( Several questions regarding the death
of Judge Loya will remain unanswered forever.
This judgment is the “ADM Jabalpur” moment of the modern day Supreme
Court.)
Prologue.
The
most disturbing event in the great epic Mahabharata is the disrobing of Draupadi
which happens in the royal court of Hastinapur. The naive Yudhishthira,
intoxicated with the game of dice, wagered his wife Draupadi and lost her to
Kauravas. Faced with abject humiliation in the Kaurava court, Draupadi
looked up to Bhisma, the patriarch, for saving her honour. Draupadi questioned
the right of Yudhishtira to place a bet on her, and expected Bhisma, the
conscience keeper of Hastinapur, to deliver justice. But Bhisma let her down. Without
addressing the broader issues of justice and morality, he chose to go by narrow
confines to law to hold that the bet of Yudhishtira was valid and proper.
Failing to summon courage to listen to his conscience, Bhisma peered helplessly
while Drapuadhi was being disrobed, until divine intervention saved her honour.
The
recurrence of this event happens at times in modern day India, when the Supreme
Court of India, the conscience keeper of our country, acts like the failed
Bhisma, to helplessly watch the humiliation of constitutional values. A case on
point is the recent verdict in the Judge Loya case,
where Supreme Court conclusively held that there was no foul play in his death
and rejected the prayer for independent probe.
The baffling procedure of fact-finding by SC
Though
the Supreme Court was considering the prayer for a court-monitored
investigation into the circumstances surrounding the death of Judge B.H Loya,
the Court acted as if it was conducting a criminal trial as a fact finding
Court of first instance; but, without observing the basic and fundamental rules
of evidence and fair trial! In the beginning itself,
the judgement made it clear that the Court had permitted parties to produce documents
without being bound by
technicalities of procedure. It actually meant
that Court accepted statements which are not sworn on oath. There were no
affidavits filed; no cross-examinations permitted. The judgement is totally premised upon the statements issued
by four judicial officers, and also the ‘discreet enquiry’ conducted by the
Maharashtra Government, which are wholly accepted like gospel truth to declare that Judge Loya died due to natural
causes. The Supreme Court regarded the statements of judicial officers
unimpeachable, and therefore no opportunity of cross-examination was afforded. The evidence gathered by the ‘discreet
enquiry’’ ought to have been tested judicially on the touchstone of contra
evidence, by weighing it against the suspicious circumstances pointed out by
the petitioners. Alas, the Court did not
deem it necessary to venture into such efforts. Therefore, a lot of questions
still linger, without proper closure. Those buried questions, which ought to
have pricked a robust judicial conscience, are detailed as below.
Why
there was no proper inquest?
One
of the main points urged by the petitioners to doubt the official version was
that there was no proper inquest carried out on the dead body of Judge Loya in
the manner provided in Section 174 of the Code of Criminal Procedure( Cr.P.C).
The petitioners specifically pointed out that as per Section 174(1) Cr.P.C, the inquest of dead body has to be performed
in the presence of Executive Magistrate.
Though the police registered a case under Section 174, there was no
intimation given to Executive Magistrate. Admittedly, the inquest was carried
out by the police themselves, without informing the Executive Magistrate. Hence,
the evidentiary value of the inquest report, which did not record any finding
of bodily injuries, was called into question.
This
was an important issue, as the inquest report was admittedly prepared without
the presence of Executive Magistrate, resulting in violation of Section
174. Curiously, the information to
Executive Magistrate(SDM Nagpur) was given only on 2nd February
2016, almost one year after the incident. This certainly raises the eyebrows of
any reasonable person.
But,
the Supreme Court dealt with this question in a very casual manner, as can be
seen from paragraphs 27 to 31 of the judgment. Though several Supreme Court
judgements explaining the scope of inquest are discussed, no advertence is made
to the factual issue at hand, which is the failure to carry out inquest as per
Section 174 and its impact. The judgment proceeds on the in-built
assumption that the inquest report is valid. No explanation is given regarding
the violation of Section 174 in carrying out the inquest. No justification is
offered for belated information given to SDM Nagpur almost a year after the
death of Judge Loya. The issue is conveniently buried, without any answer
whatsoever, much less a convincing answer.
