TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR.

[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 to the media.

15Copy pinpoint15. Mr Dave has submitted an application that he may be allowed to cross-examine the four judicial officers whose statements have been relied upon in the report submitted by the Commissioner of State Intelligence. In support of his application Mr Dave has relied upon the decision of this Court in K. K. Kochunni v State of Madras9 and on the provisions contained in Order IX of the SC Rules. Cross-examination has been sought of the following persons: “1 Mr Sanjeev Barve, Director General/Commissioner, State Intelligence Department, Maharashtra, D 2 Dr Prashant Bajrang Rathi, Resident of Sai Regency, Ravi Nagar, Nagpur, 3 Mr Niranjan Takle, Reporter of CARAVAN, 4 Shri Shrikant D Kulkarni, Member Secretary, Maharashtra State E Legal Service Authority 5 Shri SM Modak, Principal District Judge, Pune, 6 Shri Vijay C Barde, Additional Sessions Judge, City Civil and Sessions Court, Greater Bombay 7 Dr Pinak Gangadhar Rao, Dande, Ram Nagar, Nagpur F

8 Shri Anuj Brij Gopal Loya, s/o late Sh. BH Loya 9 Smt Sharmila Brij Gopal Loya w/o Sh. BH Loya 10 Shri Hari Kishan Ramchandra Loya, f/o late Sh BH Loya G 11 Dr Anuradha BalaprasadBiyani, sister of late Sh. BH Loya.” Mr Dave urged that the State should be directed to file an affidavit controverting the allegations contained in the petition.

9 (1959) Supp (2) SCR 316 H

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A B Ms Indira Jaising:

16Copy pinpoint16. Ms Jaising has appeared on behalf of an intervenor (Admiral Ramdas). Ms Jaising urges that the following circumstances create a suspicion that the death of Judge Loya was not due to natural causes: (i) The absence of any entry in the register at Ravi Bhavan B recording the name of Judge Loya as an occupant on 30 November and 1 December 2014; ii. The improbability of three judicial officers residing in one room of Ravi Bhavan; iii. The mis-spelling of the name of Judge Loya in the records of C Dande hospital and Meditrina hospital and in the post-mortem report, despite the fact that several judicial officers were alleged to be present; iv. Non-production of the ECG carried out at Dande hospital and the date of 30 November 2014 contained in the ECG published in the Indian Express on 27 November 2017; D v. The statement of judge Rathi that the ECG facility at Dande hospital was not working; vi. The failure of the police to involve the Executive Magistrate on 1 December 2014 when an accident report was generated at Sitabardi police station at 8.30 am; E vii. Contradictions in the post-mortem report: a. Correction of the name on 10 January 2015; b. The date of death is shown as 7 December 2014; c. The over-writing of the date of death from 30 November F 2014 to 1 December 2014; d. The cause of death as Coronary Artery Insufficiency; viii. The failure to prepare a panchnama of the personal belongings of the deceased which assume significance from the statement of the G sister of the deceased to Caravan that his cell phone was returned a few days later with all messages deleted; ix. The first accidental death report (AD 00/14) under Section 174 Cr PC was recorded at Sitabardi. The second AD 44/2014 was recorded at 1600 hours at Sadar police station without the Executive Magistrate being informed; H

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[DR. D. Y. CHANDRACHUD, J.]

x. The failure to produce the case diary of PS Sitabardi or Sadar; A xi. Failure to follow the procedure prescribed by law under Section 174 Cr PC. No inquiry was carried out by the police or by anyone else at the inquest under Section 174; xii. Dr Prashant Rathi was not a ‘relative’ within the meaning of Section 176 Cr PC; B

xiii. Furnishing of information to the Executive Magistrate in respect of the accidental death summary on 2 February 2016; xiv. The grievance of the Judge Loya’s sister to Caravan that the ambulance containing the dead body was not accompanied by any judicial officer; xv. The letter dated 18 February 2017 of Anuj Loya requesting the Chief Justice of the Bombay High Court to conduct an inquiry. Ms Jaising has urged submissions on the scope of provisions of Section 157 of CrPC. The submission is that the expression “reason to suspect the commission of an offence” must receive an appropriate construction since at that stage, the question of technical proof of facts alleged in the first information report does not arise (State of Haryana v Bhajan Lal)10. In the present case, it was urged that upon the death of Judge Loya, the police appeared to have treated it as an accidental death and generated AD 00/14 under Section 174 of the Cr PC. The police were bound to follow the procedure prescribed by law. As held by this Court in Ashok Kumar Todi v Kishwar Jahan11 the police may either close the case or register an FIR and investigate into the offence. Neither was an investigation conducted under Section 174 Cr PC, nor was an FIR recorded; and xvi. Ms Jaising adverted to the decision in Zahira Habibullah Sheikh v State of Gujarat12 in which it was held: “35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of

10 (1992) Supp (1) SCC 335 11 (2011) 3 SCC 758 12 (2006) 3 SCC 374 H

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A fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice—often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. D The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.” E Reliance was also placed on the following observations contained in the decision in Vineet Narain v Union of India13: “3. The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all government agencies, entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenet of rule of law: “Be you ever so high, the law is above you.” Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the government agencies.” In the submission of Ms Jaising, there is a chain of suspicious 13 (1996) 2 SCC 199 H

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[DR. D. Y. CHANDRACHUD, J.]

