TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR.

The Judgment of the Court was delivered by Dr DY CHANDRACHUD, J. A The Context B

1Copy pinpoint1. In the batch of petitions before this Court, the petitioners seek an inquiry into the circumstances of the death of Brijgopal Harikishan Loya. He was a judicial officer in the State of Maharashtra in the rank of a district judge and died on 1 December 2014. Articles on his death were published in the issues of Caravan magazine dated 20 and 21 C November 2017. The first article was titled “A family breaks its silence : shocking details emerge in death of judge presiding over Sohrabuddin trial”.

2Copy pinpoint2. Since the petitions are founded on the two articles published in Caravan, it would be necessary to extract them in this judgment: D (i) Caravan article dated 20 November 2017: “On the morning of 1 December 2014, the family of 48-year-old judge Brijgopal Harkishan Loya, who was presiding over the Central Bureau of Investigation special court in Mumbai, was informed that he had died in Nagpur, where he had travelled for a E colleague’s daughter’s wedding. Loya had been hearing one of the most high-profile cases in the country, involving the allegedly staged encounter killing of Sohrabuddin Sheikh in 2005. The prime accused in the case was Amit Shah—Gujarat’s minister of state for home at the time of Sohrabuddin’s killing, and the Bharatiya F Janata Party’s national president at the time of Loya’s death. The media reported that the judge had died of a heart attack. Loya’s family did not speak to the media after his death. But in November 2016, Loya’s niece, Nupur Balaprasad Biyani, approached me while I was visiting Pune to say she had concerns about the circumstances surrounding her uncle’s death. Following G this, over several meetings between November 2016 and November 2017, I spoke to her mother, Anuradha Biyani, who is Loya’s sister and a medical doctor in government service; another of Loya’s sisters, Sarita Mandhane; and Loya’s father, Harkishan. H

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A I also tracked down and spoke to government servants in Nagpur who witnessed the procedures followed with regard to the judge’s body after his death, including the post-mortem. From these accounts, deeply disturbing questions emerged about Loya’s death: questions about inconsistencies in the reported account of the death; about the procedures followed after his death; and about the condition of the judge’s body when it was handed over to the family. Though the family asked for an inquiry commission to probe Loya’s death, none was ever set up. At 11 pm on 30 November 2014, from Nagpur, Loya phoned his wife, Sharmila, using his mobile phone. Over around 40 minutes, he described to her his busy schedule through the day. Loya was in Nagpur to attend the wedding of the daughter of a fellow judge, Sapna Joshi. Initially he had not intended to go, but two of his fellow judges had insisted that he accompany them. Loya told his wife that he had attended the wedding, and later attended a D reception. He also enquired about his son, Anuj. He said that he was staying at Ravi Bhavan, a government guest house for VIPs in Nagpur’s Civil Lines locality, along with the judges he had accompanied to Nagpur. It was the last call that Loya is known to have made, and the last conversation that he is known to have had. His family received the news of his death early the next morning. “His wife in Mumbai, myself in Latur city and my daughters in Dhule, Jalgaon and Aurangabad received calls,” early on the morning of 1 December 2014, Harkishan Loya, the judge’s father, told me when we first met, in November 2016, in his native village of Gategaon, near Latur city. They were informed “that Brij passed away in the night, that his post-mortem was over and his body had been sent to our ancestral home in Gategaon, in Latur district,” he added. “I felt like an earthquake had shattered my life.” G The family was told that Loya had died of a cardiac arrest. “We were told that he had chest pain, and so was taken to Dande Hospital, a private hospital in Nagpur, by auto rickshaw, where some medication was provided,” Harkishan said. Biyani, Loya’s sister, described Dande Hospital as “an obscure place,” and said that she “later learnt that the ECG”—the electrocardiography unit H

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at the facility—”was not working.” Later, Harkishan said, Loya A “was shifted to Meditrina hospital”—another private hospital in the city—”where he was declared dead on arrival.” The Sohrabuddin case was the only one that Loya was hearing at the time of his death, and was one of the most carefully watched cases then underway in the country. In 2012, the Supreme Court B had ordered that the trial in the case be shifted from Gujarat to Maharashtra, stating that it was “convinced that in order to preserve the integrity of the trial it is necessary to shift it outside the State.” The Supreme Court had also ordered that the trial be heard by the same judge from start to finish. But, in violation of this order, JT Utpat, the judge who first heard the trial, was C transferred from the CBI special court in mid 2014, and replaced by Loya. On 6 June 2014, Utpat had reprimanded Amit Shah for seeking exemption from appearing in court. After Shah failed to appear on the next date, 20 June, Utpat fixed a hearing for 26 June. The D judge was transferred on 25 June. On 31 October 2014, Loya, who had allowed Shah the exemption, asked why Shah had failed to appear in court despite being in Mumbai on that date. He set the next date of hearing for 15 December. Loya’s death on 1 December was reported only in a few routine E news articles the next day, and did not attract significant media attention. The Indian Express, while reporting that Loya had “died of a heart attack” noted, “Sources close to him said that Loya had sound medical history.” The media attention picked up briefly on 3 December, when MPs of the Trinamool Congress F staged a protest outside the parliament, where the winter session was under way, to demand an inquiry into Loya’s death. The next day, Sohrabuddin’s brother, Rubabuddin, wrote a letter to the CBI, expressing his shock at Loya’s death. Nothing came of the MPs’ protests, or Rubabuddin’s letter. No G follow-up stories appeared on the circumstances surrounding Loya’s death. Over numerous conversations with Loya’s family members, I pieced together a chilling description of what Loya went through while presiding over the Sohrabuddin trial, and of what happened H

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A following his death. Biyani also gave me copies of a diary she said she maintains regularly, which included entries from the days preceding and following her brother’s death. In these, she noted many aspects of the incident that disturbed her. I also reached out to Loya’s wife and son, but they declined to speak, saying that they feared for their lives. B Biyani, who is based in Dhule, told me that she received a call on the morning of 1 December 2014 from someone identifying himself as a judge named Barde, who told her to travel to Gategaon, some 30 kilometres from Latur, where Loya’s body was sent. The same caller also informed Biyani and other members of the family that C a post-mortem had been conducted on the body, and that the cause of death was a heart attack. Loya’s father normally resides in Gategaon, but was in Latur at the time, at the house of one of his daughters. He, too, received a phone call, telling him his son’s body would be moved to Gategaon. D “Ishwar Baheti, an RSS worker, had informed father that he would arrange for the body to reach Gategaon,” Biyani told me. “Nobody knows why, how and when he came to know about the death of Brij Loya.” 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 H

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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, “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, C 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.” Biyani recounted that when she saw the body, she felt that something was amiss. “There were bloodstains on the neck at the back of the shirt,” she told me. She added that his “spectacles were below the neck.” Mandhane told me that Loya’s spectacles were “stuck under his body.” A diary entry by Biyani from the time reads, “There was blood on his collar. His belt was twisted in the opposite direction, and the pant clip is broken. Even my uncle feels that this is suspicious.” Harkishan told me, “There were bloodstains on the clothes.” Mandhane said that she, too, saw “blood on the neck.” She said that “there was blood and an injury on his head … on the back side,” and that “his shirt had blood spots.” Harkishan said, “His shirt had blood on it from his left shoulder to his waist.” But in the post-mortem report, issued by the Government Medical College Hospital in Nagpur, under a category described as “Condition of the clothes—whether wet with water, stained with blood or soiled with vomit or foecal matter,” a handwritten entry reads, simply, “Dry.” Biyani found the state of the body suspicious because, as a doctor, “I know that blood does not come out during PM”—post- H

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A mortem—”since the heart and lungs don’t function.” She said that she demanded a second post-mortem, but that Loya’s gathered friends and colleagues “ discouraged us, telling us not to complicate the issue more.” The family was tense and scared, but was forced to carry out B Loya’s funeral, Harkishan said. Legal experts suggest that if Loya’s death was deemed suspicious—the fact that a post-mortem was ordered suggests that it was—a panchnama should have been prepared, and a medico-legal case should have been filed. “As per legal procedure, C the police department is expected to collect and seal all the personal belongings of the deceased, list them all in a panchnama and hand them over to the family as they are,” Asim Sarode, a senior Pune- based lawyer, told me. Biyani said the family was not given any copy of a panchnama. D Loya’s mobile phone was returned to the family, but, Biyani said, it was returned by Baheti, and not by the police. “We got his mobile on the third or fourth day,” she said. “I had asked for it immediately. It had information about his calls and all that happened. We would have known about it if we got it. And the SMSes. Just one or two days before this news, a message had come which said, ‘Sir, stay safe from these people.’ That SMS was on the phone. Everything was deleted from it.” Biyani had numerous questions about the events of the night of Loya’s death and the following morning. Among them was that of how and why Loya had been taken to hospital in an auto rickshaw, when the auto stand nearest to Ravi Bhavan is around two kilometres away from it. “There is no auto rickshaw stand near Ravi Bhavan, and people do not get auto rickshaws near Ravi Bhavan even during the day,” Biyani said. “How did the men accompanying him manage to get an auto rickshaw at midnight?” G Other questions, too, remain unanswered. Why was the family not informed when Loya was taken to hospital? Why were they not informed as soon as he died? Why were they not asked for approval of a post-mortem, or informed that one was to be performed, before the procedure was carried out? Who H

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recommended the post-mortem, and why? What was suspicious A about Loya’s death to cause a post-mortem to be recommended? What medication was administered to him at Dande Hospital? Was there not a single vehicle in Ravi Bhavan—which regularly hosts VIPs, including ministers, IAS and IPS officers and judges— available to ferry Loya to hospital? The winter session of the B Maharashtra state assembly was to begin in Nagpur on 7 December, and hundreds of officials usually arrive in the city well in advance of assembly sessions for the preparations. Who were the other VIPs staying in Ravi Bhavan on 30 November and 1 December? “These all are very valid questions,” Sarode, the lawyer, said. “Why was the report of the medication administered C at Dande hospital not given to the family? Will the answers to these questions create problems for someone?” Questions such as these “still keep bothering the family, friends and relatives,” Biyani said. It added to their confusion that the judges who had insisted that D Loya travel to Nagpur did not visit the family for “one or one and a half months” after his death, she said. It was only then that the family heard their account of Loya’s last hours. According to Biyani, the two men told the family that Loya experienced chest pain at around 12.30 am, that they then took him to Dande Hospital in an E auto rickshaw, and that there, “he climbed the stairs himself and some medication was administered. He was taken to Meditrina hospital where he was declared dead on arrival.” Even after this, many questions were left unanswered. “We did try to get the details of the treatment administered in Dande F Hospital, but the doctors and the staff there simply refused to divulge any details,” Biyani said. I accessed the report of Loya’s post-mortem, conducted at the Government Medical College Hospital in Nagpur. The document raises several questions of its own. G Every page of the post-mortem report is signed by the senior police inspector of Sadar police station, Nagpur, and by someone who signed with the phrase “maiyatachachulatbhau”—or the paternal cousin brother of the deceased. This latter person is H