The
curious appearance of Dr. Prashant Rathi.
Dr.
Prashant Rathi is a key-person in the events. It was Prashant Rathi who
identified the body of Judge Loya at the time of inquest as well as
post-mortem. It was Prashant Rathi who received the body of Judge Loya after
post-mortem as ‘relative’. It was on the basis of identification by Prashant
Rathi that the Supreme Court holds that the identity of body on which inquest
and post-mortem was performed was undisputed. But, who is Dr. Prashant
Rathi? How did he come in the scene? How could he collect the body of Judge
Loya as relative?
Prashant
Rathi comes into picture through a convoluted route. As per the ‘discreet
enquiry’ report, one Ishwar Govindlal Baheti of Latur was a family friend of
Judge Loya ( The enquiry report states that there are two other persons by
the name of Ishwar Baheti in Latur, and therefore the report in Caravan
magazine that one Ishwar Baheti connected with RSS informed the family of the
death of Loya and made arrangements for transportation of body is stated to
have been based on confused identities. As per the enquiry report,Ishwar
Govindlal Baheti is said to have no links with RSS). So, this Ishwar
Govindlal Baheti got information from his brother Dr. Hansraj Govindlal Baheti
about medical condition of Loya during wee hours of December 1st
2014(But from whom Dr.Hansraj Baheti got information is not revealed in the
enquiry report). Thereupon, Ishwar Baheti called upon his relative in
Aurangabad, one Rukmesh Jakhotiya, who in turn informed Dr. Prasanth Rathi in
Nagpur to give necessary assistance to Judge Loya.
Thus,
it is clear that Prasanth Rathi was a total stranger having no prior
acquaintance with Judge Loya. Then how did he identify the body of Judge Loya
before inquest and post-mortem? How did he claim the body of Judge Loya after
post-mortem as a ‘relative’? This is a very fundamental fact raising
several doubts, especially in the light of the fact that the first name of
Judge Loya was mistakenly recorded in inquest and post-mortem reports as “Brijmohan”
instead of “Brijgopal”.
The
petitioners had also specifically raised the contention that handing over of
body to Prasanth Rathi was illegal, as he was not a relative as defined
in Section 176 of Cr.P.C.
Unfortunately,
the judgement does not bother to answer these issues and held that the
handing over of the body to Dr Prashant Rathi cannot be faulted, without any
convincing explanation (Paragraph 56). No answers were given as to how a
stranger like Dr.Rathi happened to reach
the scene and identified the body. It is also pertinent to note that the
initial police records do not mention anyone else except Dr.Prashant Rathi
along with the body of Loya. There names of judicial officers are conspicuous
by absence. Also, the statement given by Dr. Rathi to the discreet enquiry team
is dated November 22, 2017, which is before the date when state government
ordered discreet enquiry on November 23.
But, the SC did not deem it as a relevant fact, and chose to ignore it(
See, paragraph 61).
Discrepencies
in medical bill of Meditrina Hospital.
The
bill issued by Meditrina Hospital on 1st December 2014 contained
charges for neurosurgery and diet consultation.
How can such charges be levied if Judge Loya was brought dead to the
hospital? What was the reason for billing under the head ‘neurosurgery’, if
Loya died of cardiac arrest? In this backdrop, the alternate theory forwarded
by petitioners regarding head injury assumes importance. The sister of Judge
Loya, Anuradha Biyani had stated that she had found blood stains on the neck
and back of the shirt in the dead body. The alternate expert opinion procured
by Adv.Prasanth Bhushan suggested possibility of head injury. In that backdrop
, the entry regarding ‘neurosurgery’ was a circumstance requiring further
probe.
The
judgement acknowledged that billing for diet consultation was erroneous.
But, the Court held that the issue was not regarding any medical negligence on
the part of Meditrina Hospital, and closed the issue without much discussion(See,
Paragraph 55). Here, the Court terribly misdirected itself. The entries in the
medical bill contradicted the official version to a certain extent, and hence
the issue required deeper examination. It was not a question of medical
negligence on the part of hospital, but an issue of credibility of official
version. Unfortunately, the issue was
foreclosed, without any satisfactory explanation.
