas obtained by Sitabardi police station.

38. On the basis of the death report which was recorded bySitabardi police station the police station at Sadar recorded an accidentaldeath report (AD 44/14) under Section 174 CrPC. The death reportcontains statement that PSI Warpade, the day duty officer on 1FDecember 2014 had received the case diary of AD 00/14 from policeconstable Pankaj and that he had registered AD 44/14 under Section174 Cr PC. The registration of the AD at Sadar police station is at 1600hours on 1 December 2014. Ravi Bhavan falls within the jurisdiction ofSadar police station.G

39. On 1 December 2014, the duty officer at Sadar police stationaddressed communication to the Deputy Director of the ForensicLaboratory, Dhantoli, Nagpur, and sought chemical analysis of thesamples of the viscera and of bottle of blood which had been preserved.Analysis of the samples commenced on 5 January 2015 and ended on

19 January 2015. On 5 February 2015 the Assistant Chemical Analyserin the Regional Forensic Science Laboratory submitted his report statingthat:

“general and specific : chemical testing does not reveal any poisonin exhibit nos.(1), (2) and (3).”

Exhibits (1), (2) and (3) are respectively samples of the stomach, liver,spleen and kidney and blood.

40. In the records of Meditrina hospital referred to earlier, thename of the deceased was referred to as Brijmohan Loya. It appearsfrom the post-mortem report that the name of the deceased was initiallyrecorded as Brijmohan Harikishan Loya. The records of Meditrina hospitalas well as the post-mortem contain reference to the address of thedeceased being the official quarters at Haji Ali Government Colony,Building no.11, Mumbai. This, it is undisputed, is where Judge Loyaresided. There is hence absolutely no doubt about the identity of thebody on which post-mortem was performed. On 10 December 2014 thePSI at Sadar police station addressed letter to Government MedicalHospital seeking correction in the name of the deceased as BrijgopalHarikishan Loya. The correction was endorsed on 10 December 2014on the post-mortem report.

41. In February 2016, the Sadar police station addressed acommunication to the Special Executive Magistrate making referenceto the death summary bearing No.07/16 dated 2 February 2016. Thesummary records that on 1 December 2014, the police station at Sadarreceived AD004/14 from the Sitabardi police station. On perusing thecase diary, it was noticed that the place of occurrence was within thejurisdiction of Sadar police station. Hence AD 44/14 was recorded underSection 174 Cr PC. An inquest panchnama was prepared by PSI Mundhein the presence of two panch witnesses. The post-mortem was conductedat the Medical College Hospital by Dr NK Tumram of the ForensicMedicine Department. After the post-mortem concluded, the body washanded over to Dr Prashant Rathi, relative of the deceased. Duringthe course of inquiry, it has been noted from the post-mortem report thatthe cause of death was coronary artery insufficiency. On discussing thematter with Dr Tumram, it was ascertained that the death was due to aheart attack and there was nothing suspicious about the death. During

Athe course of the inquiry the police station at Gategaon, District Laturwas contacted when it was intimated that the relatives of the deceasedreside in Mumbai. Dr Prashant Rathi had intimated, that the deceasedhad visited Nagpur to attend marriage; on the date of the incident hedeveloped pain in the chest at 0400 hours and was admitted to Meditrinahospital where he was declared dead. The summary records that JudgeBLoya died due to heart attack. No complaint has been lodged by hisrelatives at the local police station or at PS Sadar of any suspicion inregard to the cause of death and the medical officer has recorded thecause of death as heart attack in the PM report and there was noevidence of assault. The summary was accordingly submitted to theCSpecial Executive Magistrate, Sadar division, Nagpur.

Statements of four judicial officers

42. Now it is in this background, that it would be necessary toadvert to the statements of the judicial officers which were recordedduring the course of the discreet inquiry in November 2017. discreetDinquiry was ordered on 23 November 2017 by the Home department ofthe state government following the reports which were published inCaravan on 20 and 21 November 2017. Mr Rohtagi has apprised thecourt that in ordering the discreet inquiry, the state took recourse to theprovisions of its Vigilance Manual. The Manual of Instructions providesEfor the procedure which is to be followed in conducting discreet inquiries.In the present case, following the newsreports published in Caravan, thedeath being of judge from the state judicial service, discreet inquirywas ordered particularly in the context of the innuendos contained in thenews reports. Quite apart from the Manual, the state government is notprohibited in law from holding such an enquiry in the exercise of itsFexecutive power.

43. The Commissioner of the State Intelligence Department soughtthe permission of the Chief Justice of the Bombay High Court “to recordthe say” of Judge Shrikant Kulkarni (Member Secretary, MaharasthraState Legal Service Authority), Judge Modak (Principal District Judge,GPune), Judge Barde (District Judge, City Civil Court, Mumbai) and JudgeRR Rathi (District Judge, Baramati). By communication of 23November 2017, the Registrar General stated that the Chief Justice hadgranted permission to do so. Following the receipt of permission, theCommissioner, SID wrote to the four judicial officers. They tendered -

signed statements.

44. The statement of Judge Kulkarni dated 24 November 2017 isextracted below:

“Reference: Your letter No-COI/PA/Loya/DE/2017-165.

Sir,

With reference to your letter, I hereby submit brief sequence/sayabout the unfortunate death of Shri BH Loya at Nagpur.

In the month of November – December 2014, I was working asRegistrar(Judicial -I), Appellate Side, High Court, Bombay. MrsSwapna Joshi was the Member Secretary, Maharashtra StateLegal Services Authority at that time and she was my PrincipalJudge while working in the City Civil Court, Mumbai. She hadinvited me, my colleague Shri SM Modak and Shri BH Loya whowere working in the City Civil Court, Mumbai for the wedding ofher son at Nagpur.

Accordingly, I alongwith Shri SM Modak and Shri BH Loya leftMumbai by train in night of 29[th] November, 2014 and reachedNagpur in the morning of 30[th] November 2014. We went to RaviBhavan Government Guest House where V.I.P. Suit was booked.

On the night of 30[th] November, 2014 we attended receptionarranged by Mrs Swapna Joshi on account of wedding of her sonand returned to Ravi Bhavan Government Guest House at about11.30 p.m. to 12.00 midnight.

Early morning of 1[st] December 2014 Shri Loya started complainingof chest pain. I called my another brother Judge from NagpurShri Barde by calling on his cell phone and asked him to rushimmediately to Ravi Bhavan Government Guest House with hiscar due to bad health of Shri Loya. Accordingly, Shri Barde withanother colleague Shri Rathi rushed to Ravi Bhavan GovernmentGuest House. It was about 4.00 to 4.15 am. Shri Waiker, Judgewas also informed about Shri Loya’s bad health.

We took Shri Loya to the nearby Dande Hospital by using car ofShri Barde where emergency treatment was given to Shri Loya.Shri Waiker, Judge also joined there by his car. However chest

pains continued. As per Doctor’s advice Shri Loya was requiredto be shifted to Cardiac Hospital. Accordingly, Shri Loya wasimmediately taken to Meditrina Hospital, Nagpur. We accompaniedwith him in the car. Shri Rathi who was working as DeputyRegistrar called his relative Doctor to rush at Meditrina Hospital.We rushed to Meditrina Hospital, however on the way Shri Loyacollapsed. We put him on the stretcher and took to the I.C.Uwhere Doctor started immediate treatment. After giving treatmentno response from Shri Loya was seen. Unfortunately, Shri Loyasuccumbed to death due to massive heart attack on early morningof 1[st] December 2014.

We communicated this unfortunate incident to the Hon’ble ShriJustice PR Bora as well as Hon’ble Shri Justice BR Gavai. Wealso informed the said unfortunate incident to Shri Sham Joshi,Principal Secretary to the Hon’ble The Chief Justice whose sittingwas at Nagpur that time. Hon’ble Shri R Gavai, Hon’ble ShriJustice SB Shukre and Hon’ble Shri Justice PR Bora immediatelyrushed to the Meditrina Hospital within half an hour. ThereafterHon’ble Shri Mohit Shah, The Chief Justice also arrived there.Thereafter, the dead body of Shri Loya was taken to theGovernment Medical College and Hospital for post-mortemexamination.

After post-mortem examination dead body was sent to native placeof Shri Loya in one ambulance. Two Magistrates from Nagpurwere also sent in another car to accompany dead body.”

The statement of Judge SM Modak, Principal District Judge, Pune dated24 November 2017 reads as follows:

“Sub : Discreet Verification in the death of Judge Shri Loya.

Ref : Your letter OW No. COI/PA/LOYA/DE/2017-165 Dated23/11/2017.

Respected Sir,

I received your above mentioned letter in the morning through thehands of your representative. It accompanies permission letterissued by Hon’ble Registrar General dated 23/11/2017. It is notaccompanied by any complaint/application/any document. You have

requested me to give my say in the captioned matter. There is gapof almost three years after the death of our brother Judge Loya.As per my memory I am giving sequence of events as follows :

a. I accompanied Judge Shri Shrikant Kulkarni and Judge Shri Loyaon 29/11/2014 for attending the marriage of son of Ladyship SmtJoshi (then Secretary MHALSA).

b. We left by train at the night. Ladyship Smt Joshi, her familymembers and few other judges were also travelled in the sametrain but in different compartments.

c. We reached Nagpur in the morning of 30/11/2014. Journey wascomfortable. It was through AC coach.

d. From station we went to Ravi Bhavan

e. After bath, myself accompanied Judge Shri Kulkarni to visit thequarters of Lordship Shri Shukre, Lordship Shri Borha. Judge ShriKulkarni intended to give invitation of his daughter’s marriage tothem. Even Judge Shri Loya accompanied us.

f. Even we have visited the house of Judge Shri Barde quarter atRavi Nagar.

g. After that and after some marketing, we returned Ravi Bhavan.We have to attend reception in the evening.

h. We attended the reception. There number of judges and even Fewlordship have attended the function.

i. After dinner, we returned Ravi Bhavan almost at about 11.30 pmto 12 midnight.

j. During our way back, we stopped at one square. I rememberJudge Mahajan was also with us but in different car. He offeredus famous pan. He left to his house as he had to catch night trainfor Mumbai and we returned to Ravi Bhavan.

k. We slept in one room. At about early morning probable at 4 amJudge Loya woke up. He was not feeling comfort. Myself andJudge Kulkarni called local judges probably Judge Barde and JudgeRathi.

l. I do not exactly remember both of them or single.

Am. In car we took Judge Loya to Dande Hospital. After initialcheckup, doctor advised him to shift him to another hospital

n. We shifted Judge Loya to another hospital. I do not remember thename. We shifted him in car. I also remember another localJudge Shri Waiker had also come in his car.

o. At the hospital doctors have declared him dead.

p. We have informed this fact to our judges at Hajiali colony.

q. We all were in shock. I do not exactly remember who informedthis fact to family members of Loya.

r. Few Lordship have also attended the hospital. Further events tookplace as per their directions.

s. Dead body was taken to Government Hospital for post mortem.

t. Then PDJ Shri Sonavane (now Lordship) had also come to hospitaland also for post mortem.D

u. Then PDJ Shri Sonavane deputed two local judges along withdead body.

v. We all were in deep shock. Myself and Judge Kulkarni met therelatives of Judge Loya at Hajiali colony after few days.E

w. During that period I was posted as P.D.J. at Alibag, Raigad.

I have narrated the events as per my memory. You have instructedyesterday on phone to give events today. I am handing over thisletter through hands of your representatives Shri Patil.”

FThe statement of Judge VC Barde, dated 24 November, 2017 reads asfollows:

“SUB: Your letter dt. 23.11.2017 for my Say, regarding occurrencedt. 1.11.2014 at Nagpur of sad demise of District Judge Shri BHLoya Sir,

GDear Sir,

With reference to the subject mentioned as above, I state that onthe above date, at about 4 A.M. I received call on my mobileNo. [REDACTED] from Shri S.D. Kulkarni Sir, Registrar of Hon’bleBombay High Court that I with my Car and Shri R.R. Rathi, Senior

Civil Judge, should come to Ravi Bhavan Govt. Guest House,where he, Shri Modak Sir District Judge, and late Shri Loya Sirwere staying having come from Mumbai. He said that Shri LoyaSir was having chest pains. Accordingly, I called Shri Rathi andproceeded to Ravi Bhavan.

Immediately, we the above 5 persons in the Car proceeded towardsDande Hospital. In the meanwhile, Shri S.D. Kulkarni Sir alsocalled Shri Waiker Sir, now retired District Judge. The medicalofficer on duty there checked up Shri Loya by ECG, BloodPressure etc. as per their procedure. Judge Shri Rathi has hisbrother in relation by name Dr Shri Pankaj Harkut, M.D. andD.M., as Doctor at Meditrina Multispecialty Hospital, whom hecould contract in the meanwhile, who said that we should come toMeditrina Hospital, where he would also come from his residence.Thereafter, we proceeded to Meditrina Hospital in 2 Cars.However, Shri Loya who himself sat in the Car, after some distancestarted Snoring-like in sleep, to whom Shri Kulkarni Sir stated toawake. When I took the Car in the porch of Meditrina Hospital,Shri Loya Sir did not awake and was rushed on stretcher to theICU of the said Hospital. He was immediately taken in and thedoctors started treatment. We stayed outside ICU. However, aftersometime the Doctor came out, and told that when Shri Loya Sirwas taken in ICU, his pulses were not working, and that theywere trying out their best to make him revive.

While Shri Loya Sir was in ICU, I tried to contact the friends ofShri Loya Sir at Haji Ali, Govt Colony, where he was residing.Shri O.K. Bhutada, Senior Civil Judge, could be contacted, whomthe entire occurrence was told. Shri Modak Sir and Shri KulkarniSir also contacted the other friends of Shri Loya Sir at Haji Ali,known to them and told the occurrence to them. Local judgeswere also called at Hospital. The Hon’ble High Court Judges,and Judges from District Judiciary, and some Court Staffapproached to the Hospital, and some were consulting the Doctor.Judge Shri Bhutada from Mumbai, provided my mobile number tothe near relatives of Shri Loya Sir, and by making call to me, toldthat I should inform the happenings at Hospital to such near

relatives, if they contact me. Some relatives contacted me, towhom I told the happenings, and that they may come to Nagpur.

After about 6.a.m. the Doctor came out of ICU and declared thatShri Loya Sir is no more. Thereafter, the Judges gathered theresaw his body. The police also approached the Hospital. Thereafter,Bat or about 10 p.m. the dead body was taken for post-mortem atGovt. Medical College by police. I in my car went there, wherethe Judges of District Judiciary also gathered. After the postmortem was over, after 11 a.m. the dead body was sent in anambulance to the native place of Shri Loya.

Shri Loya, being my Senior Colleague and residing in neighbouringbuilding No. 11 of Haji Ali. Govt. Colony and I in building No. 13in the same colony during my posting for 2011 to 2014, I was wellacquainted with him, and performed by moral duty to take him inthe hospital with other learned officers to provided all the possiblehelp.”

The statement of Judge RR Rathi dated 23 November 2017 reads asfollows:

“Upon request of Shri Sanjay Barve, Commissioner SID, Mumbaiand as Hon’ble High Court of Bombay granted permission to giveEsay, I am stating the fact know to me regarding Judge Shri BrijgopalHarikishnan Loya.

Myself R R Rathi Adhoc District Judge, Baramati on dated1.12.2014 was working as 5th Civil Judge Shri V Barde phonedme on mobile and asked for my help by stating that Judge Loya isnot feeling well and is at Ravi Bhavan, so we should help him.FHearing the same and in order to help, being local Judge, I wasimmediately ready. Mr Barde came to my quarter in his car andwe then immediately went to Ravi Bhavan.

At Ravi Bhavan Judge Shri Modak and Shri Shrikant Kulkarniwere also present. At that time Judge Loya was attending naturescall. Thereafter he came down and told that he is having heartburn and having ache in his heart and requested for help.Thereafter we all present there went in the car and Mr Barde. Atthat time some of them also called for help of Judge Waiker. Healso followed us. Then we went to the nearest hospital at Ravi

Nagar i.e. Dr Dande Hospital that hospital was on 1[st] Floor andso we all climbed stairs and were there. One assistant doctor waspresent there. Mr Loya complained about severe chest pain. Hisfact was sweating and he was continuously telling about severechest pain and heart burn. At that time the doctor tried to do hisECG but the nodes of ECG machine were broken. Doctor triedand wasted sometime but machine was not working. I think hegave 2 injections to Mr Loya. I asked the doctor he said it ofantacid and painkiller. Mr Loya was again complaining chest pain.I called my brother (cousin) Dr Pankaj Harkut, who is cardiologistbut his phone ringed but he did not picked my phone. Aftersometime he called me and I told him all these things. Heimmediately told me to brought him to Meditrina Hospital atRamdaspeth Nagpur. It was 5.00 am, approx. that time. ThereafterI sitted in car of Judge Waiker. Mr Loya sitted in the car of Bardeand Shri Kulkarni and Modak accompanied the. Thereafter weproceeded to Meditrina Hospital. At Meditrina Hospital when wereached that time Mr Loya was unconscious and was unable tospeak. Then he was taken inside hospital for treatment. ThereafterDr Pankaj Harkut also came there. Mr Loya was treated at thathospital. After sometime we came to know that Mr Loya sufferedheart attack. Thereafter we came to know that he died. It wasvery unfortunate that Mr Loya died and I was very upset to knowthis. Hence this say.”

The submissions analysed

45. frontal assault has been launched on the statements of thefour judicial officers by learned counsel appearing on behalf of thepetitioners on the ground that the procedure of obtaining the permissionof the Chief Justice was completed within one day and the statementswere submitted by the four judges on the next day. Two of the judges(Judge Shrikant Kulkarni and Judge Barde) were based in Mumbai whilethe other two (Judge Modak and Judge Rathi) were based at Pune andBaramati.

