Bar & Bench ()images.assettype.com/barandbench/import/2018/02/...3. Union of India, through the Ld....

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IN THE SUPREME COURT OF INDIA

ORIGINAL JURISDICTION

Transferred Case No. 1 OF 2018

IN THE MATTER OF

Bombay Lawyers’ Association

A body registered under the provisions of

the Society Registration Act, 1860, having

its own office at 2A, Ground Floor, Commerce

House, 140, Nagindas Master Road, Fort,

Mumbai-400001 … Petitioner

Versus

1. State of Mahashtra

2. The Registrar General

High Court, Bombay, Mumbai-400032

3. Union of India,

through the Ld. Attorney General of India.

A-144, A-Block, Neeti Bagh, New Delhi, Delhi 110049

Bar & Bench (www.barandbench.com)

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WRITTEN SUBMISSIONS IN REJOINDER ON BEHALF OF THE

BOMBAY LAWYERS ASSOCIATION BY DUSHYANT DAVE,

SENIOR ADVOCATE

1. In Mohanlal Shamji Soni v. Union of India, 1991 Supp (1)

SCC 271, this Hon’ble Court elucidated a cardinal principle to

guide all Courts and said:

“It is a cardinal rule in the law of evidence that the best available

evidence should be brought before the court to prove a fact or the

points in issue. But it is left either for the prosecution or for the

defence to establish its respective case by adducing the best

available evidence and the court is not empowered under the

provisions of the Code to compel either the prosecution or the

defence to examine any particular witness or witnesses on their

sides. Nonetheless if either of the parties withholds any evidence

which could be produced and which, if produced, be unfavourable

to the party withholding such evidence, the court can draw a

presumption under Illustration (g) to Section 114 of the Evidence

Act. In such a situation a question that arises for consideration is

whether the presiding officer of a court should simply sit as a

mere umpire at a contest between two parties and declare at the

end of the combat who has won and who has lost or is there not

any legal duty of his own, independent of the parties, to take an

active role in the proceedings in finding the truth and

administering justice? It is a well accepted and settled principle

that a court must discharge its statutory functions — whether

discretionary or obligatory — according to law in dispensing

justice because it is the duty of a court not only to do justice but

also to ensure that justice is being done. In order to enable the

court to find out the truth and render a just decision, the salutary

provisions of Section 540 of the Code (Section 311 of the new

Code) are enacted whereunder any court by exercising its

discretionary authority at any stage of enquiry, trial or other

proceeding can summon any person as a witness or examine any

person in attendance though not summoned as a witness or recall

or re-examine any person in attendance though not summoned as

a witness or recall and re-examine any person already examined

who are expected to be able to throw light upon the matter in


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dispute; because if judgments happen to be rendered on inchoate,

inconclusive and speculative presentation of facts, the ends of

justice would be defeated.”

It was also held:

“The very usage of the words such as ‘any court’, ‘at any stage’,

or ‘of any enquiry, trial or other proceedings’, ‘any person’ and

‘any such person’ clearly spells out that this section is expressed

in the widest possible terms and do not limit the discretion of the

court in any way.”

This Hon’ble Court approvingly referred to the passage of

Lumpkin, J. in Epps v. S. [19 Ga 118 (Am)] to the following

effect:

“....it is not only the right but the duty of the presiding judge to call

the attention of the witness to it, whether it makes for or against

the prosecution; his aim being neither to punish the innocent nor

screen the guilty, but to administer the law correctly …. Counsel

seek only for their client's success; but the judge must watch that

justice triumphs.”

Though the decision involved interpretation of provisions of the

Code of Criminal Procedure, 1973, the principle would apply to

the facts of the present case, particularly in the light of Order IX

of the Supreme Court Rules, 2013 read with Order VIII thereof.

In Ritesh Tewari v. State of U.P., (2010) 10 SCC 677, it was

observed,

“‘37. … “Every trial is voyage of discovery in which truth is the

quest” and “the power is to be exercised with an object to

subserve the cause of justice and public interest, and for getting

the evidence in aid of a just decision and to uphold the truth”.

Subsequently in Dalip Singh v. State of U.P., (2010) 2 SCC

114, it was observed,

“Truth constituted an integral part of the justice-delivery system

which was in vogue in the pre-Independence era and the people

used to feel proud to tell truth in the courts irrespective of the


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consequences. However, post-Independence period has seen

drastic changes in our value system.”