circumstances which warrants a court monitored investigation. These A have been summarised as follows: a. Inconsistencies in the documents produced by the State of Maharashtra; b. Statements made by the family which appeared in the Caravan dated 20 November 2017 and 21 November 2017 and the B contradictory statements by the two sitting judges of the High Court in the Indian Express dated 27 November 2017; c. The statements made by the family of the deceased to Niranjan Takle of Caravan that they suspect foul play; C d. Contradiction of those statements by the family in documents produced by the State of Maharashtra; e. Non-compliance with the provisions of Section 174 Cr PC; f. The absence of the family during the post-mortem; D g. The handing over of the body to Dr Prashant Rathi who was a stranger; h. The misspelling of the name of the deceased in medical documents; i. The absence of the name of Judge Loya in the occupancy E register of Ravi Bhavan; j. The transfer of the earlier judge, Judge Utpat a day before the hearing of the Sohrabuddin trial in the teeth of the judgment in CBI v Amitbhai Anil Chandra Shah14; and k. The fact that the incoming judicial officer after Judge Loya’s F death discharged one of the accused within a month of his assuming charge. C Mr PV Surendranath:

17Copy pinpoint17. Mr PV Surendranath, learned senior counsel appearing on G behalf of All India Lawyers’ Union, an intervenor, submitted that the scope of the present hearing is only confined to the death of Judge Loya on 1 December 2014 and does not extend to the “Sohrabuddin fake encounter case trial..or its trajectory; the transfer of the predecessor 14 (2012) 10 SCC 545 H

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A officer etc.” Relying on the decision of this Court in Vineet Narain (supra), Mr Surendranath submitted that the setting up of a Special Investigation Team is warranted, having regard to the nature of the crime in the Sohrabuddin case, the status of the accused, circumstances which led to the transfer of the proceedings from Gujarat to Maharashtra; the discharge of some of the accused after a new judicial officer took charge B upon the death of Judge Loya and the absence of security for Judge Loya at the relevant time. In his submissions, the contradictory versions given by close relatives of the deceased judge is in itself a reason to order a formal investigation under the Cr PC by registering an FIR. D Mr Prashant Bhushan: C

18Copy pinpoint18. Mr Prashant Bhushan, learned counsel appearing on behalf of the Centre for Public Interest Litigation has filed an application for intervention. The affidavit in support of the application has been sworn and verified by Mr Prashant Bhushan. Reiterating the contents of the application, it has been urged that on 11 February 2018 Caravan published D a report stating that the post-mortem report and histo-pathology report that accompanied the sample of the viscera were submitted to Dr RK Sharma, a former Head of Forensic Medicine and Toxicology at AIIMS. Mr Bhushan submitted that the intervenor obtained a copy of the histo- pathology report and a copy of the ECG. The expert opinion of Dr RK E Sharma, it has been submitted, indicates that there was no evidence of myocardial infarction and though changes were observed in the condition of the heart, they are not conclusive to show coronary artery insufficiency. Moreover, emphasis has been placed on the fact that the post-mortem report indicated congestion in the dura which would indicate that the possibility of poisoning cannot be ruled out. F

19Copy pinpoint19. Mr Prashant Bhushan states that the intervenor submitted a copy of the ECG and histo-pathology report to Dr Upendra Kaul, a former Professor of Cardiology at AIIMS. Mr Prashant Bhushan addressed an e-mail to Dr Kaul, attaching the ECG and histo-pathology report and addressed three questions which read as follows: G “1. Could this person have suffered a serious heart attack, one- two hours before this ECG is taken? In other words, is this ECG consistent with the ECG of a person who has had a serious myocardial one to two hours before this ECG is done?

2. Is the histopathology report of his coronary arteries and heart H

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[DR. D. Y. CHANDRACHUD, J.]

muscle consistent with his death being due to acute myocardial infraction or coronary thrombosis?

3. In addition I would also like to ask you whether a person who has died due to myocardial infraction could show significant congestion of the dura, liver, spleen, kidney, larynx, trachoa and Bronchi, lungs. Is it possible for this congestion of all his organs as mentioned in the post mortem report, to have taken place because of CPR administrated at the time of his death?” In reply Dr Kaul has stated thus: “1. Most unlikely, the ECG has no evidence of a recent myocardial infraction. C

The histo-pathology of heart muscle says it is normal. The coronary artery block in LAD could be an innocent bystander.

2. Unlikely to be because of a recent MI but could be because of an intensive CPR.” D Mr Bhushan submitted that he has also spoken to “other reputed cardiologists” who have “also given essentially the same opinion”. Mr Bhushan has submitted that the statements by the four judges which were produced in court have not been filed on affidavit. Besides, the statements of the four judicial officers would only indicate that Judge E Loya complained of chest pain following which he died on the way to Meditrina hospital. According to him, the eye-witness accounts would be consistent with other causes of death including poisoning. Virtually at the end of his submissions, Mr Bhushan queried this Court as to whether two members of the Bench (Justice AM Khanwilkar and Justice DY Chandrachud) would like to hear the matter since it may be that as judges of the Bombay High Court earlier they may have been acquainted with the four judicial officers and the two judges (Justice Gavai and Justice Shukre). In response to his query we had inquired of Mr Bhushan as to whether he intended to file an application for recusal. No application for recusal has been filed. Mr Bhushan has stated that he leaves the matter there. E Mr PallavShishodia:

20Copy pinpoint20. Mr Pallav Shishodia, learned senior counsel, has urged in his submissions that: H

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A “These stories have led to a tide of insinuations, questions on integrity of our judicial system and war of recriminations. The present writ proceedings also appear to have found resonance in one eminent press conference as also led to open aspersions cast on the some of the judges of this Hon. Court hearing the matter. In the circumstances, it is submitted that an independent probe B cannot be one way traffic in which persons making allegations can just “hit and run” without any responsibility to damages caused to the reputation, prestige and faith in institutions including this Hon’ble Court and judiciary as a whole” F Mr V Giri: C

21Copy pinpoint21. Mr V Giri, learned senior counsel has independently urged submissions similar to those which have been urged before the court by the other learned senior counsel. Much of what has been argued by earlier counsel has been reiterated. His assisting counsel urged during the course of his rejoinder that the judges who were present with Judge D Loya were a party to the conspiracy. II State of Maharashtra A Harish Salve:

22Copy pinpoint22. Mr Harish Salve, learned senior counsel submitted that judicial E review is a potent weapon to preserve the rule of law. Though counsel for the petitioners asserted that the petitions were instituted to preserve the independence of the judiciary, the nature of the allegations and the tenor of the submissions indicate that the effort is to launch a frontal attack on judicial independence. Judges of the district judiciary are in a F vulnerable position and it was urged that it is all the more necessary in the facts of this case for this Court to assert its authority to protect them from the indiscriminate attacks levelled by counsel appearing on behalf of the petitioners. B Mr Mukul Rohtagi:

23Copy pinpoint23. Mr Mukul Rohtagi, learned senior counsel submitted that though the batch of present cases is styled as petitions filed in the public interest, reality is far away from the principles enunciated by this Court in State of Uttaranchal v Balwant Singh Chaufal 15. The petitions as well as the submissions urged in support constitute an attempt to scandalise the 15 H (2010) 3 SCC 402

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[DR. D. Y. CHANDRACHUD, J.]

judiciary and sensationalise the issue. A Mr Mukul Rohatgi submitted that: (i) Judge Loya died on 1 December 2014 at Nagpur and was cremated at Gategaon, near Latur in the presence of his family and friends. Three years later, on 20 and 21 November 2017 articles were published in Caravan which was followed by a B flurry of writ petitions; (ii) Ordinarily, this Court would not entertain a petition only on the basis of news reports, because they are hear say in the nature. All the petitions are based entirely on news reports. The source of knowledge is the reports which appeared in the print and electronic media; (iii) Despite the submission in (ii) above, having due regard to the fact that the death of a judge in the state judicial service is in issue, the State of Maharashtra is not pressing for dismissal on grounds of maintainability and urges its submissions on merits to satisfy the conscience of the court; (iv) Two colleagues of Judge Loya from the district judiciary – Judge Kulkarni and Judge Modak were with him from 29 November 2014 until he died on 1 December 2014. They have furnished a clear and cogent account of the events which took place. Their statements are corroborated by the statements of two other judicial officers – Judge Rathi and Judge Barde; (v) An inquiry can be ordered by this court only if it finds sufficient justification to reject the eye-witness account of the judges of the district judiciary who accompanied Judge Loya from the night of 29 November 2014 (when they left Mumbai for Nagpur) until the afternoon of 1 December 2014 (when the ambulance left for Gategaon). The statements of the judges are an abundant reflection of the truth of the matter. After G Judge Loya died on 1 December 2014, four judges of the High Court, including the Chief Justice, who were informed of the death reached Meditrina hospital shortly after the death; (vi) The issue before the court is whether Judge Loya died a natural death or whether there are circumstances which H

54 SUPREME COURT REPORTS [2018] 9 S.C.R.

A indicate that the death was unnatural. The court is not called upon to evaluate the nature of the care or treatment that was received by him at Dande and Meditrina hospitals; (vii) The four statements by Judge Kulkarni, Judge Modak, Judge Barde and Judge Rathi are signed by them. The statement of B Judge Modak states that Judge Loya was in the same room at Ravi Bhavan. The statements of the four judges also cover an important stretch of time from 0400 hours to 0630 hours on 1 December 2014. There is no reason to cast doubt or suspicion on the statements of the four judges of the district judiciary. They have neither an axe to grind nor any motive not to speak the truth. Minor contradictions should not result in the statements being discarded since they are not of consequence. Minor contradictions are in fact natural when events which took place three years earlier are recalled. Moreover, this court is not hearing a regular criminal appeal after a full-fledged trial; (viii) The ECG was taken at Dande hospital and was evidently carried to Meditrina hospital. The progress notes of the doctor at Meditrina hospital advert to the nature of the ECG and it also forms a part of the record. Significantly Judge Barde E has deposed to the fact that an ECG was done though Judge Rathi has stated that at Dande hospital the nodes of the ECG machine were not in order; (ix) After the death had occurred, an inquest was conducted under Section 174 Cr PC in the mortuary of the Government F Medical College at Nagpur. Thereafter a post-mortem was conducted which indicated that the death was due to coronary artery insufficiency. The post-mortem was necessitated because Judge Loya was brought dead to Meditrina hospital. A request was made to the forensic science laboratory on 1 December 2014 for analysis of the viscera. The FSL report and the report dated 5 February 2015 specifically notes that no trace of poison was found; (x) No credence should be attached to the fact that the name of Judge Loya was recorded as Brijmohan instead of Brijgopal, having due regard to the emergency in which he was initially taken to Dande hospital and later to Meditrina. The error

