22 April 2018 6:50 AM GMT
'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'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...
'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'
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 Yudhishthira to place a bet on her, and expected Bhisma, the conscience keeper of Hastinapur, to deliver justice. But Bhishma 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 the 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 an 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 fthe irst 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 the violation of Section 174 CrPC. 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 judgments explaining the scope of the 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 a post-mortem. It was Prashant Rathi who received the body of Judge Loya after post-mortem as ‘relative’. It was on the basis of an identification by Prashant Rathi that the Supreme Court holds that the identity of the 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 the 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 the 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 the 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 the 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 the 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.
Discrepencies 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 :-
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 lacuna. In the 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 the 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 an 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 an 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.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]