The
Legality of ‘Discreet enquiry’
‘Discreet
enquiry’ is a contradiction in terms. Enquiry/investigation has to be open and
transparent. The ‘discreet enquiry’
ordered by the State Government on November 23, 2017 and completed within five
days by November 28, 2017, was carried out by the Commissioner of State
Intelligence Department. There was
question regarding the statutory backing of such a ‘discreet enquiry’. This
‘discreet enquiry’ was not carried out as per the provisions of the Code of
Criminal Procedure. Under what provisions of law the statements of the judicial
officers were taken? Which statute gives legal sanctity to such an
enquiry? The SC settled all these issues
with a bald statement that executive power of the state authorized such enquiry(Paragraph
42). But can such an enquiry report without the backing of legislation be
admitted as evidence in Court? It is
well-settled that investigation carried out by an officer who is not
specifically authorised by statute is non-est in the eyes of law. However, these questions were not at all
addressed.
Discrepancies regarding ECG report
The
official version heavily relied on the ECG report prepared in Dande Hospital
for stating that Judge Loya died of natural causes. Curiously, this ECG Report of Dande Hospital, where Loya
was taken initially before Meditrina Hospital, was not produced in the Supreme
Court proceedings. It may be worthwhile to recall that in the Indian Express story published on November 27, to counter the revelation in The
Caravan Magazine, a picture of the ECG report was shown. But the ECG report
shown in the report carried the date November 30, 2014, which was a day before
the death of Loya. Hence, this report was widely criticised in social media as
inauthentic. Anyhow, the ECG Report did not form part of documents submitted in
Court by Maharashtra Government.
But,
the Court relied upon the records of Meditrina Hospital, which had referred to
an earlier ECG Report. Thus, it was without seeing the primary document that
the Supreme Court accepted conclusions of ECG report.
In
this regard, it is pertinent to highlight the inconsistency in the statements
of judges regarding ECG done at Dande Hospital. Judge Rathi, in his statement,
categorically mentioned that the ECG in Dande hospital was not working as its nodes
were broken(See, Page 73). But, the other judges stated that ECG was taken from
Dande hospital. This is a glaring inconsistency, which was not given much
relevance by the Supreme Court for unconvincing reasons. The Court chose to go
by the statements of other judges and the records of Meditrina to hold that ECG
test was performed at Dande Hospital, though the primary document was never
produced before the Court for its examination( para.49)
Why
the request for cross-examination was denied?
The
petitioner’s request for cross-examining persons connected with the case- the
doctors, judicial officers, police officers- was not taken in the right spirit
by the Court. The Supreme Court treated the request with utmost hostility, as
could be gathered from the seething rage contained in the words of judgement.
The petitioner’s were seen as launching a “frontal assault” on judiciary. “The
petitioners cannot assert as of right that they should be allowed to
cross-examine a host of persons including the doctors and judicial officers.”-
stated the Court categorically. And the
reason for this was a perceived motive of the petitioners to malign judiciary.
By casting unfounded aspersions on the judicial officers
who had accompanied Judge Loya, the petitioners have revealed the real
motive of these proceedings which is to bring the judiciary into disrepute on the
basis of scurrilous allegations. We find no basis or justification to allow
the request for cross-examination(emphasis supplied, para.63)- this
was the purported reason. It was further
stated as follows :- We must lean in favour of the version of the four
judicial officers unless strong and indisputable circumstances are shown to
doubt their credibility. This would be in the larger public interest, to
uphold the independence and integrity of the institution,(emphasis
supplied, para 58). Therefore, the primary concern of the court was to preserve
its image, than to arrive at truth.
The petitioners raised reasonable questions about the
statements of judges, which arise in the mind of any prudent person, such as :-
·
The unusual fact that Judge Loya’s name is not mentioned
anywhere in the register of Ravi Bhavan, and the fact that none of the judges
mentioned the room number in which they stayed in their statements.
·
The unusualness in three judges sharing a single room despite
in Ravi Bhavan Guest House, despite
availability of other rooms.
·
The unusualness in the judges who shared room with Loya
calling another judge stationed in Nagpur when Judge Loya experienced chest
pain, instead of contacting emergency care from the reception of Guest House
for urgent medical attention.