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[DR. D. Y. CHANDRACHUD, J.]

was corrected on 10 December 2014; A (xi) The death report was initially recorded at Sitabardi police station Nagpur. The death report at police station Sadar was recorded later since Ravi Bhavan falls within the jurisdiction of Sadar police station. As the record indicates, the death report at police station Sadar was on the basis of the earlier report lodged at Sitabardi police station; (xii) Finding that there was no warrant for suspicion in regard to the death, a request for closure was submitted to the Executive Magistrate in February 2016; (xiii)There was nothing untoward in the conduct of a discreet inquiry by the Commissioner, SID. The inquiry was initiated after news reports appeared in Caravan on 20 and 21 November 2017. While conducting such inquiries, a parallel is drawn by the State on the basis of the Anticorruption Manual which envisages the procedure to be followed in a discreet inquiry. Even independent of the manual, the state government was justified in conducting an inquiry having due regard to the fact that aspersions were cast by a news periodical in regard to the circumstances leading to the death of a judge of the district judiciary; E (xiv) On the initiation of the discreet inquiry, an authorisation was obtained from the Chief Justice for recording the ‘say’ of the four judicial officers. Letters were addressed to them. Judge Kulkarni and Judge Barde were posted at Mumbai, Judge Modak was posted at Pune and Judge Rathi was at Baramati. The DGP sent a hard copy of the order of authorisation by the Chief Justice to Pune and Baramati. There is no reason to entertain any suspicion because the judges submitted their statements immediately upon receipt of the authorisation of the Chief Justice of the Bombay High Court; (xv) Significantly while the petitioners and intervenors have doubted whether the three judges stayed at Ravi Bhavan, the report in Caravan expressly acknowledges that it was at Ravi Bhavan that they had stayed during their visit to Nagpur; (xvi)Immediately on the publication of the Caravan report on 11 H

56 SUPREME COURT REPORTS [2018] 9 S.C.R.

A February 2018 containing a reference to the opinion purportedly given by Dr Sharma, two letters dated 14 February 2018 were addressed to AIIMS with reference to the opinion. AIIMS in its reply has specifically clarified that it is not a practice to give such information. Dr Sharma has clarified that he was grossly misquoted by Caravan and that the conclusions in the article are imaginary; (xvii)The police inspector at Nagpur addressed a communication to Dr Harish Pathak, Head of Department of Forensic Medicine and Toxicology at KEM hospital, Mumbai. The report submitted by Dr Pathak specifically mentions that the findings in the post-mortem and histo-pathology reports are indicative of acute coronary insufficiency; (xviii)The manner in which the petitioners have conducted themselves is evident from the innuendos attaching to the reliance by Mr Dave on an order of the Nagpur bench of the D High Court, quashing a criminal prosecution against several petitioners of whom the fourth petitioner was Mr Devendra Fadnavis, Chief Minister of Maharashtra. The manner in which reliance has been placed on that order before this court would indicate that these proceedings are not instituted bona fide but constitute a clear attempt to subvert judicial independence and to cast aspersions on the independence of the judiciary; and (xix)The timing of the publication of the newspaper article was politically motivated, since it coincided with the elections to the Gujarat Assembly. It is urged that the purpose is to target a political opponent by engaging the process of the Court.

24Copy pinpoint24. The rival submissions would now be analysed. D Analysis

25Copy pinpoint25. Mr Dave submitted that notice be issued formally in the writ proceedings and the State should be called upon to file affidavits in response to the petitions. Counsel submitted that once affidavits are filed it would be open to the petitioners to initiate steps for perjury, if a false statement has been made before the court.

26Copy pinpoint26. While dealing with this submission, it is necessary to record H

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that in pursuance of the procedural directions which were issued during the course of the first hearing, the state has filed a compilation of documents on the record. All contesting parties have appeared and have been heard. The documentary material which has been filed by the state has been tendered to the court and forms part of the record of judicial proceedings. No affidavit by a police officer or authority can improve upon the factual situation emerging from the documentary material which is placed before the Court. Once this is the position, the state and its officers must necessarily take full responsibility for all that has been placed on the record and face any legal consequence which arises from the documentary material which is produced in the proceedings before the court. The issue before the court is whether an inquiry into the death of Judge Loya is warranted on the directions of this court. This would depend in substance on the nature of the inquiry which has been conducted. The latter is a matter of record. Affidavits cannot improve upon the official record of the state. Besides, as we have noted earlier, counsel for the State of Maharashtra informed the court that the state government would be willing to produce any further documents which form a part of the official record as are required for inspection by learned counsel appearing on behalf of the petitioners and intervenors. Moreover, Mr Rohatgi urged that the state would willingly accept any directions of the Court, in addition to the material which was filed. Under the order of this court learned counsel were permitted to provide a list of such documents to counsel for the state, if any additional documents were required to be produced. We have also scrutinised with the assistance of counsel, the material which has been produced by counsel for the petitioners and intervenors besides the material produced by the state without regard to technicalities of procedure. This batch of cases has been heard fully. Hearings have been convened over ten dates of judicial sitting. We find no justification at this stage to call upon the state to file affidavits since a full and complete opportunity has been granted to all the parties and their counsel to address submissions on every aspect of the case that they desire to address. The entire record is before the court. G Section 174 Cr PC

27Copy pinpoint27. Section 174 of the Code of Criminal Procedure 1973 provides thus: “174. Police to enquire and report on suicide, etc. H

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A (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub- divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted. (2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub- divisional Magistrate. E (3) 1 When- (i) the case involves suicide by a woman within seven years of her marriage; or (ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable F suspicion that some other person committed an offence in relation to such woman; or (iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or G (iv) there is any doubt regarding the cause of death; or (v) the police officer for any other reason considers it expedient so to do, he shall. subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified H medical man appointed in this behalf by the State Government, if

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the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless. (4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub- divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate.”

