Judge Loya Hearing: “It is disappointing that those who are appearing for the State today are those who defended Amit Shah”, Dushyant Dave

The Supreme Court today heard the petitions seeking probe into the death of Central Bureau of Investigation (CBI) special judge, BH Loya.

A Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud heard Senior Advocate Dushyant Dave, who appeared for Bombay Lawyers Association.

Besides Dave, Senior Advocates V Giri and Pallav Shishodia appeared for the petitioners. Senior Advocates Mukul Rohatgi and Harish Salve appeared for the State of Maharashtra.

The hearing today was eventful as the earlier one, with Dave requesting the Court to direct the State to make their submissions on affidavit rather than placing reports in sealed cover.

“The report contains many factual inaccuracies and contradictions. There is a bundle of contradictions in the statements of four judges. Unless the report is brought on record on affidavit, how can I respond? It is very important that the report forms part of the record. So let the pleadings be complete”, said Dave.

Dave said that even if we assume that it is a natural death, there is nothing wrong in having an independent probe.

“There are serious things which emanate from the report. There is reference to ECG. However, there are various contradictions and it is not clear whether ECG was taken or not. Further, none of the police records refer to the presence of four judges (Four judges had come on record to state that they were with Judge Loya when he was taken to the hospital and subsequently passed away). Your Lordships should adjourn the matter for a week and ask them to respond on affidavit.”

Senior Advocate Mukul Rohatgi appearing for the State of Maharashtra interjected.

“This is completely incorrect. The judges were with Loya. Just because Caravan published an article which is completely false you cannot have a probe….Last hearing, the court asked all the parties to submit relevants documents. We have done so. They should argue the case now instead of asking for adjournment.”

“I don’t know of writ petitions being finally heard without pleadings being complete”, Dave responded.

Justice Chandrachud intervened and told Dave that the Bench would like to have a bird’s eye view of the matter before taking any decision. He, therefore, requested Dave to make his submissions whereupon Dave argued at length.

Dave began his arguments by referring to the  conflict of interest of Senior Counsel appearing for State of Maharashtra including Harish Salve.

“It is disappointing that the State is taking this stand [opposing a probe]. And what is even more disappointing is that all those who are appearing for State today have appeared for Amit Shah. But Your Lordships don’t want to hear that”, said Dave.

Dave then dealt with the history of the case, particularly the transfer of the judge, who was initially hearing the Sohrabuddin case and the subsequent death of Judge Loya who came to take the place of the transferred judge.

“A discharge application under Section 227 of the CrPC was filed by Amit Shah in 2013. The said application was first heard by Judge JT Utpat. The Judge fixed the matter for hearing on June 26, 2014. But before he could hear it on that date, he was transferred on June 25 by the Administrative Committee of the Bombay High Court.

The transfer of Judge Utpat was against the directions of this Court. This court had specifically directed that the case should be heard completely by one judge. So if the High Court wanted to make any change to that, it had the obligation to approach this Court and take permission.”

Dave then proceeded to trace the appointment of Judge Loya and his death.

Äfter that, the new judge allowed the discharge application in a serious case involving killings of three persons.

Dave then went on to cite various discrepancies in the report prepared by the Commissioner of State Intelligence.

“The Commissioner of Intelligence wrote to Chief Justice of the Bombay High Court seeking permission to record the say of the judicial officers, claiming that the four Judicial officers had accompanied Judge Loya to the hospital. This by itself exposes the fact that such a conclusion was reached without holding an inquiry…

If they (the four judges) were with the judge, then why did they not call Judge Loya’s wife. Why did they not take the judge to a better hospital. Why did they take him to a shady hospital?”

Further, Dave also cited the delay in taking the judge to the hospital.

“He complained of chest pain at 4 am and was declared brought dead 6.15 pm. What were they doing for more than two hours? They did not inform the family also.

If my colleague falls ill, it is my natural instinct to find out which is the best hospital nearby and take him there.”

He then cited the Death Investigation Report prepared by the Sitabardi police station as per which deceased was recognized by Dr. Prashant Rati.

“Dr. Rati’s statement makes not mention of the four judges being present at that time”.

Rohatgi once again intervened demanding,

“Are you saying that the four judges are not saying the truth?”

“Yes, I am. Let the four judges file their statements. The State is shying away from putting things on record [before Supreme court] because they know the consequences”, responded Dave.

Dave also cited the discrepancies in the name of Judge Loya.

“The name in all the records of the hospital was changed from Brij Mohan Harikishan Loya to Brijgopal Harkishan Loya. If the four judges were there how could they have got the name wrong?”

This led to another intervention by Rohatgi.

“He is going in making false statements. Wife of judge Loya has stated that Judge Modak called her at 5 am stating that Loya has chest pain”.

Dave took exception to Rohatgi’s interruptions retorting,

“Mr. Rohatgi keeps interrupting. Judge Modak himself has stated that he does not remember who exactly informed the news to Loya’s family”, Dave said and proceeded to read out Judge Modak’s statement –

‘At the hospital doctors have declared him dead. We have informed this fact to our judges at hajiali colony. We all were in shock. I do not exactly remember who informed this fact to family members of Loya’

Dave then requested that the Court should call the Judge Loya’s wife, brother, father and son to Supreme Court and talk to them in chambers.

“The wife, son, brother, father should be called here and Your Lordships should speak to them in-chamber.”

Dave also proceeded to explain the alleged shortcoming in the post mortem report and government guest house register.

“This case requires serious consideration and should not be thrown out at the threshold”, submitted Dave before concluding his arguments.

Subsequently, Senior Advocate V Giri commenced arguments for petitioner Tehseen Poonawalla when the Court rose for the day.

The matter will now be heard next Monday at 2 pm.

Read Dushyant Dave’s written submissions below.