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A supposed to have received the body after the post-mortem examination. “I do not have any brother or paternal cousin brother in Nagpur,” Loya’s father said. “Who signed on the report is another unanswered question.” Further, the report states that the corpse was sent from Meditrina B Hospital to the Government Medical College Hospital by the Sitabardi police station, Nagpur, and that it was brought in by a police constable named Pankaj, of Sitabardi police station, whose badge number is 6238. It notes that the body was brought in at 10.50 am on 1 December 2014, that the post-mortem began at 10.55 am, and that it was over at 11.55 am. C The report also noted that, as per the police, Loya “died on 1/12/ 14 at 0615 hours” after experiencing “chest pains at 0400 am.” It stated, “He was brought to Dande hospital first and then shifted to Meditrina hospital where he was declared to be in dead condition.” D The time of death cited in the report—6.15 am—appears incongruous, since, according to Loya’s family members, they began receiving calls about his death from 5 am onwards. Further, during my investigation, two sources in Nagpur’s Government Medical College and Sitabardi police station told me they had been E informed of Loya’s death by midnight, and had personally seen the dead body during the night. They also said that the post-mortem was done shortly after midnight. Apart from the calls that the family received, the sources’ accounts also raise serious questions about the post-mortem report’s claim that the time of death was F 6.15 am. The source at the medical college, who was privy to the post- mortem examination, also told me that he knew that there had been instructions from superiors to “cut up the body as if the PM was done and stitch it up.” G The report mentions “coronary artery insufficiency” as the probable cause of death. According to the renowned Mumbai-based cardiologist Hasmukh Ravat, “Usually old age, family history, smoking, high cholesterol, high blood pressure, obesity, diabetes are the causes for such coronary artery insufficiency.” Biyani H

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pointed out that none of these were applicable to her brother. A “Brij was 48,” she said. “Our parents are 85 and 80 years old, and are healthy with no cardiac history. He was always a teetotaller, played table tennis for two hours a day for years, had no diabetes or blood pressure.” Biyani told me that she found the official medical explanation for B her brother’s death hard to believe. “I am a doctor myself, and Brij used to consult me even for minor complaints such as acidity or cough,” she said. “He had no cardiac history and no one from our family has it.” (ii) Caravan article dated 21 November 2017: C “Brijgopal Harkishan Loya, the judge presiding over the CBI special court in Mumbai, died sometime between the night of 30 November and the early morning of 1 December 2014, while on a trip to Nagpur. At the time of his death, he was hearing the Sohrabuddin case, in which the prime accused was the Bharatiya D Janata Party president Amit Shah. The media reported at the time that Loya had died of a heart attack. But my investigations between November 2016 and November 2017 raised disturbing questions about the circumstances surrounding Loya’s death—including questions regarding the condition of his body when it was handed over to his family. E

Among those I spoke to was one of Loya’s sisters, Anuradha Biyani, a medical doctor based in Dhule, Maharashtra. Biyani made an explosive claim to me: Loya, she said, confided to her that Mohit Shah, then the chief justice of the Bombay High Court, had offered him a bribe of Rs 100 crore in return for a favourable F judgment. She said Loya had told her this some weeks before he died, when the family gathered for Diwali at their ancestral home in Gategaon. Loya’s father Harkishan also told me that his son had told him he had offers to deliver a favourable judgment in exchange for money and a house in Mumbai. G Brijgopal Harkishan Loya was appointed to the special CBI court in June 2014, after his predecessor, JT Utpat, was transferred within weeks of reprimanding Amit Shah for seeking an exemption from appearing in court. According to a February 2015 H

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A report in Outlook, “During the CBI court’s hearings that Utpat presided over for this one year, or even after, court records suggest Amit Shah had never turned up even once—including on the final day of discharge. Shah’s counsel apparently made oral submissions for exempting him from personal appearance on grounds ranging from him being ‘a diabetic and hence unable to move’ to the more B blase: ‘he is busy in Delhi.’” The Outlook report continued: “On June 6, 2014, Utpat had made his displeasure known to Shah’s counsel and, while allowing exemption for that day, ordered Shah’s presence on June 20. But he didn’t show up again. According to media reports, Utpat told C Shah’s counsel, ‘Every time you are seeking exemption without giving any reason.’” Utpat, the story noted, “fixed the next hearing for June 26. But on 25th, he was transferred to Pune.” This was in violation of a September 2012 Supreme Court order, that the Sohrabuddin trial “should be conducted from beginning to end by the same officer.” Loya had at first appeared well disposed towards Shah’s request that he be exempted from personally appearing in court. As Outlook noted, “Utpat’s successor Loya was indulgent, waiving Shah’s personal appearance on each date.” But this apparent indulgence may just have been a matter of procedure. According to the Outlook story, “significantly, one of his last notings stated that Shah was being exempted from personal appearance ‘till the framing of charges.’ Loya had clearly not harboured the thought of dropping charges against Shah even when he appeared to be gentle on him.” According to the lawyer Mihir F Desai, who represented Sohrabuddin’s brother Rubabuddin—the complainant in the case—Loya was keen on scrutinising the entire chargesheet, which ran to more than 10,000 pages, and on examining the evidence and witnesses carefully. “The case was sensitive and important, and it was going to create and decide the G reputation of Mr Loya as a judge,” Desai said. “But the pressure was certainly mounting.” Nupur Balaprasad Biyani, a niece of Loya’s who stayed with his family in Mumbai while studying in the city, told me about the extent of the pressure she witnessed her uncle facing. “When he H

TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 29 [DR. D. Y. CHANDRACHUD, J.]

was coming from the court, he was like, ‘bahut tension hai,’” A she said. “Stress. It’s a very big case. How to deal with it. Everyone is involved with it.” Nupur said it was a question of “political values.” Desai told me, “The courtroom always used to be extremely tense. The defence lawyers used to insist on discharging Amit Shah of all the charges, while we were demanding for the transcripts of the calls, submitted as evidence by the CBI, to be provided in English.” He pointed out that neither Loya nor the complainant understood Gujarati, the language on the tapes. But the defence lawyers, Desai said, repeatedly brushed aside the demands for transcripts in English, and insisted that Shah’s discharge petition be heard. Desai added that his junior lawyers often noticed unknown, suspicious-looking people inside the courtroom, whispering and staring at the complainant’s lawyers in an intimidating manner. D Desai recounted that during a hearing on 31 October, Loya asked why Shah was absent. His lawyers pointed out that he had been exempted from appearance by Loya himself. Loya remarked that the exemption applied only when Shah was not in the state. That day, he said, Shah was in Mumbai to attend the swearing-in of the new BJP-led government in Maharashtra, and was only 1.5 E kilometres away from the court. He instructed Shah’s counsel to ensure his appearance when he was in the state, and set the next hearing for 15 December. Anuradha Biyani told me that Loya confided in her that Mohit Shah, who served as the chief justice of the Bombay High Court F between June 2010 and September 2015, offered Loya a bribe of Rs 100 crore for a favourable judgment. According to her, 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 H