·
The unusualness in Judge Loya being clad in shirt, jeans and
black-belt at the time of death, though it is stated that he experienced chest
pain while at sleep.
·
The unusualness in going to Dande Hospital at first, which is
not a speciality hospital, despite availability of other specialist hospitals
nearby.
·
The unusualness in Judge Loya’s first name being wrongly
entered in medical records, despite the claim of judges accompanying him.
·
The inconsistency in the statements of Judge Rathi and other
judges regarding ECG taken from Dande hospital.
·
The unusual fact that none of the judges are mentioned in the
police records as persons accompanying Judge Loya
These are probable doubts. The SC strived on its own to
explain all these doubts through a strenuous point-by-point rebuttal made in
paragraphs 43 to 62. However, it is not the job of the Court to explain
inconsistencies and doubts. The explanations should voluntarily come from the
mouth of those who gave the statements. It is not for the Court to iron out the
inconsistencies and fill up the blanks. In normal course, these doubts ought to
have been sufficient to order investigation, unless the Court itself decides to
play an inquisitorial role by conducting inquiry itself, in which event it
should have permitted cross-examination and adducing of contra evidence.
It is very unfortunate that the request for cross-examination
antagonized the Court. The Court was even reluctant to direct filing of sworn
affidavits. Regarding the importance of
cross-examination the Supreme Court itself has observed that cross –
examination is one of the most useful and efficacious means of discovering the
truth and failure to provide an opportunity will no doubt result in grave prejudice
and failure of justice. To arrive at the truth, its veracity should be judged
and for that purpose cross - examination is an acid test. It tests the
truthfulness of the statement made by a witness on oath in examination - in -
chief. Its purpose is to elicit facts and materials to establish that the
evidence of witness is fit to be rejected(Mohd. Hussain @ Julfikar Ali v. State
(Govt. of NCT) Delhi, (2012) 2 SCC 584).
It is not unusual for judges to be cross-examined. In criminal
trials, Magistrates who record statements and confessions under Section 164
Cr.P.C are generally put to cross-examination. Therefore, the resistance of SC
to the demand appeared highly unusual. Without affording any such opportunity,
the Court entered unilateral findings that the statements of judicial officers
have a “ring of truth” and that “they had nothing to conceal and no axe to
grind”.
Misplaced concerns about petitioners’ bona-fides.
The judgement was highly critical of the conduct of the
petitioners’ lawyers, and doubted the bona-fides of the petitioners. “The
petition is a veiled attempt to launch a frontal attack on the independence of
the judiciary and to dilute the credibility of judicial institutions “ “The conduct of
the petitioners and the interveners scandalises the process of the court and
prima facie constitutes criminal contempt.” “Even the judges of this Bench
hearing the present proceedings, have not been spared from this vituperative
assault on the judiciary”-these were some of the observations of the Court.
It is true that the hearings often witnessed
charged exchanges between lawyers, often stepping out of permissible limits.
But, that was not a one-way traffic on the part of petitioners’ lawyers alone.
It is rather strange that the Court, which was quick to admonish the conduct of
petitioners’ lawyers, overlooked some glaring ethical short-comings on the part
of respondents’ lawyers. Dushyant Dave had pointed out in court that Harish
Salve cannot be permitted to appear for State of Maharashtra, as he had
appeared for Rubabbuddin Sheikh( the brother of deceased Sohrabuddin Sheikh)
and Amit Shah in different proceedings arising out of the same case( It was
pointed out in an earlier
article
in Live Law as well).
There was some
seeming conflict of interest on the part of Pallav Sisodia, the counsel for one
of the petitioners,
as he had appeared
for Amit Shah in an earlier proceeding connected with Sohrabuddin-Tulisram
encounter case. (The strange manner in which Pallav Sisodia turned hostile to
his own petition by giving up the demand for probe was commented upon by an
article in Live Law). But,
the SC did not deem it necessary to advert to such glaring ethical issues.
Justice Chandrachud
remarked
during a hearing day that those issues are better left to the individual
conscience of lawyers.
