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The hearing in the petitions seeking a probe into the death of Judge Loya was expected to conclude today, but it did not. Now, the matter will, in all probability, conclude on Monday next week.
Today’s hearing before the Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud was as eventful as previous hearings, with Senior Advocates Indira Jaising, Mukul Rohatgi, PS Surendranath, Harish Salve and Pallav Shishodia, and advocates Prashant Bhushan and Jatin Seghal making their submissions.
Appearing for NGO Centre for PIL, Bhushan relied on the article published by Caravan on February 11 containing the opinion of Dr. RK Sharma on the post-mortem report, the histopathology report, etc of Judge Loya.
“As per the article, Sharma’s opinion has ruled out heart attack. It says there is no evidence of heart attack”, said Bhushan.
Further, Bhushan also submitted that the ECG and the histopathology report were not annexed to the report submitted by the Maharashtra government in the Supreme Court.
Relying on Dr. Upendra Kaul’s opinion on the ECG and the histopathology report, Bhushan submitted that heart attack has been ruled out as the cause of death. He also attacked the State of Maharashtra for what he termed as “going to great lengths” to prepare a report based on a discreet inquiry, in a matter of days.
“There is no evidence of myocardial infraction. It is clear that there is no evidence of heart attack. If the State was really interested in finding out the truth, it would not have conducted itself like this. It has gone to great lengths to manufacture this report so quickly in order to preempt such inquiry”, said Bhushan.
Bhushan also questioned the wisdom of the four judges who stated that Judge Loya died of a heart attack.
“How can they attest that he died of heart attack? Just because he had chest pain does not mean it was heart attack. Chest pain could be due to numerous reasons. It could be because of poisoning.
The ECG rules out heart attack. If this is not the ECG, then the question of who planted it in Indian Express arises”, said Bhsuhan.
Subsequently, Bhushan raised the issue of potential conflict of interest which Justices Khanwilkar and Chandrachud might have in hearing the matter, since the two judges are from Maharashtra.
“Your Lordships might know the four judges personally. Hence, I leave it to Your Lordship’s discretion whether it is appropriate to hear this case or not”.
This, however, did not go down well with the judges.
“Whether it is appropriate to hear a case or not is something which we consider in every case”, Chandrachud J. responded as Khanwilkar J. also said something in approval (which was inaudible).
Mukul Rohatgi also rose from his seat and objected to Bhushan’s submissions.
“So what if the two judges are from Maharashtra. All the judges will know each other. It is a big family with the CJI at the top. My Lord Justice Misra might have travelled all over the country as High Court judge, so should he also recuse?”, Rohatgi asked.
After Bhushan concluded, Indira Jaising commenced her submissions for Admiral Ramdas. Jaising went on to raise the following points, among others:
Jaising further submitted that there were enough reasons to suspect that no ECG was done. She also dealt with the sudden transfer of Judge Utpat.
“An attempt was made to justify the transfer of Judge Utpat on the ground that he was transferred before the trial had commenced.
The beginning of a case is the date of assignment of the case to the judge, not the date of commencement of the trial. From the date the case is assigned, the same judge has to hear the case as per Supreme Court order.
Transfer of Judge Utpat was done at 4 pm and he was informed the following morning to take charge in Pune. Transfers are not effected this way, even if he was not hearing that [Sohrabuddin fake encounter] case”, said Jaising.
Jaising then strongly suggested that the Supreme Court should initiate suo motu contempt against the administrative committee of the Bombay High Court for flouting the Supreme Court order by transferring Judge Utpat without taking the leave of the Supreme Court.
“I am suggesting contempt action against the administrative committee of the Bombay High Court. It is up to Your Lordships to decide whether to uphold the majesty of this court or not. Your Lordships’ order has been violated.
As an officer of this court, we come here with the belief that every word of Your Lordships’ order will be obeyed. We may win or lose. But if we win and Your Lordships’ order is not implemented, then that is what makes people lose faith in the institution of judiciary”, said Jaising before resting her case.
Appearing for Tehseen Poonawala, Sehgal submitted that the first threshold was crossed when the State conducted a discreet inquiry into the matter.