28Copy pinpoint28. Section 174 deals with a situation where information is received by an officer in-charge of a police station of a person having committed suicide, or having been killed (i) by another; or (ii) by an animal; or (iii) by machinery or (iv) by an accident or of having died under circumstances raising a reasonable suspicion that some other person has committed an offence. In any of these situations, the police officer is required to furnish intimation immediately to the nearest Executive Magistrate who is empowered to hold inquests. He is required to proceed to the place where the body is situated and in the presence of two witnesses to make an investigation and draw up a report of the apparent cause of death. D The report would describe the wounds including marks of injury which are found on the body and in what manner or by what weapon or instrument if any they appear to have been inflicted.

29Copy pinpoint29. The purpose of holding an inquest is limited. The inquest report does not constitute substantive evidence. Hence matters relating to how the deceased was assaulted or who assaulted him and under what circumstances are beyond the scope of the report. The report of inquest is primarily intended to ascertain the nature of the injuries and the apparent cause of death. On the other hand, it is the doctor who conducts a post- mortem examination who examines the body from a medico-legal perspective. Hence it is the post-mortem report that is expected to contain the details of the injuries through a scientific examination16.

30Copy pinpoint30. The scope of an inquiry under Section 174 of the Cr PC has been considered in several decisions of this court. In Pedda Narayana G 16 Madhu v State of Karnataka (2014) 12 SCC 419; Radha Mohan Singh @ Lal Saheb v State of UP (2006) 2 SCC 450;Mahendra Rai v Mithlesh Rai (1997) 10 SCC 605 Amar Singh v Balwinder Singh (2003) 2 SCC 518; Suresh Rai v State of Bihar AIR 2000 SC 2207 and Shukla Khader v Nausher Gama (1975) 4 SCC 122 17 (1975) 4 SCC 153 H

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A v State of Andhra Pradesh17, this court explained that the limited scope of such an inquiry is to ascertain whether a person has died in suspicious circumstances or an unnatural death and, if this was the case, the apparent cause of death. The court observed: “The proceedings under Section 174 have a very limited scope. B The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings C under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report.” This principle was reiterated in Amar Singh v Balwinder Singh (supra) where the court observed thus: D “12...The requirement of the section is that the police officer shall record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted and this has to be done in the presence of two or more respectable inhabitants of the neighbourhood. The section does not contemplate that the manner E in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. (Id at page 641)” F The view in Pedda Narayana (supra) has been approved by a three judge Bench in Khujji @ Surendra Tiwari v State of Madhya Pradesh18.Hence in Radha Mohan Singh Alias Lal Saheb v State of U.P.19, a Bench of three learned judges formulated the principle in the following terms: G “Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or 18 (1991) 3 SCC 627 19 (2006) 2 SCC 450 H

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has died under circumstances raising a reasonable suspicion that A some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eyewitnesses or the gist of their statements, nor is it required to be signed by any eyewitness.” B A Bench of two learned judges of this Court in Madhu Alias Madhuranatha v State of Karnataka20 has observed that an inquest report is not substantive evidence. In Manoj Kumar Sharma v State of Chhattisgarh21, a Bench of two learned judges held that the purpose of an ‘inquest’ in cases of accidental C or suspicious deaths under Sections 174 and 175 is distinct from the ‘investigation’ under Section 157 of the Code under which if an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered to investigate, he shall proceed in person to the spot to investigate the facts and circumstances of the case. D Reiterating this principle, a two judge Bench in Bimla Devi v Rajesh Singh22 explained the scope of the provisions of Section 174 in the following observations: “The scope of the section is investigation by the police in cases of unnatural or suspicious death. However, the scope is very limited and aimed at ascertaining the first apparent signs of the death. Apart from this, the police officer has to investigate the place wherefrom the dead body is recovered, describe wounds, fractures, bruises and other marks of injury as may be found on the body, stating in what manner or by what weapon or instrument, such injuries appear to have been inflicted. From the above, it thus becomes clear, that the section aims at preserving the first look at the recovered body and it need not contain every detail. Mere overwriting in the name of the informant would not affect the proceedings.” The same position has been laid down in a more recent decision of a two judge Bench in Yogesh Singh v Mahabeer Singh23:

20 (2014) 12 SCC 419 21 (2016) 9 SCC 1 22 (2016) 15 SCC 448 23 (2017) 11 SCC 195 H

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A “41. Further, the evidentiary value of the inquest report prepared under Section 174 CrPC has also been long settled through a series of judicial pronouncements of this Court. It is well established that inquest report is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain B the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by animals or machinery, etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted. (See Pedda Narayana v. State of A.P. [Pedda Narayana v. State of A.P., C (1975) 4 SCC 153 : 1975 SCC (Cri) 427] , Khujji v. State of M.P. [Khujji v. State of M.P., (1991) 3 SCC 627 : 1991 SCC (Cri) 916] , Kuldip Singh v. State of Punjab [Kuldip Singh v. State of Punjab, 1992 Supp (3) SCC 1 : 1992 SCC (Cri) 946] , George v. State of Kerala [George v. State of Kerala, (1998) 4 SCC 605 : 1998 SCC (Cri) 1232] , Suresh Rai v. State D of Bihar [Suresh Rai v. State of Bihar, (2000) 4 SCC 84 : 2000 SCC (Cri) 764] , Amar Singh v. Balwinder Singh [Amar Singh v. Balwinder Singh, (2003) 2 SCC 518 : 2003 SCC (Cri) 641], Radha Mohan Singh v. State of U.P. [Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450 : (2006) 1 SCC (Cri) E 661] and Sambhu Das v. State of Assam [Sambhu Das v. State of Assam, (2010) 10 SCC 374 : (2010) 3 SCC (Cri) 1301] .)”

31Copy pinpoint31. Sub-section(3) of Section 174 requires the police officer to forward the body for being examined to the nearest civil surgeon, or as the case may be, to a duly qualified medical person appointed by the state government in this behalf, in the circumstances set out there. Among the circumstances, clause (iv) deals with a situation where there is any doubt regarding the cause of death while clause (v) deals with a case where the police officer considers it expedient to do so. Sub-section (4) of Section 174 specifies that the District Magistrate, Sub-Divisional Magistrate and any other Executive Magistrate especially empowered may hold inquests. Under Section 175, the police officer proceeding under Section 174 is empowered to summon for the purposes of the investigation any person who appears to be acquainted with the facts of the case. Under Section 176, where the case is of the nature specified in clauses (i) or (ii) of sub-section (3) of Section 174, the nearest Magistrate H empowered to hold an inquest shall hold an inquiry into the cause of

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death instead of or in addition to the investigation held by the police officer. In any other case mentioned in sub-section (1) of Section 174 the Magistrate may hold an inquiry. Sections 175 and 176 provide as follows: “175. Power to summon persons. (1) A police officer proceeding under section 174, may, by order in writing, summon two or more persons as aforesaid for the purpose of the said investigation, and any other person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend and to answer truly all questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (2) If the facts do not disclose a cognizable offence to which section 170 applies, such persons shall not be required by the police officer to attend a Magistrate’ s Court.

176. Inquiry by Magistrate into cause of death. D (1) 2 when the case is of the nature referred to in clause (i) or clause (ii) of sub- section (3) of section 174] the nearest Magistrate- empowered to hold inquests shall, and in any other case mentioned in sub- section (1) of section 174, any Magistrate so empowered may hold an inquiry into the cause of death either E instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. (1A) Where – F a. any person dies or disappears, or b. rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorized by the Magistrate or the Court, under this Code in addition to the inquiry or investigation held by the G police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed. (2) The Magistrate holding such an inquiry shall record the H

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A evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case. (3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate B may cause the body to be disinterred and examined. (4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry. C (5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under sub-section (1A) shall, within twenty-four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon D or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing. Explanation.- In this section, expression” relative” means parents, children, brothers, sisters and spouse.” E Documentary material

32Copy pinpoint32. In the context of the above statutory provisions, it is necessary to examine the material on record. We will proceed to initially analyse the documentary material which has been placed before the court by the State of Maharashtra. Since the statements of the judicial officers F which were recorded during the course of the discreet inquiry have been the subject of a considerable amount of argument, we will analyse them in a subsequent part of the judgment.

33Copy pinpoint33. Judge Loya was brought to Meditrina hospital at Nagpur at 6.15 am on 1 December 2014. Dr NB Gawande of Meditrina addressed G a letter to the PSI, Sitabardi police station on the following subject: “MLC information on hospital in-patient death/brought dead”. The communication states that the deceased was “brought with no evidence of life to our hospital” with history of retrosternal chest pain. The patient was reported to have come to Nagpur to attenda function. H

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The person who admitted the patient is recorded as Shrikant D Kulkarni. A His relationship with the patient is described as “friend”. The probable cause of death is stated to be unknown. The name of the consultant is endorsed as Dr Pankaj Harkut.

34Copy pinpoint34. The Progress notes of the doctor at Meditrina hospital contain a death summary. It records that according to the history given by the accompanying persons, the patient had suffered retrosternal chest pain during the course of the immediately previous night. It states that the patient was taken to Dande hospital where an ECG was done. The ECG (it is recorded) reflected a “tall ‘T’” in the anterior lead and that the patient collapsed while being shifted. The death summary further states that resuscitation was started immediately after reaching the hospital and emergency medication was provided. The steps which were taken to revive the patient are recorded and it has been stated that in spite of resuscitative efforts, the patient could not be revived and was declared dead at 6.15 am on 1 December 2014. The death summary records that a post-mortem was advised for ascertaining the cause of death. A death report was accordingly issued on 1 December 2014 by the duty medical officer at Meditrina. The post-mortem became necessary because, Judge Loya was ‘brought dead’.