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A because at the same time, there was going to be another explosive story which would ensure that people would not take notice of this.” Loya’s father Harkishan also told me that his son had confided in him about bribe offers. “Yes, he was offered money,” Harkishan B 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.” C I contacted Mohit Shah and Amit Shah for their responses to the family’s claims. At the time this story was published, they had not responded. The story will be updated if and when they reply. After Loya’s death, MB Gosavi was appointed to the Sohrabuddin D case. Gosavi began hearing the case on 15 December 2014. “He heard the defence lawyers argue for three days to discharge Amit Shah of all the charges, while the CBI, the prosecuting agency, argued for 15 minutes,” Mihir Desai said. “He concluded the hearing on 17 December and reserved his order.”

E On 30 December, around one month after Loya’s death, Gosavi upheld the defence’s argument that the CBI had political motives for implicating the accused. With that, he discharged Amit Shah. The same day, news of MS Dhoni’s retirement from test cricket dominated television screens across the country. As Biyani F recounted, “There was just a ticker at the bottom which said, ‘Amit Shah not guilty. Amit Shah not guilty.’” Mohit Shah visited the grieving family only around two and half months after Loya’s death. From Loya’s family, I obtained a copy of a letter that they said Anuj, Loya’s son, wrote to his family on the day of the then chief justice’s visit. It is dated 18 February G 2015—80 days after Loya’s death. Anuj wrote, “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 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

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threat to our lives.” A Anuj wrote twice in the letter that “if anything happens to me or my family, chief justice Mohit Shah and others involved in the conspiracy will be responsible.” When I met him in November 2016, Loya’s father Harkishan said, “I am 85 and I am not scared of death now. I want justice too, but B I am extremely scared for the life of my daughters and grand children.” He had tears in his eyes as he spoke, and his gaze went often to the garlanded photograph of Loya hanging on the wall of the ancestral home.” Petitions C

3Copy pinpoint3. Tehseen Poonawalla filed a petition under Article 32 of the Constitution before this Court on 11 December 2017. He informs the Court that the proceedings have been initiated “bona fide for the welfare and benefit of the society as a whole..with no ulterior or mala fide motive”. He has averred that the petition was instituted for the “safety and security of the public and that of public servants” who “may not be aware of their legal rights” or possess the means to approach this Court. Besides the above writ petition, this Court has before it two other writ petitions under Article 32 on the same issue, one by Jayshri Laxmanrao Patil1 and another by Bandhuraj Sambhaji Lone2. Each of these petitioners has made similar averments, stating that the proceedings have been initiated for the “welfare of society” without any personal interest. Two writ petitions3 were filed in the High Court of Judicature at Bombay : Bombay Lawyers’ Association instituted the proceedings on 4 January 2018 and Suryakant (alias Suraj), on 27 November 2017. The relief sought in the batch of cases instituted before the Bombay High Court is similar to what is sought before this Court. All the petitions are essentially based on the articles which have been published in the Caravan on 20 and 21 November 2017. Other media publications, both print and online carried news reports emanating from the Caravan articles.Among them are the Indian Express, Quint, Wire and Scroll. G Procedural directions

4Copy pinpoint4. On 16 January 2018, a two judge Bench of this Court issued 1 Writ Petition (C)No 73 of 2018 2 Writ Petition (C)No 20 of 2018 3 Public Interest Litigation (Crl) No 2 of 2018 and Public Interest Litigation(Crl) No 1 of 2018 H

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A the following directions in the Article 32 proceedings: “Let the documents be placed on record within seven days and if it is considered appropriate copies be furnished to the petitioners. Put up before the appropriate Bench.” In view of the direction to put up the case before the appropriate Bench, B proceedings were mentioned before the learned Chief Justice on 19 January 2018 and were directed to be listed on 22 January 2018 “before the appropriate Bench as per roster”. On 22 January 2018 the State of Maharashtra filed documents in a sealed cover of which copies were made available to counsel for the petitioners. The documents were taken on the record. Mr Dushyant Dave and Ms Indira Jaising, learned senior counsel indicated that they would be filing applications for intervention. This Court permitted them to do so. This Court was informed by counsel for the intervenors that they would be placing on record some documents which may have bearing on the case. Mr Harish Salve, learned senior counsel for the State of Maharashtra stated before the Court that there would be no objection to supply any other official documents in a sealed cover of which a list may be submitted by assisting counsel for the parties. This Court was apprised of the pendency of two writ petitions before the Bombay High Court, one at the principal seat and the other at the Nagpur Bench. Since the issue raised in the writ petitions before the E Bombay High Court had the same subject matter, those petitions were transferred to this Court, to be heard along with the petitions under Article

32. Mr Dave, learned senior counsel appearing on behalf of the Bombay Lawyers’ Association agreed to this course of action. The order of this Court dated 22 January 2018 also records the agreement of Ms Jaising to the transfer of the writ petitions from the Bombay High Court. F Subsequently, Ms Jaising has clarified that since she is appearing for an intervenor and not for the petitioners in any of those writ petitions, her consent should not be recorded. We clarify the order dated 22 January 2018 to the effect that it was Mr Dave who has consented to the transfer of proceedings from the Bombay High Court.