“State of Maharashtra has already conducted a discreet inquiry based on Caravan report. It then comes with a report saying everything is fine. But our case is that the report raises more suspicions”, submitted Seghal.
Sehgal then questioned the manner in which the inquiry was conducted, contending that it was not done as per the statutory procedure.
“A State agency has to conduct probe based on CrPC. This report has no sanctity in law since the investigation procedure was not followed. An FIR has not been registered. They have filed a report saying everything is fine.”
He also contended that the State relies largely on the statements of the four judges, while the probe should have started from independent persons.
“These judges were with Judge Loya at the time of death. Probe should start from independent persons. There is nothing in the report to show that independent witnesses were spoken to. They have started with suspects and ended with suspects”, said Seghal.
Sehgal also submitted that Prashant Rathi’s statements should be disregarded.
“The [four] judges are silent on whether the judges were present. Likewise, Rathi also does not mention the presence of the four judges.”
Senior Advocates Pallav Shishodia and PS Surendranath also made brief submissions, after which the State of Maharashtra started its rebuttal.
Rohatgi began by narrating the facts of the case as presented by the State, before rebutting the submissions of the petitioner.
On the procedure followed for the discreet inquiry, he said that the same was conducted based on the manual.
“It is not that the inquiry was without any proper procedure. It was based on manual. It is not part of statutory framework”, Rohatgi said before proceeding to show that the inquiry of the Commissioner, Intelligence was in accordance with what was set out in the manual.
Regarding the registration of FIR, Rohatgi submitted that this was a case of a known person dying.
“If a known person or relative dies, then there is no requirement for registration of FIR or for calling the police. FIR is for a crime.”
The submissions of Prashant Bhushan on the opinions rendered by Dr. Sharma and Dr. Upendra Kaul were also rebutted by Rohatgi.
It was Rohatgi’s case that after the Caravan article was published citing Dr. Sharma’s report, a police inspector at Nagpur had written to AIIMS (from where Dr. Sharma superannuated) seeking information about Sharma’s opinion. AIIMS then wrote to Sharma, who later replied. The said reply was cited by Rohatgi.
“Sharma said – ‘I do not agree to the contents of the [Caravan] report. I had not given any such opinion and I have been misquoted’”.
Further, Rohatgi also submitted that the same police officer wrote to KEM Hospital, Mumbai on the ECG and histopathology report, and that Dr. Pathak of the said hospital attested to myocardial infarction.
“Now they have cited Kaul and Sharma. Whom do we believe – Pathak, Kaul, Sharma?”
Rohatgi then attacked the petitioners for their submission on the four judges.
“I am saddened and shocked that every lawyer on the other side don’t believe the four judges, question the four judges and want to cross-examine them. What kind of arguments are going on here? Has this country reached such a situation wherein we say that judges are being pressurised?
These are crocodile tears for independence of judiciary; Independence of judiciary by attacking four judges? These are actuated by malice. Their real attention is on a politician”, Rohatgi said.
He then stated that he would take another forty-five minutes, whereupon the Bench said that it would resume the hearing next week.
However, Harish Salve said that he wished to make submissions for five minutes, which the Bench allowed.
Salve’s submissions were on the conduct of the lawyers on the petitioner side, and had little to do with the merits of the case.
Referring to the allegations of the petitioners, Salve said,
“If our entire judiciary is in such a sad state as has been repeatedly told to Your Lordships and the entire system is dancing to the tune of one man, then we might as well wind up the judiciary. Has the system come to such a state of disrepair that one politician can make all this happen? If so, then even a probe might not be useful.
The persons who are making these allegations are the same ones who had made allegations of Bench hunting”, said Salve.
Strongly contending that decorum of the Court should be maintained, Salve urged the Bench not to allow such submissions in future.
“Please do not allow this to happen in this court. This Court is robust enough to deal with such allegations. Judges have to be protected and judges of the subordinate judiciary are most vulnerable”, said Salve.
The Bench then proceeded to rise. Hearing will resume at 2 pm on Monday next week.
Read Tehseen Poonawalla’s rejoinder submissions: