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VIMALA VIDYA-TN

Unanswered Questions In Loya Case Verdict

BY: MANU SEBASTIAN

APRIL 22, 2018...

‘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
Yudhisthira was valid and proper.

Failing to summon the courage to listen to his conscience, Bhisma

peered helplessly while Draupadi 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 :- 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 the 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 the 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 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.

Manu Sebastian is an Advocate practicing in High Court of Kerala. He

is a regular contributor to LiveLaw

April 22, 2018

Judge Loya: (Not so) New clothes, pointing children and a whole lot
of questions
In Hans Christian Andersen’s fairytale The Emperor’s New
Clothes, it was a child that drew the public’s attention to the fact
that the King was indeed naked.

Similar attempts to expose one of the most powerful men in the Indian government
were shot down earlier this week by the Supreme Court, which held that the petitions
seeking an independent probe into the death of Judge Loya were politically motivated
and aimed at bringing disrepute to the judiciary.

In Andersen’s story, two weavers, in an attempt to swindle the vain Emperor, stitch up
make-believe clothes for him to parade around in. The Emperor is taken in when the
weavers convince him that the clothes have a quality of becoming invisible to anyone
who was unfit for office, or stupid.
When the Emperor puts on these “clothes”, neither his ministers nor his subjects have
the conviction to acknowledge that their ruler is in the nude, though they can see it
with their own eyes. And despite the child shouting out, “But he hasn’t got anything
on,” the public continues to marvel at the Emperor’s non-existent finery, while the
ministers hold up the train that was never there.
During the hearings of the case in the Supreme Court, Senior Advocate Mukul
Rohatgi, appearing for the state of Maharashtra, argued,

“Either the Court will have to say they [the four judges who insisted Loya’s death was
natural] are lying or the petitions have to be dismissed.”

And in the judgment delivered by Justice DY Chandrachud, the Supreme Court

chose to stand by the testimony of the four judges who were in proximity to Judge
Loya around the time of his death. In their testimonies, Loya’s peers ruled out foul
play in the judge’s death in December 2014, despite discrepancies being brought to
light by the deceased judge’s family and the media.

Truth be told, the allegations of foul play surrounding the death of a judge hearing the
Sohrabuddin case in which Amit Shah was the prime accused are not as stark as the
Emperor’s lack of clothes. But the fact remains that there are certain aspects that
deserve a second look – the transfer of the judge previously hearing the case, the
mysterious chain of events that led to Loya being declared dead, the claims of the
family, the alleged manipulation of the post-mortem that came to light after the Court
reserved its judgment on March 16.

That this government or any other since time immemorial will not think twice about
showing off (or in this case, covering things up) is trite knowledge; the Emperor’s
clothes have become weathered with age. Andersen’s story in itself was a piece of
political satire aimed at the then King’s court in Denmark.

And like Andersen, the Supreme Court has over the years, criticised the acts and
omissions of the government.

But then again, it hasn’t, even when the government flouts its orders. A classic
example was seen in the Aadhaar matter, where the government has been on an
aggressive drive to implement the scheme mandatorily, even though the Supreme
Court ordered otherwise back in 2015.

And speaking of its own orders being flouted, one has to bear in mind that the
Sohrabuddin case was listed before three different judges (including Loya), even
though the Court had directed that the trial be conducted from the beginning to the
end by the same officer. In today’s judgment, the Court chose not to address this
issue, stating,

“The issue as to whether Judge JT Utpat could have been transferred has no bearing
on the circumstances in which Judge Loya died.”

At a time when sitting judges of the Supreme Court themselves speak about Executive
interference in the functioning of the judiciary, it becomes all the more necessary to
view with a magnifying glass any instances where the two organs of state are
involved, as is the case in the Judge Loya matter.

Ever since the Judges Press Conference (and even before that), the image of the great
institution of the judiciary has taken a severe beating. In this light, it becomes
paramount for the judiciary to lay bare any attacks against it, and let the truth be the
ultimate judge.

However, what the Court held was quite the contrary. In a nutshell, they have held
that there are questions against the judiciary, and with a view to protecting the
judiciary, they will not entertain those questions.

What harm could a call for an independent investigation have done? If there was
nothing to the case, as the government contended, and the investigative team gave a
clean chit, would not the stock of the judiciary truly rise in the eyes and minds of the
people? Would that also not restore the credibility of the polity? And if the allegations
were proven true, the judiciary would have been lauded all the same. The Supreme
Court has refused to play in a win-win situation.

For now, all we can do is ponder, even as the “children” point out repeatedly that the
Emperor has no clothes.

Alison Prince, in her book Hans Christian Andersen: The Fan Dancer, claims that
Andersen received a ruby and a diamond ring from the King after writing The
Emperor’s New Clothes and The Swineherd, another work of satire mocking the
King’s court. After that, she says, Andersen did not write another work aimed at
poking fun at the King.