5Copy pinpoint5. Following the order of transfer, the entire batch of cases together with several applications for intervention have been heard. Hearings in this batch of cases have taken place on 2 February 2018, 5 February 2018, 9 February 2018, 12 February 2018, 19 February 2018, 5 March 2018, 8 March 2018, 9 March 2018 and 16 March 2018. H

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6Copy pinpoint6. We have heard Mr Dushyant Dave, Ms Indira Jaising, Mr V A Giri, Mr Pallav Shishodia, Mr PV Surendranath, learned senior counsel and Mr Kuldip Rai and Mr Prashant Bhushan on behalf of the petitioners and the intervenors. Mr Mukul Rohtagi and Mr Harish Salve, learned senior counsel have appeared for the respondent State.

7Copy pinpoint7. In view of the nature of the issue which has been raised in the B proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure. In order to analyse the facts as they emerge before the Court, it is necessary to construct the sequence of events from the material before the Court. C

Sequence of events

8Copy pinpoint8. Shri Brijgopal Harkishan Loya (‘Judge Loya’) was presiding over the CBI Special Court in Mumbai. The criminal trial arising out of the encounter killings of Sohrabuddin Sheikh was assigned to his court. D Among the accused in the case was Amit Shah, the “national President of the Bharatiya Janata Party”. On 29 November 2014 Judge Loya travelled on an overnight train from Mumbai to Nagpur together with two other judicial officers, Shri Shrikant Kulkarni (“Judge Kulkarni”) and Shri S M Modak(“Judge Modak”) to attend the wedding in the family of another judicial officer, Smt Swapna Joshi who was then a Member E Secretary of the Maharashtra State Legal Services Authority. Judge Kulkarni was at the material time working as Registrar (Judicial-I) on the Appellate side of the Bombay High Court and Judge Modak was the Principal District Judge at Alibag. Judge Loya was a Judge in the City Civil and Sessions Court at Mumbai. On 30 November 2014, Judge Loya F and his colleagues attended the wedding reception. According to his colleagues, all of them stayed at Ravi Bhavan, a government guest house at Nagpur. This has been a contentious issue. In the early hours of 1 December 2014 Judge Loya is stated to have complained of chest pain. He was initially taken to Dande hospital, in close proximity of Ravi Bhavan. From there he was referred to a cardiac care facility. His G colleagues are stated to have accompanied him to Meditrina hospital. Judge Loya died before he was admitted to Meditrina, since he was stated to have been ‘brought dead’. There was an inquest panchnama followed by a post-mortem. After the formalities were completed, the body was taken to Gategaon, his village near Latur, nearly 450 kilometres H

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A away where the cremation took place. Issues

9Copy pinpoint9. The issue before the Court is whether the death of Judge Loya was due to natural causes, or as alleged by the petitioners (relying on the contents of news items or material which has come before the B Court),there are circumstances which raise a reasonable suspicion about an unnatural death, warranting an inquiry or investigation on the directions of this Court. Moreover, should the contents of a news article by itself be made the basis to lodge an FIR under Section 154 of the Code of Criminal Procedure 1973. C B The Discreet Enquiry

10Copy pinpoint10. Following the publication of the Caravan articles, the Principal Secretary (Special) in the Home Department of the state government directed a discreet inquiry by the Commissioner of the State Intelligence Department. Such an inquiry was initiated by Shri Sanjay Barve, Director D General and Commissioner in the State Intelligence Department. By a communication dated 23 November 2017 addressed to the Chief Justice of the Bombay High Court, he indicated that: “2. Following judicial officers had accompanied Mr. Loya to the hospital on 01/12/2014. E 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 F iv. Mr R RRathi – District Judge, Baramati. Similarly, Hon’ble Justice Bhushan Gawai and Hon’ble Justice SB Shukre has also visited Meditrina Hospital, Nagpur after learning about the sad demise of the aforesaid judicial officer on 01/12/2014.” G The Commissioner sought the permission of the Chief Justice “to record the say of the above judicial officers” either in the form of a statement or a letter elaborating the sequence of events and the facts known to them in the matter. The Registrar General of the High Court, by a letter dated 23 November 2017, responded to the request and stated that the H

TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 35 [DR. D. Y. CHANDRACHUD, J.]

Chief Justice had granted the permission “to record the say” of the four judicial officers – Judge Shrikant Kulkarni, Judge Modak, Judge Barde and Judge RR Rathi. The report of the discreet inquiry dated 28 November 2017 was submitted to the Additional Chief Secretary (Home). The contents of the report are summarised below: i. Judge Loya was in Nagpur to attend the wedding in the family of a colleague on 30 November 2014 along with his colleagues, Judge Kulkarni and Judge Modak, both in the rank of Principal District Judges; ii. The three judicial officers stayed at Ravi Bhavan; iii. In the early hours of 1 December 2014 Judge Loya complained of chest pain. Judge Shrikant Kulkarni called Judge Barde who was posted at Nagpur. Judge Barde informed Judge RR Rathi, Deputy Registrar of the Bench of the High Court at Nagpur and both of them reached Ravi Bhavan. In the meantime Judge Kulkarni had also intimated another colleague, Judge Waikar about Judge Loya’s ill health between 0400 hours and 0415 hours; iv. Judge Loya was taken to Dande Hospital in the vehicle of Judge Barde. Judge Kulkarni, Judge Modak and Judge Rathi accompanied them to the hospital. After initial examination, he was advised to be taken to a cardiac centre; v. The report in the Caravan article that Judge Loya was taken to Dande hospital in an auto rikshaw is incorrect; vi. The Deputy Registrar Judge RR Rathi in the meantime called his relative, Dr Pankaj Harkut, a cardiologist who advised him to bring the patient to Meditrina hospital. Following this conversation at about 0500 hours, the accompanying judges took Judge Loya to Meditrina hospital; vii. Judge Loya was shifted to Meditrina hospital, where he was admitted by Judge Shrikant Kulkarni. He was provided emergency treatment at Meditrina hospital but was declared dead at 0615 hours on 1 December 2014; viii. The ‘progress notes’ of the doctor at Meditrina hospital indicate that a post-mortem was advised. This sets at rest the doubts H

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A raised in the Caravan article about who had recommended the post-mortem; ix. Meditrina hospital furnished information of a medico-legal case to Sitabardi police station, of the patient being brought dead. The police station at Sitabardi registered AD 00/2014 B under Section 174 of the Code of Criminal Procedure 1973. This was subsequently transferred to Sadar police station where AD 44/2014 was registered at 1600 hours, on 1 December 2014. The ADs were registered on the information of one Dr Prashant Rathi; C x. Dr Prashant Rathi was informed about Judge Loya’s illness by his relative (Rukmesh Jakhotiya) from Aurangabad who requested him to help in attending to Judge Loya; xi. The Caravan article raised certain doubts about the role of one Ishwar Baheti. In that context, the report of the D Commissioner contains the following explanation: “3.8 Mr Ishwar Govindlal Baheti, who runs a medical pharmacy at Latur was an old friend of Mr Loya for over 35 years. Ishwar Govindlal Baheti’s eldest brother, Dr Hansraj Govindlal Baheti [r/o Latur] got a call in the wee hours of 01-12-2014 informing E him about Mr Loya’s health. On learning about his friend’s condition from his brother [Dr Hansraj], Ishwar Govindlal Baheti called up his relative in Aurangabad, Mr Rukmesh Jakhotiya, who in turn requested Dr Prashant Rathi of Nagpur to provide assistance and care to Mr Loya. Mr Ishwar Govindlal Baheti also called up another cousin of Dr Loya, Mr F Om Bhutada and got in touch with the Latur-based relatives of Mr Loya. During verification, Mr Ishwar Govindlal Baheti claimed that he was a worker and well-wisher [“karyakarta & shubh-chintak”] of late Mr Vilasraoji Deskhmukh and that he was not connected with RSS. Late Mr Brijgopal Loya’s father, G Shri Harkishan Ramchandra Loya, confirmed to the undersigned that Ishwar Baheti was a close friend of his son and that he was ‘like a brother’ to him. Mr Loya’s son, Anuj, has stated as follows: “my uncle, Mr Iswar Baheti had organized a big function in memory of my father on his first death anniversary according to panchang on 06-12-2015 at Gategaon, H

TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 37 [DR. D. Y. CHANDRACHUD, J.]

Latur where everyone from my family including my grandfather A Harkishanji and my aunty Dr Anuradha were present.” My verification revealed that Loya family held Mr Ishwar Baheti in very high esteem and treated him as a member of the family. 3.8.1 Incidentally, another gentleman by name Ishwar-prasad Bajranglal Baheti, @ 60 confirmed during the verification that B he used to be active in RSS long ago and that presently, he runs a shop called Radhey Shubhmangal Stores & Handicrafts in Latur. He also confirmed that he did not know Mr Loya and that he had not made any calls in connection with Mr Loya’s health to anybody. C 3.8.2 One more person by name – Ishwarlal Jawaharlal Baheti lives in Nilanga, District Latur where he runs a shop called Amrit General Stores. During verification, he also confirmed that he did not know Mr Loya. 3.8.3 The above details dispel the doubts raised in the Caravan D report about the role of Mr Ishwar Baheti.” xii. Judge Barde and Judge Modak informed Judge Loya’s relatives about his ill-health and death. The Principal Secretary to the Chief Justice and other Judges at the Nagpur Bench were also informed. Chief Justice Mohit Shah and Justices Bhushan E Gavai, Justice SB Shukre and Justice PR Bora visited Meditrina hospital around 0700 hours on 1 December 2014. The Chief Justice directed the officials present there to make necessary administrative arrangements; xiii.The entire sequence of events was narrated in the statements F filed by the four judicial officers – Judge Kulkarni, Judge Modak, Judge Barde and Judge RR Rathi; xiv.An inquest was conducted between 1000 hours and 1030 hours on 1 December 2014. The post-mortem was conducted between 1055 hours and 1155 hours on 1 December 2014. G The post-mortem report indicates the absence of any bodily injury and notes the cause of death as “coronary artery insufficiency”. The report of the Regional Forensic Science Laboratory indicates that no traces of poison have been found; xv. The factual position indicates that Judge Loya suffered a heart H

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A attack in the early hours of 1 December 2014 and died in consequence. His body was sent to village Gategaon in Latur in an ambulance. Two judicial magistrates from Nagpur,Mr Yogesh Rahangdale and Mr Swayam Chopda were deputed by Judge Sonawane, Principal District Judge, Nagpur to accompany the body. The statement in the Caravan article B that the body was not accompanied by anyone is incorrect; xvi. Intimation of the death was furnished to the members of the family of Judge Loya and to his colleagues who resided at Haji Ali, Mumbai by Judge Barde and Judge Modak in the early hours of 1 December 2014; C xvii.The claim in the Caravan article that sources in the Government Medical College and Sitabardi police station had seen the body during the course of the night was devoid of substance; D xviii.The reference in the Caravan article to blood-stains on the neck of the deceased is contrary to the post-mortem report which stated that there were no external injuries on the body; xix. The members of Judge Loya’s family including his son, wife, father and sister have not supported the insinuations in the E Caravan article; and xx. The second article in Caravan dated 21 November 2017 contains unfounded insinuations against the former Chief Justice of the Bombay High Court Shri Justice Mohit Shah. They have been levelled on the basis of an array of hearsay versions. F The report concludes by stating that the article published in the Caravan “made several unsubstantiated claims and is replete with falsehoods”. The conclusion of the discreet inquiry is that Judge Loya suffered a heart attack in the presence of his colleagues belonging to the judicial fraternity. They had made all possible efforts to provide medical assistance G to save him. Judge Loya died as a result of natural causes. C Submissions: I The petitioners and intervenors

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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 39 [DR. D. Y. CHANDRACHUD, J.]

A Mr Dushyant Dave A

11Copy pinpoint11. Mr Dushyant Dave, learned senior counsel appearing on behalf of the Bombay Lawyers’ Association has premised his submissions on the foundation that the cause which he represents raises “serious questions of general importance as to (the) independence of judiciary” and the protection of the subordinate judiciary against threats or attacks. Mr B Dave emphasised the role espoused by the petitioners, by adverting to the decision of this Court in Delhi Judicial Service Association, Tis Hazari Court, Delhi v State of Gujarat4 in which this Court regarded an assault on a judicial officer as something which affected judicial authority as well as the administration of justice in the entire country. An impassioned plea has been made that the Court should have regard to C the background of this case, originating in the judgment in Rubabbuddin Sheikh v State of Gujarat5.While transferring the investigation to the CBI, this Court observed: “..in order to make sure that justice is not only done, but also is seen to be done and considering the involvement of the State D police authorities and particularly the high officials of the State of Gujarat, we are compelled even at this stage to direct the CBI Authorities to investigate into the matter.” After this court directed a CBI investigation into the killings of Sohrabuddin and his wife Kauserbi, a charge-sheet was submitted against a number of accused including Amit Shah, the then Minister of State for Home in the State of Gujarat. Subsequently, in Narmada Bai v State of Gujarat6 this Court directed a separate investigation by the CBI into the killing of Tulsiram Prajapai, which, it has been submitted, was a part of the conspiracy to kill Sohrabuddin and Kauserbi. In issuing these directions, this Court held thus: “It is not in dispute that it is the age-old maxim that justice must not only be done but must be seen to be done. The fact that in the case of murder of an associate of Tulsiram Prajapati, senior police officials and a senior politician were accused may shake the confidence of public in investigation conducted by the State police. If the majesty of the rule of law is to be upheld and if it is to be 4 (1991) 4 SCC 406 5 (2010) 2 SCC 200 6 (2011) 5 SCC 79 H

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A ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to CBI.” Subsequently, in Central Bureau of Investigationv Amitbhai Anil Chandra Shah7,while upholding the grant of bail by the Gujarat High B Court, this Court ordered the transfer of the criminal case outside the State of Gujarat to the State of Maharashtra. The following directions were issued: “In another decision in Ravindra Pal Singh v Santosh Kumar Jaiswal8, this Court directed for transfer of the case outside the C State because some of the accused in a case of fake encounter were policemen. The case in hand has far more stronger reasons for being transferred outside the State. We, accordingly, direct for the transfer of Special Case No.5 of 2010 pending in the Court of the Additional Chief Metropolitan Magistrate, CBI, Courtroom No 2, Mirzapur, Ahmedabad titled CBI v D. G. Vanzara to the D Court of CBI, Bombay. The Registrar General of the Gujarat High Court is directed to collect the entire record of the case from the Court of the Additional Chief Metropolitan Magistrate, CBI, Room No 2, Mirzapur, Ahmedabad and to transmit it to the Registry of the Bombay High Court from where it would be sent E to the CBI Court as may be decided by the Administrative Committee of the High Court. The Administrative Committee would assign the case to a court where the trial may be concluded judiciously, in accordance with law, and without any delay. The Administrative Committee would also ensure that the trial should be conducted from beginning to end by the same officer.” F Mr Dave submitted that an application for discharge under Section 227 of the Code of Criminal Procedure was moved by Amit Shah in 2013. His application for exemption from personal appearance was declined by Judge JT Utpat who was nominated by the Administrative Committee of the Bombay High Court in pursuance of the directions extracted above. G Before the proceedings could be taken up, it was alleged, Judge Utpat was transferred on 25 June 2014 by the Administrative Committee of the Bombay High Court contrary to the directions contained in the judgment of this Court dated 27 September 2012. Following the transfer, 7 (2012) 10 SCC 545 8 (2011) 4 SCC 746 H

TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 41 [DR. D. Y. CHANDRACHUD, J.]

Judge Loya was appointed as CBI judge in which assignment he continued until his death on 1 December 2014. Mr Dave urges that the decision to transfer Judge Utpat, without seeking appropriate orders of this Court “raises serious questions, if not doubts, about the functioning of the Administrative Committee of the High Court”. After Judge Loya died on 1 December 2014, a new appointment of Judge MB Gosavi was initiated. The discharge application was allowed on 30 December 2014. Mr Dave has categorically stated before the Court that the legality of the order of discharge is not being questioned in the present proceedings. CBI, it has been submitted, did not assail the order of discharge though it subsequently filed appeals against the discharge of some police officers. Rubabuddin, the original petitioner also challenged the order of discharge but withdrew the application for condonation of delay thus rendering the criminal revision application as not maintainable before the Bombay High Court.

12Copy pinpoint12. Based on this background, Mr Dave has submitted that the respondents should be directed to file “appropriate affidavits” on oath having regard to the fact that the jurisdiction under Article 32 is extraordinary in its nature and scope.

13Copy pinpoint13. Mr Dave has submitted that the discreet inquiry and report prepared by the Commissioner of the State Intelligence Department is an attempt to stall an independent investigation. It is, according to him, unusual for the state government to order a discreet inquiry on the basis of a report published in a news periodical. Highlighting the sequence of events, it is urged that on 23 November 2017, the state government directed the Commissioner to conduct a discreet verification and on the same day, a letter was addressed to the Chief Justice of the Bombay High Court seeking to record the say of the four judicial officers who had accompanied Judge Loya to the hospital on 1 December 2014. The High Court of Bombay communicated the approval of the Chief Justice on the same day. The judicial officers submitted their statements within a day. The report was submitted by the Commissioner on 28 November 2017, within five days. There is, in his submission, a sense of alacrity which is not ordinarily found amongst public functionaries.