35Copy pinpoint35. At 8.30 am on 1 December 2014, the police station at Sitabardi (within whose jurisdiction Meditrina hospital is located) recorded the statement of Dr Prashant B Rathi. The statement is to the effect that the deceased was related to his uncle. The deceased had travelled to Nagpur for attending a marriage and was residing at Ravi Bhavan, Civil Lines. When he complained at 0400 hours of chest pain, he was admitted to Meditrina hospital where he was declared as “brought dead” at 0600 hours. On the basis of the statement of Dr Prashant Rathi, the death report (margkhabri) was drawn up under Section 174 of Cr PC bearing AD 00/14. The statement of Dr Rathi is reproduced in the death report and titled as “nakal bayan” (this is because the statement is reproduced). The death report contains an endorsement of PSI RK Mundhe, the duty officer from 2100 hours on 30 November 2014 to 0900 hours on 1 G December 2014 of the registration of an accidental death report on the basis of the statement of Dr Rathi and of having sent police constable Pankaj for taking care of the dead body.

36Copy pinpoint36. Government Medical Hospital, Nagpur received the dead body H

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A at 10 am on 1 December 2014 for post-mortem. An inquest panchnama commenced at 10 am and ended at 10.30 am in the presence of two panchas. PSI Mundhe attached to Sitabardi police station conducted the inquest. The inquest panchnama notes the condition of the dead body and does not find any mark of injury or assault. The dead body was then sent to the medical officer for conducting the post-mortem. There is an advance report dated 1 December 2014 of Dr NK Tumram of the Department of Forensic Medicine at Government Medical College recording that the probable cause of death is “coronary artery insufficiency”. The post-mortem report of 1 December 2014 records that there is no evidence of bodily injury. The dura and brain are found to be congested and edemitous. Lungs are also found to be in a congested condition and edemitous. The heart is found to be congested. The post- mortem records that there is evidence of arthrosclerosis in the left coronary and left anterior descending artery with calcification. It records the narrowing of the artery and evidence of hypertrophy of the left ventricle. Evidence is found of plaque in the inner wall of the aorta. The D report indicates that samples of the stomach, liver, kidney and blood were preserved for histo-pathological examination. The probable cause of death is recorded as “coronary artery insufficiency”.

37Copy pinpoint37. Following the post-mortem, the dead body was handed over to Dr Prashant Rathi on 1 December 2014 in token of which a receipt E was obtained by Sitabardi police station.

38Copy pinpoint38. On the basis of the death report which was recorded by Sitabardi police station the police station at Sadar recorded an accidental death report (AD 44/14) under Section 174 CrPC. The death report contains a statement that PSI Warpade, the day duty officer on 1 F December 2014 had received the case diary of AD 00/14 from police constable Pankaj and that he had registered AD 44/14 under Section 174 Cr PC. The registration of the AD at Sadar police station is at 1600 hours on 1 December 2014. Ravi Bhavan falls within the jurisdiction of Sadar police station.

39Copy pinpoint39. On 1 December 2014, the duty officer at Sadar police station addressed a communication to the Deputy Director of the Forensic Laboratory, Dhantoli, Nagpur, and sought a chemical analysis of the samples of the viscera and of a bottle of blood which had been preserved. Analysis of the samples commenced on 5 January 2015 and ended on H

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19 January 2015. On 5 February 2015 the Assistant Chemical Analyser A in the Regional Forensic Science Laboratory submitted his report stating that: “general and specific : chemical testing does not reveal any poison in exhibit nos.(1), (2) and (3).” Exhibits (1), (2) and (3) are respectively samples of the stomach, liver, spleen and kidney and blood.

40Copy pinpoint40. In the records of Meditrina hospital referred to earlier, the name of the deceased was referred to as Brijmohan H Loya. It appears from the post-mortem report that the name of the deceased was initially recorded as Brijmohan Harikishan Loya. The records of Meditrina hospital as well as the post-mortem contain a reference to the address of the deceased being the official quarters at Haji Ali Government Colony, Building no.11, Mumbai. This, it is undisputed, is where Judge Loya resided. There is hence absolutely no doubt about the identity of the body on which post-mortem was performed. On 10 December 2014 the D PSI at Sadar police station addressed a letter to Government Medical Hospital seeking a correction in the name of the deceased as Brijgopal Harikishan Loya. The correction was endorsed on 10 December 2014 on the post-mortem report.

41Copy pinpoint41. In February 2016, the Sadar police station addressed a E communication to the Special Executive Magistrate making a reference to the death summary bearing No.07/16 dated 2 February 2016. The summary records that on 1 December 2014, the police station at Sadar received AD004/14 from the Sitabardi police station. On perusing the case diary, it was noticed that the place of occurrence was within the jurisdiction of Sadar police station. Hence AD 44/14 was recorded under F Section 174 Cr PC. An inquest panchnama was prepared by PSI Mundhe in the presence of two panch witnesses. The post-mortem was conducted at the Medical College Hospital by Dr NK Tumram of the Forensic Medicine Department. After the post-mortem concluded, the body was handed over to Dr Prashant Rathi, a relative of the deceased. During G the course of inquiry, it has been noted from the post-mortem report that the cause of death was coronary artery insufficiency. On discussing the matter with Dr Tumram, it was ascertained that the death was due to a heart attack and there was nothing suspicious about the death. During

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A the course of the inquiry the police station at Gategaon, District Latur was contacted when it was intimated that the relatives of the deceased reside in Mumbai. Dr Prashant Rathi had intimated, that the deceased had visited Nagpur to attend a marriage; on the date of the incident he developed pain in the chest at 0400 hours and was admitted to Meditrina hospital where he was declared dead. The summary records that Judge B Loya died due to a heart attack. No complaint has been lodged by his relatives at the local police station or at PS Sadar of any suspicion in regard to the cause of death and the medical officer has recorded the cause of death as a heart attack in the PM report and there was no evidence of assault. The summary was accordingly submitted to the C Special Executive Magistrate, Sadar division, Nagpur. Statements of four judicial officers