This was followed by a similar warning administered by this

Hon’ble Court in Maria Margarida Sequeira Fernandes v.

Erasmo Jack de Sequeira, (2012) 5 SCC 370 with following

strong words,

“The truth should be the guiding star in the entire judicial process.

Truth alone has to be the foundation of justice. The entire judicial

system has been created only to discern and find out the real

truth. Judges at all levels have to seriously engage themselves in

the journey of discovering the truth. That is their mandate,

obligation and bounden duty. Justice system will acquire

credibility only when people will be convinced that justice is based

on the foundation of the truth...

A Judge in the Indian system has to be regarded as failing to

exercise his jurisdiction and thereby discharging his judicial duty,

if in the guise of remaining neutral, he opts to remain passive to

the proceedings before him. He has to always keep in mind that

‘every trial is a voyage of discovery in which truth is the quest’. In

order to bring on record the relevant fact, he has to play an active

role; no doubt within the bounds of the statutorily defined

procedural law”

In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu

Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC

430, this Hon’ble Court (Coram: Hon’ble Mr. Justice Dalveer

Bhandari and Hon’ble Mr. Justice Dipak Misra), authoritatively

held,

“Our courts are usually short of time because of huge pendency of

cases and at times the courts arrive at an erroneous conclusion

because of false pleas, claims, defences and irrelevant facts. A

litigant could deviate from the facts which are liable for all the

conclusions. In the journey of discovering the truth, at times, this

Court, at a later stage, but once discovered, it is the duty of the

court to take appropriate remedial and preventive steps so that no

one should derive benefits or advantages by abusing the process

of law. The court must effectively discourage fraudulent and

dishonest litigants.”


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2. The present proceedings, especially in respect of Transferred

Petition No. 1 of 2018 deserve to be examined by this Hon’ble

Court in the light of above principles.

The Writ Petition filed by the Bombay Lawyers Association before

the Hon’ble High Court of Bombay has been transferred to this

Hon’ble Court under an order passed by this Hon’ble Court. The

remedy of Writ Petition before the High Court having been taken

away, especially where the High Court has much wider powers

under Article 226 than those of this Hon’ble Court under Article

32, and also a remedy of appeal by Special Leave to this Hon’ble

Court having been taken away, it is essential in the interest of

justice that the present proceedings be heard and decided upon

completion of pleadings and after adducing relevant evidence on

oath by the respective parties. This matter can neither be

disposed off in a summary manner nor can the present

Transferred Petition be dismissed in limine. The attempt on the

part of the State of Maharashtra to persuade this Hon’ble Court

to adopt such a course is, to say the least, unfortunate. The

State should be more than willing to offer and agree for an

independent investigation to be ordered by this Hon’ble Court

and cannot oppose the prayer relying upon a self-serving

Enquiry Report by a Police Officer, even if he is a high ranking

officer. Besides the credibility and veracity of the Report is

seriously in question in view of the manner of conducting the

enquiry, the material allegedly collected there under and

omission to address the real issues and collect the most relevant

material. The Enquiry Report is a brazen attempt to put the

present matter under the carpet and give it a burial for all times

to come. This Hon’ble Court, it is respectfully submitted, ought

not to countenance such a stand on the part of the State. This

Hon’ble Court in City and Industrial Development Corpn. v.

Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168 had this to

state:

“We are constrained to confess that the case has left us perplexed.

The stance adopted by the State of Maharashtra and the District

Collector is stranger than fiction. It is difficult to discern as to why

they remained silent spectators without effectively participating in


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the proceedings before the Court. No explanation is forthcoming as

to why they have chosen not to file their replies to the writ petition

in the High Court.”

It was held by this Hon’ble Court as under:

“It will not be appropriate to dispose of the matter without one

word about the conduct of the State Government reflecting a

highly unsatisfactory state of affairs. We express our grave

concern as to the manner in which the State has conducted in this

case. It is the constitutional obligation and duty of the State to

place true and relevant facts by filing proper affidavits enabling

the court to discharge its constitutional duties. The State and other

authorities are bound to produce the complete records relating to

the case once Rule is issued by the court. It is needless to remind

the Governments that they do not enjoy the same amount of

discretion as that of a private party even in the matter of conduct

of litigation. The Governments do not enjoy any unlimited

discretion in this regard. No one needs to remind the State that

they represent the collective will of the society.