14Copy pinpoint14. The documents and statements which form part of the report of the Commissioner of State Intelligence have been called into question on the basis of the following submissions: H

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A “(i) The death investigation report prepared under Section 174 of the Code of Criminal Procedure Code by PSI RK Mundhe of the Sitabardi police station, Nagpur city dated 1 December 2014 records that the body of the deceased was identified by Dr Prashant Rathi and does not refer to the presence of any other individual, including the judicial officers; B (ii) The case papers of Meditrina hospital record that the patient was brought dead to the hospital and was admitted by Judge Shrikant D Kulkarni who disclosed his relationship with the deceased as a friend. The progress notes of the doctor recorded that the accompanying person had indicated that the patient had suffered chest pain. The bill prepared by Meditrina hospital inexplicably contains charges for non-invasive lab, neurosurgery, diet consultationand non-medical expenses(the total bill being in the amount of Rs 4290); (iii) The post-mortem report describes the shirt and jeans worn by the deceased. It has been urged that if Judge Loya had suffered a heart attack in his sleep, it would not be conceivable that he would be sleeping in such clothes. The rigor mortis was found to be slightly present either in the upper limbs but not in the lower limbs. The submission is that if the cause of death was due to coronary artery insufficiency, rigor mortis would have set in fully. As against this, the form under which the dead body was sent for post-mortem indicates that rigor mortis was well marked; (iv) The report of the Regional Forensic Science Laboratory dated 5 February 2015 indicates that the viscera did not reveal any trace of poison. Analysis commenced on 5 January 2015 and was completed on 19 January 2015 in pursuance of AD 44/2014 of PS Sadar under Section 174 of the Cr PC. On 1 December 2014 Sitabardi police station which was investigating the matter had forwarded the body for post-mortem through police constable Pankaj. Doubt has been caston the histo-pathologialreport of 5 G February 2015 on the ground that it refers to PS Sadar instead of Sitabardi. On 10 December 2014,Sadar police station addressed a letter to the Government Medical hospital, Nagpur to correct the name of Judge Loya from Brijmohan Harikishan Loya to

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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 43 [DR. D. Y. CHANDRACHUD, J.]

Brijgopal Harikishan Loya. It has been urged that if Judge Loya A was accompanied by his colleagues, his name would not have been furnished incorrectly to the hospital; (v) The record indicates that Sadar police station made a fresh accidental death summary almost one and a half years later on 2 February 2016. While doing so, the officer of PS Sadar recorded B as follows: “Sir, PSI SD Warade was day officer on 01/12/2014, he got AD no 00/14, 174 CrPC from PC PANKAJ b No 6238 [from Sitabardi Police Station]. The said AD was that of Shri Brijgopal C Harikishan Loya, age 48 years, resident of Hajiali Government Colony, Building No 11, Mumbai. On perusing the case diary, I found that the place of occurrence is in jurisdiction of Police Station Sadar, so I registered AD No 44/14, u/s 174 Cr PC.” D If AD 44/14 was registered in February 2016, it was urged, there is a contradiction in the reference to the above AD in the report of the Regional Forensic Science Laboratory dated 5 February 2015; E (vi) The statements of the four judicial officers “omitted to say much more than what they have stated”. None of them has furnished the suite number at Ravi Bhavan in which Judge Loya stayed during the night of 30 November 2014. The register of Ravi Bhavan does not contain any entry of Judge Loya having stayed there. The account of Judge Kulkarni that he stayed with F Judge Loya and Judge Modak in the same suite at Ravi Bhavan has been called into question. The conduct of the judicial officers at Nagpur is criticized on the ground that none of them claims to have informed the family after the death had occurred.Judge Barde in his statement recorded that he and Judge Kulkarni had met the G relatives of the deceased after a few days at Mumbai, which is submitted to be unnatural; (vii) If indeed, the Chief Justice of the Bombay High Court, the

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A Registrar General, judges of the High Court and judicial officers were present in the hospital, efforts would have been made to ensure that the family of Judge Loya travels to Nagpur by the next available flight; (viii) While in 2015 Judge Loya’s son had addressed a letter for the filing of an FIR or for instituting an inquiry into the death, and his father and sister had demanded an inquiry in video recorded interviews with Caravan and alleged that the Chief Justice of the Bombay High Court had made an effort to bribe Judge Loya, the subsequent statements of the members of the family have been extracted by the State Intelligence Department and ought not to be relied upon; (ix) The security of Judge Loya was withdrawn on 24 November 2014 a week before his death; (x) The Commissioner in the State Intelligence Department did not meet any person nor did he visit any place to satisfy himself of the truthfulness of the statements or facts; (xi) The statement of Dr Prashant Rathi was recorded on 22 November 2017 by the police at Nagpur though the discreet inquiry was ordered on 23 November 2017; E (xii)The press interviews given by Justice Bhushan Gavai and Justice SB Shukre of the Bombay High Court to the Indian Express on 27 November 2017 contain a repetition of what the four district judges had mentioned in their letters. This raised a grave suspicion as to why the interviews were given to the press in the first place; F (xiii) The Commissioner ought to have examined the statements made by the father, sister and son of Judge Loya to Caravan; (xiv) If Judge Loya had suffered a heart attack, his colleagues instead of taking him to Dande hospital ought to have shifted him to a reputed cardiac facility some of which were situated within a G distance of five kilometres from Ravi Bhavan. That the judicial officers did not rush their colleague to “the best hospital available” raises doubts about the theory that they had accompanied Judge Loya; and (xv) While on one hand Dr Dande claimed that an ECG was H taken, Judge Rathi in his statement has recorded that at Dande

TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 45 [DR. D. Y. CHANDRACHUD, J.]

hospital the ECG machine was not working.” A On the above grounds, it has been submitted, that the report of the Commissioner of State Intelligence should be rejected. An independent inquiry by a Special Investigating Team has been sought. He has suggested to the Court that this is a fit case for initiating the in-house procedure against two judges of the Bombay High Court for granting an interview B to the media.