46. We are unable to subscribe to this line of submissions. TheChief Justice of the Bombay High Court granted permission to theCommissioner of the State Intelligence Department to record the say ofthe four judicial officers. The matter was of importance.A discreet inquiry

ABC

Ahad been ordered by the state government in view of the articles whichwere published in Caravan regarding the death of judicial officer. Threeof the statements specifically refer to the letter to the Commissionerwhile the fourth refers to the request which has been made by theCommissioner and the permission which has been granted by the HighCourt. There was no reason for the four judicial officers to procrastinateBor delay the submission of their statements. There is no basis whatsoeverto make any imputation against the four officers of the state judiciary.They were present with Judge Loya at Nagpur to attend wedding inthe family of colleague.Each of them responded, as judges of the districtjudiciary, to the permission which was granted by the Chief Justice ofCthe High Court to the Commissioner, SID to record their say. The judgeshave spoken about the facts of the case as they could recall, with details.We have extracted each of the four statements fully, as they stand.Each of the judges has spoken in detail of the facts and events whichwere within their personal knowledge. The statements contain mattersof detail which would be known to those who were present with JudgeDLoya. They have ring of truth. They had nothing to conceal nor an axeto grind. Three of the statements are dated 24 November 2017 while thefourth submitted by Judge Rathi is dated 23 November 2017 and containsan endorsement of receipt by the Commissioner on 24 November 2017.The fact that two of the judges were respectively at Pune and BaramatiEis absolutely no ground to cast doubt.The statements were submittedwith dispatch. Reading them it is clear that they have been submittedwithout pre-meditation. The four judicial officers acted responsibly. Therewas no reason for them either to hasten or to cause delay in submittingtheir versions of what they knew. Each of the four judges has acted witha sense of duty. This is how they would be expected to conductFthemselves, in answering to call of duty.

47. One of the submissions which has been urged by Mr Dave tocast doubt on the statements is that an article was published in the IndianExpress in which the statements of two judges of the High Court (JusticeBhushan Gavai and Justice SB Shukre) were published. Mr DaveGsubmitted that the statements of the judicial officers cannot be regardedas independent, in view of the fact that two judges of the High Court hadtaken the same view as elicited in the Indian Express article, that thedeath of Judge Loya was due to natural causes. Mr Dave submitted thatjudicial officers in the district judiciary could not be expected to take

plea at variance with what was stated by the two judges of the HighCourt. He urged that disciplinary action should be initiated against thetwo High Court judges. This submission is preposterous. It constitutesanundisguised attempt to malign four senior judicial officers and the judgesof the High Court. What the submission glosses over is that the article inthe Indian Express was published on 27 November 2017 and that waswhen the statements attributed to Justice Gavai and Justice Shukre werepublished. The statements of the four judicial officers are dated on 23and 24 November 2017 and were in fact received by the Commissionerof the SID on 24 November 2017 much before the Indian Expressarticle was published. We are mentioning this aspect because the line ofsubmissions in this case indicates an unfortunate attempt to use everypossible ploy to cast aspersions on members of the district and higherjudiciary. That senior counsel chose with all seriousness to make thosesubmissions without sense of responsibility, and without verifying thebasic facts reveals disturbing state of affairs. We must express ourdisapproval in no uncertain terms.48. Learned counsel appearing on behalf of the petitioners aswell as the intervenors have sought to question the course of actionwhich was followed by the judicial officers after Judge Loya complainedof chest pain in the early hours of 1 December 2014. Why, they havequeried, was he taken to Dande hospital initially and not to specialisedcardiac care facility when it was available within radius of 5 kilometresof Ravi Bhavan. This line of argument is without merit. Judge Loya, asthe statements of Judge Kulkarni and Judge S M Modak indicate,complained of chest pain at about 0400 hours on 1 December 2014. Hiscolleagues who were with him took decision in good faith to take himto Dande hospital which is in close proximity to Ravi bhavan. The issuein the present case is whether Judge Loya died natural or unnaturaldeath. To attribute motives to his colleagues who were with him andtook immediate steps to shift him to hospital nearby is absurd, if notmotivated. In hindsight, it is easy to criticise actions which are taken byhuman beings when faced with an emergency. It is easy for an observersitting in an arm-chair at distant point in time to assert that wisdom layin an alternate course of action. That can never be the test for judginghuman behaviour. The conduct of the colleagues of Judge Loya inattending to him is not in question. They did their best under thecircumstances, acting entirely in good faith. At Dande hospital, the medical

Aadvise was that the condition of Judge Loya required him to be shifted toa specialised cardiac hospital. Judge Rathi who was attached to theNagpur Bench of the High Court at the material time was with JudgeKulkarni and Judge Modak when he was shifted to the hospital, as wasJudge Waikar. Dr Pankaj Harkut who was relative of Judge Rathi wasa cardiac consultant attached to the Meditrina hospital. Judge RathiBcontacted him on phone and it was at his suggestion that the judges tooka decision to shift Judge Loya to Meditrina. To find fault with the judgesfor this course of action is unacceptable. But there is another and moreserious aspect of the line of submissions which has been urged. Thoughas we have noted earlier, the proceedings have been purportedly institutedCto protect the independence of the judiciary, this is one more instancewhere behaviour in court belies the ostensible position of the petitioners,intervenors and their counsel. It is as if the judicial officers are in thedock.We have no hesitation in rejecting that attempt. Mr Rohtagisubmitted before the court that this line of argument of the petitioners

and intervenors would postulate that the judicial officers are co-Dconspirators. In fact, it was so argued by counsel assisting Mr Giri. Thisis neither the case in the pleadings of the petitioners nor is there anymaterial on the record which can even remotely suggest such aninference. We must emphatically reject such attempts on the part of thepetitioners and the intervenors to malign judicial officers of the districtEjudiciary. They acted in good faith to ensure medical treatment to theircolleague. Their conduct cannot be questioned.49. Similarly, considerable degree of emphasis has been placedon the statement of Judge Rathi that the nodes of the ECG machine atDande hospital were not working. Based on this, it has been seriouslyFurged that in fact no ECG was done at Dande hospital. Judge ShrikantKulkarni in his statement dated 24 November 2017 has stated that“emergency treatment” was given to Judge Loya at Dande hospital.Judge SM Modak states that after an initial check-up, the doctors atDande hospital advised shifting the patient to another hospital. JudgeVijay Barde who was present at Dande hospital specifically stated thatGthe medical officer on duty there examined (“checked-up”) Judge Loya“by ECG, blood pressure etc. as per their procedure”. Judge Rathi hasstated that at Dande hospital, time was wasted because the nodes of theECG machine were broken and the machine was not working. Thisstatement of Judge Rathi must, however, be weighed with the doctor’s

progress notes at Meditrina hospital. The death summary (extractedearlier) specifically adverts to the fact that the patient was taken toDande hospital earlier where an ECG was done. Dr Dande has madethe same statement. The progress notes also note “tall ‘T’” in theanterior lead which indicates that the ECG was seen by the doctorsattending to Judge Loya at Meditrina hospital. These progress notes arecontemporaneous, since they also form part of the communicationaddressed by Dr NB Gawande at Meditrina to the PSI at Sitabardi onthe same day after the judge had been brought dead to the hospital. Asa matter of fact, it is this very ECG which forms the subject matter ofthe submissions which have been urged by one of the intervenors, forwhom Mr Prashant Bhushan appears. Having regard to the fact that theECG has been specifically mentioned in the progress notes of the doctorat Meditrina hospital, we find no reasonable basis to infer that no ECGwas done at Dande hospital.

50. The statements of the four judges are called into question byMr Dave, counsel for the petitioners, pointing out certain allegedinconsistencies. It has been urged that the Caravan article states that nocar was available at 4 am on 1 December 2014 at Ravi Bhavan andhence Judge Loya was transported by an auto-rickshaw to Dandehospital. Mr Dave criticised the conduct of the judicial officers andsubmitted that it is inconceivable that at government guest house, carand driver would not have been available even in the early hours of themorning. The submission lacks merit. Judge Kulkarni has stated thatJudge Loya was taken in Judge Barde’s car to Dande hospital. JudgeModak also notes that Judge Loya was shifted by car to Dande hospitaland thereafter to Meditrina. This is confirmed in the statements of JudgeBarde and Judge Rathi. The allegation that Judge Loya was not providedeven car to travel from Ravi Bhavan to Dande hospital and onwardsto Meditrina is red-herring.

51. Another submission urged by Mr Dave is that the judicialofficers did not meet the family of Judge Loya in Mumbai soon after thedeath. Judge Modak in his statement observes that he and Judge Kulkarnimet the relatives of Judge Loya at his Haji Ali residence after fewdays. The suggestion that this is callous, is unfortunate, besides beingincorrect. It must be remembered that the family of Judge Loya hadproceeded to Gategaon for the funeral. Can the circumstance that JudgeKulkarni and Judge Modak met the family few days later in Mumbai

Ahave bearing on their sense of humanity, as Mr Dave urged? Theobvious answer is in the negative.

52. Then it was sought to be urged that if Judge Loya had suffereda heart attack around 0400 hours, he would not be wearing trouser andshirt which the inquest report records. This is another submission whichBhas been urged to cast doubt on the sequence of events as set out in thestatements of the four judicial officers. Now close reading of JudgeRathi’s statement indicates that when he reached Ravi Bhavan and metJudge Modak and Judge Kulkarni, Judge Loya was attending to call ofnature. It is evident from the statement that Judge Loya, when he leftRavi Bhavan was not unconscious and was complaining of chest painCand heart burn. To urge that the depiction of the clothes worn by JudgeLoya casts doubt on the sequence of events narrated by the judicialofficers is hence untenable.

53. Another submission is that if the four judges had accompaniedJudge Loya to hospital, then as colleagues they would not have indicatedDhis name to be Brijmohan instead of Brijgopal. This is but another attemptto cast doubt on the version of the four judicial officers without asubstantive basis or foundation. Judge Loya was taken to hospital in anemergency. The normal course of human events would indicate that hisfour colleagues would be more concerned about getting Judge LoyaEattended than filling up an admission form. mistake did occur in recordinghis name as Brijmohan instead of Brijgopal. In our view, this cannot be aground to discredit the detailed factual narration made by the four judicialofficers who were with him. Two of them – Judge Kulkarni and JudgeModak – were with Judge Loya from the time that the three officers leftMumbai for the wedding at Nagpur and until Judge Loya died on 1FDecember 2014. They have provided trustworthy account of theirschedule since they left Mumbai. All of them travelled together, stayedtogether, visited local judges at Nagpur, attended the wedding andremained in the company of each other and their friends in the judicialfraternity.