The State in the present case instead of filing its affidavit through

higher officers of the Government utilised the lower ones to make

oral statements and that too through its AGP in the High Court.

This malady requires immediate remedy. We hope that the

Government shall conduct itself in a responsible manner and

assist the High Court by placing the true and relevant facts by

filing a proper affidavit and documents that may be available with

it. We also hope and trust that the legal advisors of the

Government will display greater competence and attention in

drafting affidavits.”

Interestingly once again the State of Maharashtra is following the

same path which was strongly condemned by this Hon’ble Court

in the aforesaid judgment.

3. The State has mainly argued questioning the bona fides of the

Petitioners. So far as Bombay Lawyers Association is concerned

it is a registered body under the Societies Registration Act, 1860

with inter-alia the following objectives:

“To uphold the rule of law, promote higher values in legal

profession and to preserve and protect independence of judiciary.


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To strive for improvement in the institution of Judiciary, i.e. bar as

well as the bench, for attainment of justice economic, political and

social through Constitutional means.”

It has discharged its functions quite satisfactorily for the

purpose of upholding Rule of Law by organizing various

seminars for continuing legal education and other related

matters. Its President had even filed a PIL in the Bombay High

Court for improving the infrastructural facilities of the said High

Court to create better working environment for the Hon’ble

Judges, staff, lawyers and the litigants, which was entertained

by the Hon’ble High Court and various directions were passed. It

is not a political organization but consists of serious lawyers who

are interested in upholding the Rule of Law.

The State has not filed any affidavit questioning the bona fides of

the Petitioner Association and it cannot do so in view of the

genuine bona fides possessed by the Association. The arguments

at the Bar on behalf of the State to the contrary are clearly

unacceptable, uncalled for and regrettable. The Petitioner

Association had moved the High Court by way of Writ Petition for

an independent enquiry into the death of late Judge Loya so as

to ensure that truth emerges from such an enquiry and the law

takes its own course, one way or the other. The Writ Petition is

really to strengthen not only the Rule of Law but the

independence of Judiciary itself and right to life of a Judge

under Article 21, which can be seriously undermined if indeed

the death of Judge Loya is found upon an independent

investigation to have been caused on account of unnatural

causes. The Judiciary must be guarded from attacks from

outside and the Bar and the Bench have a duty to afford such

protection. State, being the Executive, cannot wish it away by

imputing motives to the Petitioner Association.

The State has failed in the first instance in not ensuring proper

safety to Judge Loya, in not providing proper, immediate and the

best treatment to Judge Loya (assuming he suffered a heart

attack), in providing respectful and best treatment even post his


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death, and lastly the State singularly failed in holding an

independent enquiry immediately after the death of Judge Loya

to find out the real cause of his death. The State is thus guilty of

several lapses on its part and cannot now hide its lapses by

attacking the bona fides of the Petitioner Association. Even

assuming for the sake of argument that Judge Loya died of

natural causes, the State owed a duty to hold an enquiry into his

death, find out the causes resulting in his heart attack, lack of

immediate and best treatment to him and lack of post death

support for his funeral and to his family. Pertinently, Judge

Loya’s death was reported in Indian Express on December 1,

2014 reporting that he had died of a “heart attack” but also

noting that “Sources close to him said that Loya had sound

medical history.” Subsequently on December 3rd, several

members of Parliament belonging to a particular party had

staged a protest outside the Parliament demanding an enquiry

into the death of Judge Loya and somewhere around December

4, Rubabuddin, brother of Sohrabuddin, who had successfully

petitioned the Supreme Court earlier, wrote a letter to CBI

expressing his shock about the death, yet no follow up action

was taken by the State. The State cannot be oblivious to the fact

that its Government is headed by the Bharatiya Janata Party of

which Shri Amit Shah is the President and it was he who was

discharged in the murders of three persons by the Learned

Judge who took over immediately after death of Judge Loya. The

discharge order was made with great alacrity and has not even

been appealed against, a fact which substantiates the suspicions

and doubts over the death of Judge Loya.

The State has taken an adversarial role which is wholly

unacceptable in a matter like this. Public Interest Litigation is

not heard and decided on adversarial basis. The whole approach

of the Court, as also the parties before it is to arrive at truth in

larger public interest and sub serve common good. The

arguments on behalf of the State, with due respects, appeared as

if the arguments were made for and on behalf of an individual.

4. So far as Public Interest Litigation is concerned, the law is well

settled by a catena of decisions. In S.P. Gupta v. Union of


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India, 1981 Supp SCC 87 this Hon’ble Court observed as

under:

“It may therefore now be taken as well established that where a

legal wrong or a legal injury is caused to a person or to a

determinate class of persons by reason of violation of any

constitutional or legal right or any burden is imposed in

contravention of any constitutional or legal provision or without

authority of law or any such legal wrong or legal injury or illegal

burden is threatened and such person or determinate class of

persons is by reason of poverty, helplessness or disability or

socially or economically disadvantaged position, unable to

approach the court for relief, any member of the public can

maintain an application for an appropriate direction, order or writ

in the High Court under Article 226 and in case of breach of any

fundamental right of such person or determinate class of persons,

in this Court under Article 32 seeking judicial redress for the legal

wrong or injury caused to such person or determinate class of

persons.,….. This Court will readily respond even to a letter

addressed by such individual acting pro bono publico. It is true

that there are rules made by this Court prescribing the procedure

for moving this Court for relief under Article 32 and they require

various formalities to be gone through by a person seeking to

approach this Court. But it must not be forgotten that procedure is

but a handmaiden of justice and the cause of justice can never be

allowed to be thwarted by any procedural technicalities. The court

would therefore unhesitatingly and without the slightest qualms of

conscience cast aside the technical rules of procedure in the

exercise of its dispensing power and treat the letter of the public-

minded individual as a writ petition and act upon it.”

In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC

161, this Hon’ble Court put beyond pale of doubt the scope and

ambit of PILs:

“We should have thought that if any citizen brings before the

Court a complaint that a large number of peasants or workers are

bonded serfs or are being subjected to exploitation by a few mine


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lessees or contractors or employers or are being denied the

benefits of social welfare laws, the State Government, which is,

under our constitutional scheme, charged with the mission of

bringing about a new socio-economic order where there will be

social and economic justice for everyone and equality of status

and opportunity for all, would welcome an enquiry by the Court,

so that if it is found that there are in fact bonded labourers or even

if the workers are not bonded in the strict sense of the term as

defined in the Bonded Labour System (Abolition) Act, 1976 but

they are made to provide forced labour or are consigned to a life of

utter deprivation and degradation, such a situation can be set

right by the State Government...

The Government and its officers must welcome public interest

litigation, because it would provide them an occasion to examine

whether the poor and the downtrodden are getting their social and

economic entitlements or whether they are continuing to remain

victims of deception and exploitation at the hands of strong and

powerful sections of the community and whether social and

economic justice has become a meaningful reality for them or it

has remained merely a teasing illusion and a promise of unreality,

so that in case the complaint in the public interest litigation is

found to be true, they can in discharge of their constitutional

obligation root out exploitation and injustice and ensure to the

weaker sections their rights and entitlements. When the Court

entertains public interest litigation, it does not do so in a cavilling

spirit or in a confrontational mood or with a view to tilting at

executive authority or seeking to usurp it, but its attempt is only to

ensure observance of social and economic rescue programmes,

legislative as well as executive, framed for the benefit of the have-

nots and the handicapped and to protect them against violation of

their basic human rights, which is also the constitutional

obligation of the executive. The Court is thus merely assisting in

the realisation of the constitutional objectives.”

This Hon’ble Court, it is most respectfully submitted, is bound

by the law so declared and the present case clearly demands

that the said law be applied for granting relief as prayed for.

5. It is further submitted that there can be no question of delay in

the present matter because the Petitioner Association


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approached the Hon’ble High Court as soon as it could following

the publication of the articles which raised serious questions

about the death of Judge Loya. The articles are based on a

thorough investigation carried over a long period of time and

upon interviews with the family members of Judge Loya and

many others connected to the incident. It is extremely shocking

that the State claims to have instituted the enquiry by the

Commissioner, Intelligence in view of the very same publications

but is questioning the power of this Hon’ble Court or the motives

of the Petitioner Association for an independent investigation.