At the same time, the
Court admonished Prashant Bhushan for making RTI applications to forensic
experts seeking opinion on Judge Loya’s post-mortem report, on the ground that
he behaved without “objectivity” and
has gone to the length of personally collecting evidence to somehow
bolster the case. Bhushan’s request for recusal of Justice Khanwilkar and
Justice Chandrachud from the bench on the ground of their acquaintance with judicial
officers who gave statements irked the Court. Dushyant Dave’s references to the manner
in which Administrative Committee of Bombay High Court violated Supreme Court
order by transferring Judge Utpat,
predecessor of Judge Loya, and also to the proceedings by which a criminal case
against Maharashtra CM Devendra Fadnavis was quashed by a bench headed by
Justice B.R Gavai (who had given interview to Indian Express on November 27
ruling out foul play in Loya’s death), etc also invited the wrath of the bench
that “unfounded aspersions have been cast on the judges of the Bombay High
Court”. Without caring to assess the
merits of the allegations, the Court shut down the issue on the ground that
allegations against judges were raised. On the other hand, the transgressions
of other lawyers were let off saying that it was a matter of “individual
conscience”. In any case, even if the
conduct of petitioners’ lawyers was not proper, is the Court justified in
citing it as a reason to throw out the petitions obfuscating the merits of the
underlying matter?
Also, the Court had once remarked that the
case was “serious” and had expressed faith in the bona fides of the petitioners.
If a judge in district judiciary has died
and there are several media reports seeking an investigation, urging us to look
at it and intervene, it becomes serious enough for us to examine the records,
but we can’t act only on the basis of media reports.” , Justice
Chandrachud,
remarked
once regarding the very same case. On the hearing held on February 19, the CJI
Dipak Misra
observed
that the locus and bona fides of the petitioners are not being questioned.
Therefore, the contrary findings
in the
judgement are surprising.
Anyhow,
the conclusive finding entered by the Court that Judge Loya died of natural
causes does not inspire confidence. The judgement lacks cohesion and
objectivity, and is largely based on an unverified trust on the statements of
judicial officers and the ‘discreet enquiry’ by Maharashtra Government. The
Court ought to have seen that the petitioners’ were praying for an independent
investigation, and for ordering investigation, it is enough to raise reasonable
suspicion of commission of offence. There is no need to establish the offence
with all materials for seeking investigation.
But all the questions were shut down with the “discreet enquiry report”
produced by the state government, which was treated as inviolable truth. The
judgement, with its constant invocation of the theory that judicial officers
will not make false statements, fails to satisfy an inquisitive and discerning
mind. Several questions regarding the
death of Judge Loya will remain unanswered forever. The
conclusive findings are arrived at without following any fair process. The
Court ought to have borne in mind that it was closing the issue forever by its
conclusive findings. Therefore, it was
ethically incumbent on the Court to hear the views of all stake-holders, like
the family members of Judge Loya, reporters of Caravan Magazine, etc before
putting a permanent quietus to the issue. But such considerations of fairness
and transparency were totally ignored by the SC. This judgment, regretfully, is the ADM
Jabalpur moment of the modern day Supreme Court.
Epilogue: Hollow Homilies
Returning to Mahabharata, the story goes that
the patriarch Bhishma was confined to a bed of arrows towards the end, pained
by the sight of warring Pandavas and Kauravas. After Pandavas emerged
victorious in the war, they went to Bhisma. Then, Bhishma gave them advice
regarding ruling with justice and morality. On hearing this, Drapuadi burst
into laughter, probably reminded by the inaction of Bhisma to stop her
humiliation.
The judgement is
replete with grand homilies on sanctity of judicial process. At one instance it
is observed:- The judges of the district judiciary are vulnerable to wanton
attacks on their independence. This court would be failing in its duty if it
were not to stand by them. But this statement is made in the context of
protecting the judicial officers who gave statements from examination. This
sense of protection however did not find resonance while casually burying the
questions pertaining to death of Judge Loya, who was also a subordinate
judiciary.
Statements like “Courts
protect the rule of law”, “There are higher values which guide our conduct”. “The
credibility of the judicial process is based on its moral authority” etc
can also be found in the judgment. But,
on taking a full stock of the matter, these statements sound as hollow
homilies.
The homilies of the Supreme Court regarding
judicial independence and sanctity of judicial process might induce derisive
chuckles in people, if justice is not seen to be done.
Published in
Live Law on 22.04.2018