54. Ms Jaising sought to rely on photograph of room in RaviBhavan and wondered how three judges would have shared room.Judge Kulkarni has referred to the fact that VIP suite was booked atRavi Bhavan. Judge Modak and Judge Barde support the position. Theaccount provided by the judge cannot be discredited on the basis of

surmises. The occupancy register does show that the room was in thename of Judge Kulkarni. His account is that his two friends and colleagues(Judge Loya and Judge Modak) shared the accommodation with him. Itis unfair to disbelieve this account of colleagues in the district judiciary.They were friends, known to each other and had stayed together atRavi Bhavan during the short trip to Nagpur. No counsel has suggestedthat they were not closely acquainted to each other.

55. The date of the death in the post-mortem is not mentioned as7 December 2014, as submitted by Ms Jaising during the course of hersubmissions. The date of death is clearly mentioned as 1 December 2014.The hospital bill of Rs 4290 at Meditrina is criticised on the ground thatit contains, inter alia, neurological charges and charges for dietconsultation. It must be noted that the issue in the present case is notwhether the bill which was prepared at Meditrina amounts to negligence.The charge for dietary consultation is erroneous. But that cannot be aground to discredit the fact that Judge Loya was taken to Meditrina.That he was taken to Meditrina is clear from the documentary materialon the record and the consistent statements of all the four judicial officers.56. The handing over of the body to Dr Prashant Rathi cannot befaulted. The family of Judge Loya took considered decision that theywould proceed to his home town, Gategaon, for the funeral ceremonies.The report of the discreet inquiry contains an elaborate reference to thefact that Dr Prashant Rathi who was stationed at Nagpur was contactedby relative in Aurangabad, requesting his help on 1 December 2014.Dr Rathi has in his statement made factual explanation about how hewas contacted by his relative and asked to assist in the formalities forJudge Loya. The presence of Dr Rathi cannot be doubted, having regardto the contemporaneous documentary material including the accidentsummary.

57. Similarly, fair amount of critical comment has been devotedby counsel for the petitioners and intervenors to (i) why the family ofJudge Loya was not brought to Nagpur by flight from Mumbai afterthe death had occurred; and (ii) why, as alleged, in the Caravan article,the body reached Gategon for the funeral rights unaccompanied. It isnecessary to emphasise that both these submissions have no bearing onwhether the death of Judge Loya was due to natural causes or otherwise,

Asince they relate to events which took place after his death. But it isnecessary in the present judgment to discuss the submissions becauseona close analysis they are evidently unfounded. That the family of JudgeLoya did not travel to Nagpur after they received intimation of his death,is fact. If the family decided that the funeral should be held at theplace to which he belonged namely, Gategon near Latur, this was aBdecision personal to the family. Judge Loya had died.If considereddecision was taken by the members of his family to proceed to Gategoninstead of travelling first to Nagpur and then traversing distance ofnearly 450 kilometres by road to the place where the funeral was to beheld, such decision has to be respected. Moreover, the allegation thatCthe body was sent unaccompanied to Gategaon is contrary to what hasemerged on the record. Judge Kulkarni in the course of his statementmade reference to the fact that while the body was sent by an ambulanceto the place where Judge Loya originally belonged, two judicial officersfrom Nagpur were also sent in another car to accompany the body.

Judge SM Modak in his statement dated 24 November 2017 specificallyDnotes that Shri Sonawane, the Principal District Judge then at Nagpur,deputed two local judges to accompany the dead body. Judge VC Bardehas also stated that after the conclusion of the post-mortem at about 11am, the dead body was sent in an ambulance to the native place ofJudge Loya and two judges; Judge Rahangdale and Judge ChopdaEaccompanied the body. The report of the discreet inquiry by theCommissioner, SID contains the following observation:

“4.4 Mr Loya’s body was sent to village Gategaon in Latur in anambulance provided by Mr Pawankumar Bhagat, Ambulance-Incharge of Meditrina Hospital. Two magistrates [Mr YogeshFRahangdale & Mr Swayam Chopda) were sent by the thenPrincipal District Judge, Nagpur, Mr Sonawane along with themortal remains of Mr Loya to Gategaon, Latur. The question soughtto be replied vide CARAVAN report as “why was his body notaccompanied by anyone?... is clear attempt to mislead thereaders as the facts are otherwise.”G

58. There is no reason for this Court to doubt the statements ofJudge Kulkarni, and Judge SM Modak. Both of them and Judge Loyastayed at Ravi Bhavan guest house, where VIP suite was booked. Allthe three judicial officers were invited for wedding in the family of

colleague who in December 2014 was the Member Secretary ofMaharashtra State Legal Services Authority. Judge Kulkarni, JudgeModak and Judge Loya travelled together by the same train from Mumbaito Nagpur on 29 November 2014 and arrived in Nagpur on the morningof 30 November 2014. They proceeded to Ravi Bhavan where suitewas reserved. During the course of the day, the three judicial officersvisited the residences of two judges of the High Court at Nagpur, JusticeSB Shukre and Justice PR Bora. They visited the home of Shri Bardeand were together all along. They went to the market, returned to RaviBhavan and attended the wedding reception in the evening. After dinnerthe three judges returned to Ravi Bhavan little before midnight. JudgeModak is also clear in the details that he offers.All the three judges whowere accompanied by Judge Mahajan stopped by at pan shop beforethey came back to Ravi Bhavan. The fact that all the three judges stayedtogether is the consistent account which emerges from the statementsof Judge Modak and Judge Kulkarni which is corroborated by thestatement of Judge Barde. There is no basis for the court to doubt theveracity of the natural account of the above three judicial officers (JudgeKulkarni, Judge Modak and Judge Barde). The court is requested to doso on the ground that the entry in the register at Ravi Bhavan mentionsthe name of Judge Kulkarni but does not contain any reference to theoccupancy of Judge SM Modak or Judge Loya. Judge Kulkarni hasexpressly stated that VIP suite was booked at Ravi Bhavan. We mustlean in favour of the version of the four judicial officers unless strongand indisputable circumstances are shown to doubt their credibility. Thiswould be in the larger public interest, to uphold the independence andintegrity of the institution. This is corroborated by photocopy of theoccupancy register which has been produced on record. All the threejudicial officers were invited for the same event. If as friends andcolleagues, they decided to share one room, that cannot be regarded asan unnatural course of conduct. There is no reason for this court todiscard the consistent statements of the three judicial officers by engagingin surmises of the nature which are sought to be drawn by counsel forthe petitioners. In fact, though nothing would turn on it, it is matter ofsome interest that even the article that was published in the Caravan on20 November 2017 records Judge Loya having had conversation withhis wife on the night of 30 November 2014 and informing her of the factthat he was staying at Ravi Bhavan together with the judges who hadaccompanied him to Nagpur.

CDEFG

A59. At this stage, we must also make reference to certain othermatters to which reference has been copiously made on behalf of thepetitioners to cast doubt on the circumstances in which Judge Loya haddied. The first submission is that contrary to the directions that wereissued in the judgment of this Court in its decision in CBI v AmitbhaiAnil Chandra Shah (supra), JT Utpat who was nominated by theBAdministrative Committee of the Bombay High Court to preside overthe criminal trial was transferred on 25 June 2014. It has been urgedthat since the Court had on 27 September 2012 directed that theAdministrative Committee would ensure that the trial is conducted fromthe beginning to the end by the same officer, JT Utpat ought not to haveCbeen transferred. We must note at this stage that Mr Dave appearing onbehalf of the petitioners has categorically stated that the court should inthe present proceedings, confine itself to the issue as to whether JudgeLoya had died natural death or otherwise. The issue as to whetherJudge JT Utpat could have been transferred has no bearing on thecircumstances in which Judge Loya died. Mr Rohtagi appearing on behalfDof the State has urged that the trial was yet to begin and hence thetransfer of Judge JT Utpat on his request cannot be faulted. We clarifythat it is not necessary to express any opinion on the submission of MrRohtagi since we are of the view that the transfer of the earlier judgeand the appointment of Judge Loya in June 2014 has no bearing onEwhether Judge Loya’s death on 1 December 2014 was due to naturalcauses.

60. The petitioners have sought to rely upon the allegations againstthe then Chief Justice of the Bombay High Court, Shri Justice MohitShah made by the father and sister of Judge Loya. Reliance has alsoFbeen placed on hand-written note dated 18 February 2015 purportedlyscribed by Anuj Loya after meeting with the Chief Justice of theBombay High Court, who had come to visit the family. The videorecording of an interview given to Caravan by the father and sister ofJudge Loya was also handed over to the court on pen drive. Themembers of the family of Judge Loya have disassociated themselvesGfrom the statements attributed to them in the Caravan publication. Thevideo recording, which we have seen, contains snippets of an interview.Evidently, only part of the interview has been produced. The allegationsagainst the Chief Justice of the Bombay High Court are hearsay.

61. During the course of his submissions in rejoinder, Mr Davehas attempted to discredit the discreet inquiry conducted by theCommissioner of the SID urging that the statement of Dr Prashant Rathiwas recorded on 22 November 2017 by the Police Inspector (Crime)police station Sadar, before the state government had ordered discreetinquiry on 23 November 2017. The submission is based on the hypothesisthat the statement of Dr Rathi was recorded as part of the discreetinquiry. This is seriously disputed by Mr Rohtagi who urged that thestatement was recorded by the Sadar police station on 22 November2017 after the articles in the Caravan had appeared on 20 and 21November 2017. The discreet enquiry was held by the Commissioner,SID. Be that as it may, the presence of Dr Prashant Rathi is establishedin the accidental death summary (AD 00/14) dated 1 December 2014, inthe inquest report, the receipt executed on 1 December 2014 by Sitabardipolice station on handing over the dead body, and in the accidental deathsummary (AD 44/14) recorded by Sadar police station at 1600 hours on1 December 2014. In the face of the contemporaneous documentarymaterial, the statement of Dr Rathi recorded on 22 November 2017cannot be construed as something which casts doubt on the validity ofthe discreet inquiry.

Application for cross-examination

62. During the course of his submissions, Mr Dave moved anapplication for cross-examination of the following persons whosestatements were recorded during the course of the discreet inquiry:

“1 Mr Sajeev Barve, Director General/Commissioner, StateInteeligence Department, Maharashtra,

2 Dr Prashant Bajrang Rathi, Resident of Sai Regency, Ravi Nagar,Nagpur,

3 Mr Niranjan Takle, Reporter of CARAVAN,

4 Shri Srikant Kulkarni, Member Secretary, Maharashtra StateLegal Service Authority,

5 Shri SM Modak, Principal District Judge, Pune,

6 Shri Vijay Barde, Additional Sessions Judge, City Civil andSessions Court, Greater Bombay,

7 Dr Pinak Gangadhar Rao Dande, Ram Nagar, Nagpur,

A8 Shri Anuj Brij Gopal Loya s/o Late Sh. BH Loya,

9 Smt Sharmila Brij Gopal Loya w/o Sh BH Loya

10 Shri Hari Kishan Ramchandra Loya, f/o Late Sh BH Loya,

11 Dr Anuradha Balaprasad Biyani, sister of Late Sh BH Loya.”

63. Order IX of the Supreme Court Rules 2013 deals withAffidavits. Rules 1 and 2 provide as follows:

“1. The Court may at any time, for sufficient reason, order thatany particular fact or facts may be proved by affidavit, or that theaffidavit of any witness may be read at the hearing, on suchCconditions as the Court thinks reasonable:

Provided that where it appears to the Court that either party bonafide desires the production of witness for cross-examinationand that such witness can be produced, an order shall not bemade authorising the evidence of such witness to be given byDaffidavit.

2. Upon any application evidence may be given by affidavit; butthe Court may, at the instance of either party, order the attendancefor cross-examination of the deponent, and such attendance shallbe in Court, unless the deponent is exempted from personalEappearance in Court or the Court otherwise directs.”

Rule 1 empowers the court to allow facts to be proved on affidavit forsufficient reason. However, if the court is of the view that the productionof witness for cross-examination has been desired by party bonafide and that such witness can be produced, an order shall not be madeFauthorising the evidence of the witness to be given by affidavit. Underrule 2, discretion is vested in the court to order the attendance forcross-examination of the deponent of an affidavit. Under Order IX, adiscretion is vested in the court to allow cross-examination of personwho has filled an affidavit. party to proceeding before this court –particularly proceeding under Article 32 – cannot demand as of rightGthe production of person, who has filed an affidavit, for cross-examination. Whether cross-examination should be allowed has to bedetermined by the court having regard to the interests of justice. MrDave submitted that this court should, in the first place, direct that theabove persons should file affidavits before this court and that upon the

filing of those affidavits, they should be produced for cross-examinationby him. In support of his submissions Mr Dave relied few decisions ofthis court. In K. K. Kochunni v State of Madras (supra) this Courtheld:

“12… it is possible very often to decide questions of fact onaffidavits. If the petition and the affidavits in support thereof arenot convincing and the court is not satisfied that the petitioner hasestablished his fundamental right or any breach thereof, the Courtmay dismiss the petition on the ground that the petitioner has notdischarged the onus that lay on him. The court may, in someappropriate cases, be inclined to give an opportunity to the partiesto establish their respective cases by filing further affidavits or byissuing commission or even by setting the application down fortrial on evidence, as has often been done on the Original sides ofthe High Courts of Bombay and Calcutta, or by adopting someother appropriate procedure. Such occasions will be rare indeedand such rare cases should not, in our opinion, be regarded as acogent reason for refusing to entertain the petition under Article32 on the ground that it involves disputed questions of fact.”

In CS Rowjeev State of AP[24 ]this Court held:

“16. It is, no doubt, true that allegations of mala fides and ofimproper motives on the part of those in power are frequentlymade and their frequency has increased in recent times. It is alsosomewhat unfortunate that allegations of this nature which haveno foundation, in fact, are made in several of the cases whichhave come up before this and other courts and it is found thatthey have been made merely with view to cause prejudice or inthe hope that whether they have basis in fact or not some of it atleast might stick. Consequently it has become the duty of theCourt to scrutinise these allegations with care so as to avoid beingin any manner influenced by them, in cases where they have nofoundation in fact. In this task which is thus cast on the courts itwould conduce to more satisfactory disposal and considerationof them, if those against whom allegations are made came forwardto place before the court either their denials or their version of thematter, so that the Court may be in position to judge as to whether

BCD

EFG

Athe onus that lies upon those who make allegations of mala fideson the part of authorities of the status of those with which thisappeal is concerned, have discharged their burden of proving it.In the absence of such affidavits or of materials placed beforethe Court by these authorities, the Court is left to judge the veracityof the allegations merely on tests of probability with nothing moreBsubstantial by way of answer. This is precisely the situation inwhich we find ourselves in the present case.”

Reliance was placed on the decision in Sher Singh in Re[25].

The submission which has been urged is based on mis-appreciationboth of the role of the petitioners and on the scope of these proceedings.CThe petitioners have moved this court in petition filed in the publicinterest. Their position is that of relator who seeks to bring grievanceto the attention of the court for the purpose of seeking court mandatedinquiry. None of the persons whose cross-examination has been soughtis witness in the present proceedings. The court is essentially requiredDto consider to whether case has been made out on behalf of thepetitioners (supported by the intervenors) for directing an inquiry intothe circumstances leading to the death of Judge Loya. As part of thisprocess, the court has to decide as to whether the inquiry which hasbeen conducted by the state is vitiated and if circumstances have beenbrought to the notice of the court which cast reasonable suspicionEabout the events leading upto the death of Judge Loya. The petitionerscannot assert as of right that they should be allowed to cross-examine ahost of persons including the doctors and judicial officers. By castingunfounded aspersions on the judicial officers who had accompanied JudgeLoya, the petitioners have revealed the real motive of these proceedings

Fwhich is to bring the judiciary into disrepute on the basis of scurrilousallegations. We find no basis or justification to allow the request forcross-examination.The application shall accordingly stand rejected.

Intervention by Centre for Public Interest Litigation

64. Mr Prashant Bhushan appeared in these proceedings at theGstage of the rejoinder. This was after the learned counsel appearing onbehalf of the petitioners and intervenors had addressed the court and thecourt had heard submissions on behalf of the State of Maharashtra. TheCentre for Public Interest Litigation which Mr Prashant Bhushan

25(1997) 3 SCC 216H26I.A.No.31086 of 2018

represents as counsel has sought to intervene by an application[26]. Theapplication relies on report in Caravan published on 11 February 2018stating that the post-mortem and histo-pathology reports were sent to aforensic expert, Dr RK Sharma, formerly attached to AIIMS, and thatDr Sharma has ruled out the possibility of the death being due to heartattack. Moreover, it has been stated that the documents indicate signs oftrauma to the brain. Hence, it was urged that poisoning cannot be ruledout. The application for intervention states that the intervenor obtained aset of documents from Caravan, including the histo-pathology reportand copy of the ECG done at Dande hospital. Mr Prashant Bhushanclaims to have forwarded the ECG and histo-pathology report to DrUpendra Kaul, former professor of Cardiology at AIIMS. Mr PrashantBhushan himself addressed an e-mail to Dr Upendra Kaul seeking hisprofessional opinion on certain queries. Dr Kaul responded that the ECG“most unlikely.. has no evidence of recent myocardial infarction”.Moreover, it has been stated that the histo-pathology of the heart mostlyindicates that it was normal and that the coronary artery block in theLAD “could be” an innocent bystander. The application for interventionalso states that Mr Prashant Bhushan who is member of the intervenorhas spoken to other reputed cardiologists who are of the same opinion.

65. The affidavit in support of the application for intervention hasbeen sworn by Mr Prashant Bhushan personally. Mr Prashant Bhushanappeared on behalf of the intervenor as its counsel during the course ofthe hearing and not as party in person.

66. In response, Mr Mukul Rohtagi has placed on the record copiesof two letters dated 14 and 16 February 2018 addressed to Dr SidharthGupta, Head of the Department of Forensic Medicine at AIIMS by theSenior Police Inspector at PS Sadar, Nagpur. clarification wasspecifically sought in regard to the opinion furnished by Dr RK Sharma.In response dated 3 March 2018, Dr Abhishek Yadav, AssistantProfessor and Member Secretary, Departmental Committee, Departmentof Forensic Medicine, AIIMS has stated that besides constituting acommittee of three doctors to examine the issue, AIIMS had addresseda letter seeking clarification from Dr RK Sharma. The letter extractsthe following reply sent by Dr RK Sharma to AIIMS:

“Thanks for your mail, I would like to state that I have been grosslymisquoted by Caravan magazine regarding death of Judge Loya.

[2018] 9 S.C.R.

AThe conclusions drawn are imaginary. I had general discussionwith the reporter. I do not agree with contents of report publishedwhich are ascribed to me. I have not given any report regardingdeath of Judge Loya.”

The letter dated 3 March 2018 from AIIMS accordingly contains theBfollowing clarification:

“In continuation of the previous reply dated 16.2.2018, it is addedthat no doctor from the Department of Forensic Medicine hasgiven any opinion about the death of Judge Loya in official orindividual capacity to the Caravan Magazine or any other mediaCagency. It is further reiterated that AIIMS New Delhi has fixedprotocol to respond only to official written request from theGovernment agency or Honourable Court with all the Mandatorycorroborative investigating documents including Medical

Documents for Medicolegal opinion and without the same holisticopinion can’t be formed for the perusal by law.”D

The clarification issued by AIIMS indicates that Dr Sharma hascategorically stated that he was grossly misquoted by Caravan magazineand that he does not agree with the contents of the report ascribed tohim. It may also be noted that by previous reply dated 16 February2018 Dr Sidharth Gupta of AIIMS had stated thus:E

“In reference to above, Kindly note that, AIIMS, New Delhi hasa fixed protocol to respond only to the official written requestfrom the government investigating agency or Honourable courtwith all the MANDATORY corroborative investigating documentsincluding medical documents, details of scene investigation alongFwith the interaction with the doctors who conducted the post-mortem, for medico legal opinion, since without the same, holisticopinion can’t be formed for the perusal by law.”

From the material on the record it is evident that an effort has beenmade by Mr Prashant Bhushan to collect evidence to somehow bolsterGthe case of the petitioners, acting in his personal capacity. questionnairein the form of leading questions was addressed by him to Dr UpendraKaul, formerly at AIIMS, upon which reply was obtained. The courthas been apprised of the fact that following this, the senior police inspectorat Sadar police station addressed communication on 11 February 2018

to Dr Harish Pathak, Professor and Head of the Department of ForensicMedicine, KEM Hospital, Mumbai seeking his opinion on the basis ofthe report of the Regional Forensic Science Laboratory, the ECG, MLCpapers and Meditrina hospital documents and histo-pathology report ofthe Government Medical College. In response, Dr Pathak by his e-maildated 14 February 2018 sought additional documents. These werefurnished by the Senior Police Inspector, Sadar. Dr Harish Pathak has ina detailed and considered opinion categorically stated that the conclusionof the post-mortem that the death was due to coronary artery insufficiencyis valid and is in accordance with medical knowledge on the subject.The opinion has been supported by references to medical texts.

67. The opinion of Dr Harish Pathak is extracted below:

“I have carefully perused the following documents:

1. Autopsy note of Shri Loya

2. ECG report

3. Histopathology report.

4. ADR.

5. Panchnama.

6. C.A. Report.

7. Statement of Dr Rathi, Dr Gavande, Dr Harkut, Dr Ganar.

8. Hospital (Meditrina) reports (Progress notes & MLC).

9. Two Articles from the Caravan magazine dated 26/01/18 &11/02/18.

Based upon all the documents made available to me and the recentmedical literature, I would like to state as under:

1. As per Doctor’s progress notes of Meditrina Hospital(Annexure, 1 Page 1) and statement given by Dr PankajHarkut (Annexure 2, Page 2),

On 01[st ]December 2014, at around 04 am (As per Autopsynotes). When Mr Brijgopal Loya complained of chest painand restrosternal pain. (Doctor progress Notes Annexure 1)

According to Principles of Internal Medicne, Harrison,

(Annexure 3, Page 4) Chest discomfort is among the mostcommon reasons for which patients present for medical attentionat either an emergency department or an outpatient clinic.Retro-sternal pain is the typical clinical feature of myocardialischemia (Annexure 3, Table on Page 5). Chest discomfortassociated with Myocardial Infraction is typically more severe,is prolonged usually lasting more than 30 minutes and is notrelieved by rest (Annexure3, Page6).

According to Oxford Dictionaries, (URL:https://oxforddictionaries.com/definition/us)

Retro-sternal: Behind the breastbone. (Annexure 4, Page7)

(Retrosternal chest pain is pain felt behind the sternum bone-aflat bone located in the middle of the chest. This bone mayalso referred to as the breastbone)

Myocardium: The muscular tissue of the heart. (Annexure5,Page 8)

Ischemia :An inadequate blood supply to an organ or part ofbody, especially heart muscles. (Annexure 6, Page 9)

Infraction: Obstruction of the blood supply to an organ or regionof tissue, typically by thrombus or embolus, causing local deathof tissue. (Annexure 7, Page 10)

2. The ECG showed tall “T-waves” in the anterior leads. Thisis consistent with the history indicative of myocardial ischemia.

According to Principles of Internal Medicine, Harrison,

Tall, positive hyperacute T waves are the earliest stages ofischemia. (Annexure 8, Page 12)

3. DOCTOR’S PROGRESS NOTES (Annexure 1 Page 1)indicate that Mr Brijgopal Loya was brought to MeditrinaInstitute of Medical Sciences with cardiac arrest in collapsedcondition.

In spite of all resuscitative measures, he could not be revivedand declared dated at 06:15 am on 01/12/2017 at MeditrinaHospital. (Annexure 1, Page 1, Annexure 16 Page 32,

Annexure 17, Page 34)

4. According to the statement of Dr Pankaj Harkut, Directorof Cardiology centre at Meditrina Institute of Medical Sciences,he had reviewed the ECG from Dhande Hospital which in hisopinion showed tall T-Waves. (Annexure 2, Page 2a)

As per, American Journal of Emergency Medicine (2007),Hyperacute T wave, the early sign of myocardial infraction;25, 859. El -859. e7

The three main differential diagnoses of HATW (hyper acuteT waves) on electrocardiogram are : (i) left ventricularhypertrophy, (ii) hyperkalemia and (iii) early repolarizationvariant. (Annexure 9, Page 13)

5. As per the statement of Dr Ninad Gavande, MBBS, MDFMT, attached as honorary medico-legal consultant at MeditrinaHospital he had reviewed all relevant documents before thebody was forwarded for autopsy examination. (Annexure 16,Page 33)

The body was shifted to Government Medical College mortuaryand Panchnama was done wherein no external marks of injurieswere noted.

6. Autopsy examination was conducted on 01-12-2017 from10:50am to 11:55 am at Government Medical College Nagpur,by Dr N K Tumram, who was then working as lecturer atForensic Medicine Department, Nagpur.

At autopsy examination, no external marks of injuries werefound and on internal examination, following significantobservations were made.

7. With regard to autopsy notes and observations therein, myopinion on the findings with their medico-legal interpretationand relevance along with authorities which are being attachedas annexures.

7A “Dura congested”

According to Snell’s Textbook of Anatomy, Dura is fibrous

tissue (Annexure 10, Page 15)

It does not have blood supply in order to show the signs ofcongestion.

Autopsy surgeon is expected to see if dura is intact andprobably he meant to comment the Meanings, which are theouter coverings of brain and their congestion in normally seenin most of the cases of sudden cardiac deaths.

Hence the entire argument in caravan magazine aboutcongestion of Dura and thereby it being the indication of headinjury is unscientific, and devoid of any rationale.

7B. “Heart congested, weighing 320 grams – Evidenceof atherosclerosis in left coronary and left anteriordescending coronary artery with calcification and luminalnarrowing of 100 percent 01 cm distal to its origin and90 % 02cm distal to its origin respectively. Evidence ofhypertrophy of left ventricle present”.

According to Principles of Internal Medicine, Harrison,

Myocardial ischemia also can occur if myocardial oxygendemands are markedly increased and particularly whencoronary blood flow may be limited, as occurs in severe leftventricular hypertrophy due to aortic stenosis.

“..an increase in oxygen demand due to left ventricularhypertrophy secondary to hypertension and reduction inoxygen supply secondary to coronary atherosclerosis andanemia. Abnormal constriction or failure of normal dilation ofthe coronary resistance vessels also can cause ischemia.’(Annexure 11, Page 17)

7C. “Large vessels intact, evidence of atheroscleroticchanges present in the inner walls of arch of aorta.,ascending aorta” – No comment is required.

7D. “Abdomen- All organs were congested and stomachcontains 10 ml of yellowish juicy material, with no peculiarodour” – No comment required.

8. Routine vescera were preserved for chemical analysis and

the report of the same did not reveal any presence of poison.Pieces of brain, lungs, liver, heart, spleen, both kidneys, leftdescending aorta were preserved for histopathologyexamination. The result of histopathology examination are notinconsistent with the observations at autopsy examinationdescribed and explained as above.

As to claims made by Newspaper Article:

8.1. No Claim of Myocardial Infraction in the Histopathologicalreport (The Caravan, Annexure 19, Page 46)

· The earliest signs of Myocardial Infraction which can bedetected through naked eyes and histopathologicalexamination appears not before 12 to 24 hours after thesurvival after acute coronary insufficiency. (Annexure 12,Page 20)

· Dr Bernard Knight, in his book KNIGHT’S FORENSICPATHOLOGY writes, “Most sudden deaths from Coronaryartery insufficiency do not have Myocardial Infraction, evenwhen the most sophisticated techniques are employed for itsdetection. Neither do the majority have coronary thrombosis,though severe coronary stenosis is by definition present.(Annexure 12, Page 23)

· narrowing of the lumen to 01mm or lesser at minimum ofone point is required to diagnose of Ischemic Heart Disease.(Annexure 13, Page 25)

· The lesions associated with atherosclerosis can be gradedfrom Grade I to IV, based on percentage of narrowing oflumen of Coronary artery, where Grade IV signifies thickeningand calcification of wall of coronary artery with narrowingof lumen more than 75 %. (Annexure 13, Page 26).

· Significant obstruction of the coronary artery lumen requires75 % narrowing of the lumen (Forensic Pathology, VincentJ DiMaio, Annexure 14, Page 28)

In the present case, severe stenosis (Narrowing) in leftcoronary 100 % and left anterior descending 90 % wasobserved and noted at autopsy. The findings are consistent

96SUPREME COURT REPORTS

[2018] 9 S.C.R.

Awith the cause of death due to acute coronary insufficiency.Hence I do not find any merit in the said argument.

8.2 Once coronary arteries are calcified, one cannot die dueto heart attack (The Caravan, Annexure 19, Page 46)

· This is highly unscientific interpretation as calcified arteriesBcan be blocked by the dislodges thrombus and I find no meritin it and disagree with this opinion.

8.3 Once person alive for 30 minutes after symptoms conditionof heart will have clear signs, (The Caravan, Annexure19, Page 47)

· Nowhere in the medical literature I have come across suchobservation. In fact, the earliest signs do not appear before12 hours. (Annexure 12, Page 20)

· The fact gross changes in the myocardial tissue appears onlyD18-24 hours post ischemia/infarction. (Practical CardioVascular Pathology, Mary N Sheppard Annexure 15, Page31

8.4 No conclusive evidence of coronary artery insufficiency.(The Caravan, Annexure 19, Page 47)

E· Following evidences are sufficient to reach to the conclusionof acute coronary insufficiency:

a. Initial symptoms narrated by the deceased to the witnessesand the doctors at first hospital.

b. ECG findings.F

c. Coronary Artery Blockage seen at autopsy

Hence, I find no merit in the argument and disagree with thesame.

8.5 Blood stains over neck, cloths are indicative of heart injuryG(The Caravan, Annexure 19, Page 47)

· According to inquest panchnama and post mortem report,there deceased was wearing Grey Full Sleeve Shirt and bluecolor jeans pant with black belt. There is no mention of anyblood stains.

· When clothes are put back on the body after autopsy by themortuary attendants, the precision and neatness of clothingcannot be compared to the way living person may dress.

· After autopsy examination is over, the incisions over neck,chest, abdomen and head on the dead body are sutured afterputting the dissected organs back in to the cavities. In spiteof every precaution being taken to make sure that there is noleakage of post mortem blood from the stitched post mortemwounds, sometimes, minor leakage of blood tinged body fluidcan happen. The chances of such leakage become high whenbodies are being transported for long distances as it hadhappened in the present case.

8.6 Every single item is congested hence possibility ofpoisoning. (Annexure 19, Page 17)

This is absolutely unscientific opinion. In case of suddencardiac deaths when heart suddenly stops beating, presenceof congestions of almost all the organ is an expected finding.In fact, congestion is such common and nonspecific findingin many cases that one cannot in ordinary course of naturemake much significant interpretation of it.

8.7 Question about chain of custody. (The Caravan,Annexure 19, Page 47)

· The bottles containing viscera for chemical analysis arealways sealed by medical officer and handed over to the police.If Chemical analyser observes any tempering with the seal,he reports about the same. Since no such report exists, itwould be unreasonable and unjustifiable to doubt sanctity ofevidence.

8.8The Deceased had healthy life style and no family historyof heart disease hence could not have died due to suddencardiac arrest at the young age of 48 years. (Caravan,Annexure 19, Page 48)

· Family history of cardiac illness only makes person moreprone to the risk of cardiac disease but does not rule out thepossibility of the same among the persons without such history.

[2018] 9 S.C.R.

A9.Conclusion:

On carful perusal of all documents made and relevant medicalliterature on the subject, it is my opinion that,

1. Late Shri Brijgopal Harikisan Loya died due to acute coronaryinsufficiency, which was sudden natural death.B

2. There was no evidence to suggest any inconsistencies in thehistory, clinical findings and autopsy report made available tome.

3. Claims of foul play and suspicions in the articles in The CaravanCmade are unscientific and incorrect, as explained by me inthis report with relevant references.

Dr Harish M PathakProfessor & HeadForensic Medicine & ToxicologySeth GSMC & KEM Hospital, Mumbai.”

68. We are not really considering here whether the opinion of DrPathak should be preferred to what was opined by Dr Kaul. The pointof the matter is that facts have emerged from the record which indicatethat carefully orchestrated attempt has been made during the courseof these hearings on behalf of the Centre for Public Interest Litigation toEcreate evidence to cast doubt on the circumstances leading to thedeath of Judge Loya. In their practice before this court, Counsel areexpected to assist the court with sense of objectivity in aid of justice.What has happened here is that Mr Prashant Bhushan has adopted adual mantle, assuming the character of counsel for the intervenor aswell as an individual personally interested on behalf of the interveningForganisation of which he is member. He has gone to the length ofpersonally collecting evidence to somehow bolster the case. The mannerin which the opinion of Dr Kaul was obtained on the basis of laconicquestionnaire leaves much to be desired and is singular reflection onthe lack of objectivity which is to be expected from counsel appearingGbefore this Court. This has bordered on an attempt to misrepresent thefacts and mislead the court.69. During the course of his submissions, Mr Dave filed beforethis Court compilation, inter alia, consisting of proceeding instituted

under Section 482 of the Cr PC (Criminal Application 824 of 2014) beforethe Nagpur Bench of the Bombay High Court by five petitioners forquashing criminal case pending on the file of the Joint Civil Judge,Junior Division and JMFC, Nagpur. The fourth petitioner in the proceedingis Devendra Gangadhar Fadnav is, the Chief Minister of Maharashtra.The case relates to an incident which took place on 7 June 1991 onaccount of the removal of certain construction in Nagpur. As result,two crimes came to be registered for offences under Sections 147, 148,149, 294, 448,324, 336 and 427 of the Penal Code. The Division Benchof the High Court noted, that though the incident was of 1991, not muchprogress has been made in that case and with the passage of time, thedispute was amicably settled between the parties who are residents ofNagpur localities. The Bench of the Bombay High Court at Nagpur,consisting of BR Gavai and VM Deshpande, JJ, relied upon decisionof this Court in Narinder Singh v State of Punjab[27 ]and held thus:

“The Apex Court in the case of Narinder Singh and Others vsState of Punjab and Others, (2014) 6 SCC 466 has laid downvarious guidelines to be followed by this Court while exercising itspower under Section 482 of the Code of Criminal Procedure forquashing criminal proceedings. One of the guidelines laid downby the Apex Court is that normally this Court would not entertainan application for quashing the proceedings wherein an elementof public law is involved. In the present case, perusal of the recordwould reveal that the proceedings came to be initiated againsteach other out of dispute which is purely private and where noelement of public law is involved. Another guideline laid down isthat if there is no possibility of trial being culminated into conviction,this Court should exercise powers under Section 482 of the Codeof Criminal Procedure to give an end to the criminal proceedings.Since the parties have agreed to give an end to the dispute amongstthemselves, there is not even remote possibility of trial endinginto conviction. We, therefore, find that it would be in the interestof justice to accept the settlement between the parties and to givean end to the criminal proceedings so that the parties are in aposition to maintain peace and harmony in the area where theyreside.”

AThe criminal case was accordingly quashed. Mr Dave has gone to theextent of insinuating that one individual is controlling the entire judiciaryin Maharashtra and elsewhere.

70. We are rather surprised at the manner in which an insinuationhas been made by producing the above order, which was passed inBcompletely unrelated proceedings. The insinuation is against the judgesof the Bombay High Court at Nagpur for having quashed criminalcase in which the present Chief Minister was involved. We are not calledupon to evaluate the merits of the decision, save and except to note thatthe High Court in quashing the proceedings placed reliance on decisionof this Court and had noted that the dispute was admittedly private inCnature where no element of public law was involved. The attempt of thepetitioners is to create prejudice and to malign the dignity of the judges,particularly of Justice BR Gavai. Copies of the criminal application andof the order of the Bombay High Court form part of the same compilationin which is also annexed copy of the article published in the IndianDExpress of 27 November 2017, referring to the statements of JusticeGavai and Justice Shukre. This is another instance in the course of thehearing of the present case where matter extraneous to the subject ofthe inquiry before the court has been sought to be relied upon to somehowsensationalise the case. What is worse is the manner in which whollyunfounded aspersions have been cast on the judges of the Bombay HighECourt following decision which has been taken in the judicial capacity.This constitutes serious attempt to scandalise the court and obstructthe course of justice.

Public Interest Litigation

F71. Public Interest Litigation has developed as powerful tool toespouse the cause of the marginalised and oppressed. Indeed, that wasthe foundation on which public interest jurisdiction was judiciallyrecognised in situations such as those in Bandhua Mukti Morcha vUnion of India[28]. Persons who were unable to seek access to the judicialprocess by reason of their poverty, ignorance or illiteracy are faced withGa deprivation of fundamental human rights. Bonded labour and undertrials (among others) belong to that category. The hallmark of publicinterest petition is that citizen may approach the court to ventilate thegrievance of person or class of persons who are unable to pursue their28(1984) 3 SCC 161H

rights. Public interest litigation has been entertained by relaxing the rulesof standing. The essential aspect of the procedure is that the personwho moves the court has no personal interest in the outcome of theproceedings apart from general standing as citizen before the court.This ensures the objectivity of those who pursue the grievance beforethe court. Environmental jurisprudence has developed around the rubricof public interest petitions. Environmental concerns affect the presentgeneration and the future. Principles such as the polluter pays and thepublic trust doctrine have evolved during the adjudication of public interestpetitions. Over time, public interest litigation has become powerfulinstrument to preserve the rule of law and to ensure the accountabilityof and transparency within structures of governance. Public interestlitigation is in that sense valuable instrument and jurisdictional tool topromote structural due process.72. Yet over time, it has been realised that this jurisdiction is capableof being and has been brazenly mis-utilised by persons with personalagenda. At one end of that spectrum are those cases where public interestpetitions are motivated by desire to seek publicity. At the other end ofthe spectrum are petitions which have been instituted at the behest ofbusiness or political rivals to settle scores behind the facade of publicinterest litigation. The true face of the litigant behind the façade is seldomunravelled. These concerns are indeed reflected in the judgment of thiscourt in State of Uttaranchal v Balwant Singh Chaufal[29]. Underliningthese concerns, this court held thus:

“143. Unfortunately, of late, it has been noticed that such animportant jurisdiction which has been carefully carved out, createdand nurtured with great care and caution by the courts, is beingblatantly abused by filing some petitions with oblique motives. Wethink time has come when genuine and bona fide public interestlitigation must be encouraged whereas frivolous public interestlitigation should be discouraged. In our considered opinion, wehave to protect and preserve this important jurisdiction in the largerinterest of the people of this country but we must take effectivesteps to prevent and cure its abuse on the basis of monetary andnon-monetary directions by the courts.”

73. The misuse of public interest litigation is serious matter of

Aconcern for the judicial process. Both this court and the High Courts areflooded with litigation and are burdened by arrears. Frivolous or motivatedpetitions, ostensibly invoking the public interest detract from the timeand attention which courts must devote to genuine causes. This courthas long list of pending cases where the personal liberty of citizens isinvolved. Those who await trial or the resolution of appeals against ordersBof conviction have legitimate expectation of early justice. It is travestyof justice for the resources of the legal system to be consumed by anavalanche of misdirected petitions purportedly filed in the public interestwhich, upon due scrutiny, are found to promote personal, business orpolitical agenda. This has spawned an industry of vested interests inClitigation. There is grave danger that if this state of affairs is allowed tocontinue, it would seriously denude the efficacy of the judicial system bydetracting from the ability of the court to devote its time and resourcesto cases which legitimately require attention. Worse still, such petitionspose grave danger to the credibility of the judicial process. This hasthe propensity of endangering the credibility of other institutions andDundermining public faith in democracy and the rule of law. This willhappen when the agency of the court is utilised to settle extra-judicialscores. Business rivalries have to be resolved in competitive marketfor goods and services. Political rivalries have to be resolved in the greathall of democracy when the electorate votes its representatives in andEout of office. Courts resolve disputes about legal rights and entitlements.Courts protect the rule of law. There is danger that the judicial processwill be reduced to charade, if disputes beyond the ken of legalparameters occupy the judicial space.

74. The present case is indeed case in point. Repeatedly, counsel

Ffor the petitioners and intervenors have attempted to inform the courtthat they have no personal agenda and that they have instituted theseproceedings to protect judicial independence. An aura of good faith hasbeen sought to be created by submitting that the true purpose of seekingan inquiry into the circumstances relating to the death of Judge Loya is

to protect the district judiciary. But as the submissions have evolved, itGhas become clear that the petition is veiled attempt to launch frontalattack on the independence of the judiciary and to dilute the credibility ofjudicial institutions. Judicial review is potent weapon to preserve therule of law. However, here we have been confronted with spate of

scurrilous allegations. Absent any tittle of proof that they are conspiratorsin murder the court must stand by the statements of the judicial officers.The judges of the district judiciary are vulnerable to wanton attacks ontheir independence.This court would be failing in its duty if it were not tostand by them.

75. We must in this context record what we have heard duringthe course of the submissions. Mr Dave has urged that (i) he wants tocross-examine the judges; and (ii) he does not believe the judicial officers.Aspersions have been cast on the Administrative Committee of theBombay High Court. This court has been called upon to issue notice ofcontempt to the judges on the Committee at the relevant time. Ms Jaisinghas joined the fray by requesting that this court to issue contempt noticesto the Administrative Committee of the Bombay High Court. Juniorcounsel appearing with Mr Giri went to the extent of urging that thejudicial officers whose statements were recorded during the discreetinquiry are suspect. Even the judges of this Bench hearing the presentproceedings, have not been spared from this vituperative assault on thejudiciary.

76. Mr Prashant Bhushan argued that because two of the judgesconstituting the present Bench (Justice AM Khanwilkar and Justice DYChandrachud) were judges of the Bombay High Court,they may haveknown the judicial officers who have submitted statements or JusticeBhushan Gavai and Justice SB Shukre. If this were to be the test, it israther ironical that the petitioners had instituted proceedings before theBombay High Court each of whose judges were expected to be facedwith the same situation. We informed Mr Bhushan that decision as towhether judge should hear case is matter of conscience for thejudge. There is absolutely no ground or basis to recuse. Judges of theHigh Court hear intra court appeals against orders of their own colleagues.References are made to larger Benches when there are differences ofview. Judges of the Supreme Court hear appeals arising from judgmentsrendered by judges of the High Courts in which they served, either asjudges or on appointments as Chief Justices. Maintaining institutionalcivilities between or towards judges is distinct from the fiercelyindependent role of the judge as adjudicator. We emphatically clarifythat on the well-settled parameters which hold the field, there is no reasonfor any member of the present Bench to recuse from the hearing. While

Ait is simple for judge faced with these kinds of wanton attacks towithdraw from case, doing so would amount to an abdication of duty.There are higher values which guide our conduct. Though Mr Bhushanultimately made it clear that he is not filing an application for recusal –and none has been filed – we have recorded what transpired to expressour sense of anguish at the manner in which these proceedings haveBbeen conducted. Serious attacks have been made on the credibility oftwo judges of the Bombay High Court. The conduct of the petitionersand the intervenors scandalises the process of the court and prima facieconstitutes criminal contempt. However, on dispassionate view of thematter, we have chosen not to initiate proceedings by way of criminalCcontempt if only not to give an impression that the litigants and the lawyersappearing for them have been subjected to an unequal battle with theauthority of law. We rest in the hope that the Bar of the nation is resilientto withstand such attempts on the judiciary. The judiciary must continueto perform its duty even if it is not to be palatable to some. The strength

of the judicial process lies not in the fear of coercive law of contempt.DThe credibility of the judicial process is based on its moral authority. It iswith that firm belief that we have not invoked the jurisdiction in contempt.

Conclusion

77. For the above reasons, we have come to the conclusion thatEthere is absolutely no merit in the writ petitions. There is no reason forthe court to doubt the clear and consistent statements of the four judicialofficers. The documentary material on the record indicates that the deathof Judge Loya was due to natural causes. There is no ground for thecourt to hold that there was reasonable suspicion about the cause orcircumstances of death which would merit further inquiry.F

78. The hearings commenced on 2 February 2018 and ended on16 March 2018. The batch of cases was heard on 2 February 2018, 5February 2018, 9 February 2018, 12 February 2018, 19 February 2018, 5March 2018, 8 March 2018, 9 March 2018 and 16 March 2018. Havingregard to the large volume of work, we had considered it appropriate toGlist the hearings at 2 pm on Mondays and Fridays, after the miscellaneouscases had been dealt with. The conduct of the petitioners and theintervenors is, as we have indicated, lacking in bona fides and reveals amisuse of judicial process.

79. The petitions shall stand dismissed.

80. The transferred cases and pending applications, if any, arealso disposed of.

Transferred Case (Criminal) No. 2 of 2018:

81 This Transferred case was heard together with theaccompanying group of cases[30] in which judgment has been deliveredBtoday. In so far as the circumstances relating to the death of Judge Loyaare concerned, all issues raised in that connection in the present caseshall stand governed by the judgment delivered by this Court. Since thecase also raises certain other matters (other than the death of JudgeLoya), learned counsel requested this Court to remit the proceedingsback to enable the petitioner to pursue before the High Court the reliefsCsought on matters other than the death of Judge Loya. We find therequest to be fair and proper. We accordingly direct that the presentcase shall be remitted back to the Nagpur Bench of the High Court ofJudicature at Bombay. However, we clarify that the circumstances relatingto the death of Judge Loya which have been dealt with by this Court inDthe judgment delivered today stands concluded and the High Court wouldbe at liberty to deal with other issues raised in the petition/case.

82. Ordered accordingly.

Divya Pandey

Matters disposed of.

30 WP (C)No. 19 of 2018, W P (C) No 20 of 2018, W P (C) No 73 of 2018 and TC (Crl.)No.1 of 2018