Independence of the Judiciary is a part of the basic structure of

the Constitution and if indeed Judge Loya died in suspicious

circumstances (and indeed that must be the case because the

Police did hold an inquest into the death under Section 174 of

the Code of Criminal Procedure 1973), it is the bounden duty of

this Hon’ble Court to order an independent investigation and the

State cannot be heard to oppose the same. The State’s stand

before this Hon’ble Court is regrettable as the State is shirking

from even filing an affidavit in an attempt to silence and muzzle

an independent investigation.

This Hon’ble Court has in large number of cases entertained

petitions upon newspaper reports. They include the following:

“(i) People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235

(ii) George Fernandes v. Union of India, 1993 Supp (1) SCC

418

(iii) News Item Published in Hindustan Times Titled “And Quiet

Flows the Maily Yamuna”, In re, (2012) 13 SCC 736

(iv) Amarnath Shrine, In re, (2012) 12 SCC 497

(v) Supreme Court Women Lawyers Assn. (SCWLA) v. Union of

India, (2016) 3 SCC 680

If this is the law, there is no delay whatsoever and the State’s

argument in this regard deserves to be rejected and the present

petition deserves to be entertained and allowed.


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6. The State has submitted a report dated 28.11.2017 prepared by

the Commissioner of State Intelligence and submitted to the

Additional Chief Secretary, Home. On the basis of the Report, it

has been argued on behalf of the State that no further

investigation needs be ordered by this Hon’ble Court. The

argument on behalf of the State does not deserve acceptance by

this Hon’ble Court for the following reasons:

(a) As held by this Hon’ble Court in Bandhua Mukti Morcha

(supra), “Even if the State Government is on its own enquiry

satisfied that the workmen are not bonded and are not

compelled to provide forced labour and are living and working

in decent conditions with all the basic necessities of life

provided to them, the State Government should not baulk an

enquiry by the Court when a complaint is brought by a citizen,

but it should be anxious to satisfy the Court and through the

Court, the people of the country, that it is discharging its

constitutional obligation fairly and adequately.” Resistance on

the part of the State, and that too so vehemently, raises

serious doubts about the neutrality and independence on its

part thereby further justifying an order for an independent

investigation. The State’s stand itself shows that it doesn’t

want truth to be discovered otherwise it would have readily

agreed for an investigation.

(b) The so called enquiry by Commissioner of State Intelligence is

a sham, an eye-wash and tardily done. It has been done post-

haste thereby showing that it is not a genuine and fully

fledged enquiry. If on the 23rd of November, the State

Government asked the Commissioner to investigate, it is well

impossible to believe that the Commissioner could have

started the enquiry on the same day by obtaining permission

from the Hon’ble High Court of Bombay with great alacrity

(and which was granted with equal alacrity by the High

Court). The report was submitted within 5 days thereafter, i.e.

on 28.11.2017. Surely such an enquiry cannot be a substitute

for a genuine independent enquiry into the death of a serving

Judge, especially one who was handling an extraordinarily


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politically sensitive criminal matter involving a very high

functionary of the Ruling Party as an accused in cold blooded

murder of three citizens in stage managed encounters.

(c) On 23rd November, after the Government directed an enquiry

into the Caravan story published on 20th and 21st November,

2017, the Commissioner of Intelligence wrote a letter to the

Hon’ble Chief Justice of the Bombay High Court specifically

stating,

“2. Following judicial officers had accompanied Mr. Loya to

the hospital 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

(iv) Mr. RR Rati- District Judge, Baramati”

Now undisputedly Caravan’s story had only mentioned the

name of Learned Judge Barde and not of the other Learned

Judges. The Commissioner constituted to enquire on 23rd

morning could not have sitting in his office found out within

minutes the presence of other three Learned Judges and shot

off a letter to the Hon’ble High Court for permission to record

their say in the form of a statement or a letter. Clearly the

matter was pre-decided by the Commissioner. This itself

vitiates the enquiry and its report.

(d) If the enquiry was instituted on 23rd November and the High

Court had granted the permission to take statements of the

four Learned judges on 23rd November, it is inconceivable that

the statement of the three Learned Judges, namely Hon’ble

Judge Kulkarni, Hon’ble Judge Modak, Hon’ble Judge Barde

were taken on 24.11.2017 while that of Hon’ble Judge Rathi

could have been obtained on 23rd itself.

While the Commissioner of Intelligence sits at Colaba in

Mumbai, Hon’ble Judges Kulkarni and Barde were working in


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Mumbai while Hon’ble Judge Modak was working in Pune and

Hon’ble Judge Rathi was working at Baramati.

The “say” or “statement” of the Hon’ble Learned Judges were

given pursuant to letter by Shri Barve. When were the letters

prepared and when were they dispatched and communicated

is a mystery. In any case an enquiry of this nature even if

discreet could not have been conducted in the manner in

which it has been done to obtain such letters from the Hon’ble

Judges without personally discussing the matter with them.

With respects, the response of the Hon’ble Judges reflects

that the entire judicial machinery of the State was at the beck

and call of the Commissioner, Intelligence which again raises

serious question marks about the nature of the enquiry.

(e) Equally shocking but clinching evidence as to the bogus

nature of the enquiry is the statement of Dr. Prasanth

Bhajrang Rathi recorded by Police Inspector (Crime), Police

Station Sadar, Nagpur. This statement was recorded on

22.11.2017, a day before the enquiry was ordered and

initiated.

Similarly, the statements of the family members of Judge Loya

namely Shri Anuj Loya, Smt. Sharmila Loya, Shri Harkishan

Loya and Smt. Anuradha Biyani are all dated 27.11.2017and

are in the form of letters addressed to Shri. Sanjay Barve at

Mumbai. Each of these persons is writing from Pune. It is

quite unnatural to obtain letters from all family members,

although not residing together, on the same day i.e. on

27.11.2017, ensures that it reaches Commissioner,

Intelligence on the same day and next morning he prepares

the report and submits it to the State Government. Thus, the

Report is clearly a pre-conceived, well orchestrated piece of

evidence which needs to be rejected forthwith by this Hon’ble

Court and this Hon’ble Court should institute appropriate

proceedings under the Contempt of Court Act as also the

Code of Criminal Procedure for interference with the course of

justice and perjury against the concerned officer and others


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who instructed the Senior Counsels for the State to present

the said report before this Hon’ble Court.

(f) The Commissioner of Intelligence was asked to make an

enquiry into the publication of Reports by Caravan on

November 20 and 21st. November 20 story of Caravan

expressly records:

“Sarita Mandhane, another of Loya’s sisters, who runs a tuition

centre in Aurangabad and was visiting Latur at the time, told

me that she received a call from Barde at around 5 am,

informing her that Loya had died. “He said that Brij has

passed away in Nagpur and asked us to rush to Nagpur,” she

said. She set out to pick up her nephew from a hospital in Latur

where he had earlier been admitted, but “just as we were

leaving the hospital, this person, Ishwar Baheti, came there. I

still don’t know how he came to know that we were at Sarda

Hospital.” According to Mandhane, Baheti said that he had

been talking through the night with people in Nagpur, and

insisted that there was no point in going to Nagpur since the

body was being sent to Gategaon from there in an ambulance.

“He took us to his house, saying that he will coordinate

everything,” she said. (Questions that I sent to Baheti were still

unanswered at the time this story was published.)

It was night by the time Biyani reached Gategaon—the other

sisters were already at the ancestral home by then. The body

was delivered at around 11.30 pm, after Biyani’s arrival,

according to an entry in her diary. To the family’s shock, none

of Loya’s colleagues 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 insisted that he travel to Nagpur for the

marriage had not accompanied him. Mr Barde, who informed

the family of his death and his post-mortem, had not

accompanied him. This question haunts me: why was his body

not accompanied by anyone?” One of her diary entries reads,


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“He was a CBI court judge, he was supposed to have 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 a

few judges. One of them “was constantly telling Anuj and the

others not to speak to anybody,” Biyani told me. “Anuj was of

course sad and scared, but he maintained his poise and kept

supporting his mother.”

If this be so, the theory that Judge Loya died at 6:15 am

before reaching Meditrina Hospital appears to be completely

incorrect. The Commissioners ought to have questioned on

this point as this goes to the root of the issue.

Equally, who were the Judges who accompanied Smt.

Sharmila Loya and their children from Mumbai to Gategaon.

They ought to have been interviewed to find out the facts

including as to the doubts entertained by the family, the

status of the dead body including blood marks on it, had

anyone accompanied the ambulance, etc. etc. Clearly none of

the four Learned Judges whose statements have been

recorded had gone to Gategaon for the funeral. So what was

the point of recording their statements and not recording the

statements of the Learned Judges who were present at

Gategaon. The Commissioner should have enquired as to who

was the Judge who “was constantly telling Anuj and others

not to speak to anybody”.

(g) Equally the Commissioner was bound to enquire into the

allegations contained in the story which appeared in Caravan

on November 21st in which the sister of Late Judge Loya

Anuradha Biyani had categorically stated as reported by

Caravan as under:

“Anuradha Biyani told me that Loya confided in her that Mohit

Shah, who served as the chief justice of the Bombay High Court

between June 2010 and September 2015, offered Loya a bribe

of Rs 100 crore for a favourable judgment. According to her,


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Mohit Shah “would call him late at night to meet in civil dress

and pressure him to issue the judgment as soon as possible

and to ensure that it is a positive judgment.” According to

Biyani, “My brother was offered a bribe of 100 crore in return

for a favourable judgment. Mohit Shah, the chief justice, made

the offer himself.”

She added that Mohit Shah told her brother that if “the

judgment is delivered before 30 December, it won’t be under

focus at all because at the same time, there was going to be

another explosive story which would ensure that people would

not take notice of this.”

Equally the father of Late Judge Loya had confirmed the same

as reported as under:

“Loya’s father Harkishan also told me that his son had

confided in him about bribe offers. “Yes, he was offered

money,” Harkishan said. “Do you want a house in Mumbai,

how much land do you want, how much money do you want,

he used to tell us this. This was an offer.” But, he added, his

son refused to succumb to the offers. “He told me I am going to

turn in my resignation or get a transfer,” Harkishan said. “I will

move to my village and do farming.”

Why did the Commissioner not take the statement of Chief

Justice Mohit Shah? And at least the Commissioner should

have enquired into the aspect whether the pressure and

tactics allegedly adopted by the Chief Justice Mohit Shah was

the cause for “induced heart attack” (expression used by the

Learned Senior Counsel on behalf of the State). If it was so,

then it was not a case of natural death which even otherwise

would need an independent enquiry.

(h) The article on November 21 refers to a letter by Anuj Loya

dated 18th February 2015 written to his family in which he

categorically had stated, “I fear that these politicians can harm

any person from my family and I am also not powerful enough

to fight with them.” He also wrote, referring to Mohit Shah, “I


18

asked him to set up an enquiry commission for dad’s death. I

fear that to stop us from doing anything against them, they can

harm anyone of our family members. There is threat to our

lives.” and expressed fears that “if anything happens to me or

my family, chief justice Mohit Shah and others involved in the

conspiracy will be responsible.”.

(i) The Commissioner ought to have examined the statements of

father and sister which were given freely and voluntarily and

without any kind of pressure and were video recorded by

Caravan Magazine. Equally letter of Shri Anuj Loya was sent

voluntarily much before the controversy erupted and

independent of Caravan investigation. If that was so, the

Commissioner ought not to have satisfied himself by getting

letters from the very same family members absolving everyone

from Judge Loya’s death by calling it natural death.

Commissioner should have realised that letters by family

members on 27.11.2017 did not and were not natural in their

content and raised serious doubts about them but the

Commissioner appears to have been satisfied and post haste

he prepared the report on 28.11.2017. The enquiry and the

report therefore are not credible and do not deserve

acceptance by this Hon’ble Court

(j) It is pertinent that there is a serious contradiction in the

theory of the heart attack and treatment given to Late Judge

Loya. If three of the four Learned Judges who claim to have

accompanied him were indeed based in Nagpur on the fateful

day, it is impossible to believe that they would rush Judge

Loya who complained of chest pain according to them at 4 am

to some Dande hospital, when reputed hospitals like Lata

Mangeshkar Hospital and Mayo Hospital are situated within a

radius of 5 kms from Ravi Bhawan. It is equally impossible to

believe that the Government guest house would have no car to

immediately take Judge Loya to a reputed or at least a

Government Medical Hospital (Medical College Nagpur),or that

everyone would wait till Learned Judge Barde and Learned

Judge Rathi came to Ravi Bhawan. If the Chief Justice of

Bombay High Court and the Registrar General were staying in


19

the adjoining Guest House, then several High Court or State

cars would have been parked at Ravi Bawan with drivers all

around. Ravi Bhawan being a VIP guest house must also be

having a settled protocol to deal with such a situation, and to

inform the nearest Government hospitals and doctors to deal

with such emergencies. Similarly, further conduct of taking

Judge Loya almost two hours later to Meditrina Hospital by

the Learned Judges who claim to be from Nagpur itself adds

further doubts to the theory that they had accompanied

Judge Loya. Those in Government would normally rush their

colleagues to the best hospital available and certainly if a

good Government Hospital was available they would have

rushed there, and also alerted the Civil Surgeon of the city

and other officials. For these reasons also an investigation is

needed as to why the four Learned Judges failed to take the

best measures to save the life of Judge Loya, who was 48

years of age, had no history of heart attack and could have

been easily saved with immediate and best treatment

available in a big city like Nagpur.

(k) Equally disturbing is the fact that the four Learned Judges

failed to take any responsibility whatsoever in reporting to the

Police the death of the Learned Judge, taking the body for

post mortem or receiving the body after the post mortem

much less accompanying the body to his native village,

Gategaon and left the whole thing to be done by a complete

stranger to Judge Loya or to the Judiciary, Dr. Prasanth

Rathi. Dr. Rathi’s involvement is also very curious because he

claims to have come to know of Judge Loya’s plight from his

uncle.

(l) Equally curious is the fact that contemporaneous Police

records do not speak a word about the presence of the four

Judges or for that matter of anyone from the judicial family. If

this is how serving judge is treated then there is serious issue

to be investigated.

(m) It is equally shocking that while P.G Dande claims that ECG

was taken of Late Judge Loya, Learned Judge Rupesh Rathi


20

categorically states that “at that time the doctor tried to do the

ECD but the nodes of the ECG machine were broken, doctor

tried and wasted some time but machine was not working.”

There is thus serious contradictions which disproves the

theory of heart attack and the treatment at Dande Hospital.

(n) Learned Judge Rathi also states, “Mr. Loya was again

complaining of Chest Pain. I called my brother (cousin) Dr.

Pankaj Harkut who is cardiologist but his phone ringed but he

did not picked my phone. After some time he called me and I

told him all these things. He immediacy told me to brought him

to Meditrina Hospital at Ramdaspeth, Nagpur. It was 5.00 am

approx that time. Thereafter I sitted in car of judge Waikar. Mr

Loya sitted in the car of Barde and Shri Kulkarni and Modak

accompanied them. Thereafter we proceeded to Meditrina

Hospital. At Meditrina when we reached that time Mr. Loya

was unconscious and was unable to speak. Then he was taken

inside hospital for treatment. Thereafter Dr. Pankaj Harkut also

came there. Mr. Loya was treated at that hospital. After some

time we came me to know and Mr. Loya suffered heart attack.

thereafter we come to know that he died.”

This is completely contrary to the Reports of Meditrina

Hospital which categorically record that Judge Loya was

“brought dead” and further “brought with no evidence of life

to our hospital” at 6:15 am. The hospital record further shows

that “while shifting pt collapsed” and also that “declared dead

at 6:15 am on 01.12.2014”. The time of admission is also

recorded in the said report as 6:15. Even the Death Report

Certificate issued by the hospital indicates that he expired at

6:15 am and cause of death as “undetermined” and further

“brought dead”. Dr. Prashant Rathi in his statement to police

on 1.12.2014 does not mention about Dande hospital

whatsoever but records that Judge Loya had suffered some

pain at 4 am and was admitted to Meditrina Hospital at 6:15

am and he was declared dead brought dead at 6:15.

Accidental Death Intimation Report under Section 174 CrPC

also records accordingly.


21

(o) Therefore there are material contradictions in the statements

of the Learned Judges vis-a-vis statements of others and the

contemporaneous documents.

(p) Incidentally a former Senior Pathologist of AIIMS has in an

interview raised serious doubts about the cause of death of

Judge Loya and relying upon the Post Mortem Report had

suggested that the death was not on account of heart attack.


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