42Copy pinpoint42. Now it is in this background, that it would be necessary to advert to the statements of the judicial officers which were recorded during the course of the discreet inquiry in November 2017. A discreet inquiry was ordered on 23 November 2017 by the Home department of the state government following the reports which were published in Caravan on 20 and 21 November 2017. Mr Rohtagi has apprised the court that in ordering the discreet inquiry, the state took recourse to the provisions of its Vigilance Manual. The Manual of Instructions provides for the procedure which is to be followed in conducting discreet inquiries. In the present case, following the newsreports published in Caravan, the death being of a judge from the state judicial service, a discreet inquiry was ordered particularly in the context of the innuendos contained in the news reports. Quite apart from the Manual, the state government is not prohibited in law from holding such an enquiry in the exercise of its executive power.

43Copy pinpoint43. The Commissioner of the State Intelligence Department sought the permission of the Chief Justice of the Bombay High Court “to record the say” of Judge Shrikant Kulkarni (Member Secretary, Maharasthra State Legal Service Authority), Judge Modak (Principal District Judge, G Pune), Judge Barde (District Judge, City Civil Court, Mumbai) and Judge RR Rathi (District Judge, Baramati). By a communication of 23 November 2017, the Registrar General stated that the Chief Justice had granted permission to do so. Following the receipt of permission, the Commissioner, SID wrote to the four judicial officers. They tendered - H

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signed statements. A

44Copy pinpoint44. The statement of Judge Kulkarni dated 24 November 2017 is extracted below: “Reference: Your letter No-COI/PA/Loya/DE/2017-165. Sir, B With reference to your letter, I hereby submit brief sequence/say about the unfortunate death of Shri BH Loya at Nagpur. In the month of November – December 2014, I was working as Registrar(Judicial -I), Appellate Side, High Court, Bombay. Mrs Swapna Joshi was the Member Secretary, Maharashtra State C Legal Services Authority at that time and she was my Principal Judge while working in the City Civil Court, Mumbai. She had invited me, my colleague Shri SM Modak and Shri BH Loya who were working in the City Civil Court, Mumbai for the wedding of her son at Nagpur. D Accordingly, I alongwith Shri SM Modak and Shri BH Loya left Mumbai by train in night of 29th November, 2014 and reached Nagpur in the morning of 30th November 2014. We went to Ravi Bhavan Government Guest House where V.I.P. Suit was booked. On the night of 30th November, 2014 we attended reception E arranged by Mrs Swapna Joshi on account of wedding of her son and returned to Ravi Bhavan Government Guest House at about 11.30 p.m. to 12.00 midnight. Early morning of 1st December 2014 Shri Loya started complaining of chest pain. I called my another brother Judge from Nagpur F Shri Barde by calling on his cell phone and asked him to rush immediately to Ravi Bhavan Government Guest House with his car due to bad health of Shri Loya. Accordingly, Shri Barde with another colleague Shri Rathi rushed to Ravi Bhavan Government Guest House. It was about 4.00 to 4.15 am. Shri Waiker, Judge was also informed about Shri Loya’s bad health. G

We took Shri Loya to the nearby Dande Hospital by using car of Shri Barde where emergency treatment was given to Shri Loya. Shri Waiker, Judge also joined there by his car. However chest

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A pains continued. As per Doctor’s advice Shri Loya was required to be shifted to Cardiac Hospital. Accordingly, Shri Loya was immediately taken to Meditrina Hospital, Nagpur. We accompanied with him in the car. Shri Rathi who was working as Deputy Registrar called his relative Doctor to rush at Meditrina Hospital. We rushed to Meditrina Hospital, however on the way Shri Loya B collapsed. We put him on the stretcher and took to the I.C.U where Doctor started immediate treatment. After giving treatment no response from Shri Loya was seen. Unfortunately, Shri Loya succumbed to death due to massive heart attack on early morning of 1st December 2014. C We communicated this unfortunate incident to the Hon’ble Shri Justice PR Bora as well as Hon’ble Shri Justice BR Gavai. We also informed the said unfortunate incident to Shri Sham Joshi, Principal Secretary to the Hon’ble The Chief Justice whose sitting was at Nagpur that time. Hon’ble Shri B R Gavai, Hon’ble Shri D Justice SB Shukre and Hon’ble Shri Justice PR Bora immediately rushed to the Meditrina Hospital within half an hour. Thereafter Hon’ble Shri Mohit Shah, The Chief Justice also arrived there. Thereafter, the dead body of Shri Loya was taken to the Government Medical College and Hospital for post-mortem examination. E After post-mortem examination dead body was sent to native place of Shri Loya in one ambulance. Two Magistrates from Nagpur were also sent in another car to accompany dead body.” The statement of Judge SM Modak, Principal District Judge, Pune dated F 24 November 2017 reads as follows: “Sub : Discreet Verification in the death of Judge Shri Loya. Ref : Your letter OW No. COI/PA/LOYA/DE/2017-165 Dated 23/11/2017. Respected Sir, G I received your above mentioned letter in the morning through the hands of your representative. It accompanies permission letter issued by Hon’ble Registrar General dated 23/11/2017. It is not accompanied by any complaint/application/any document. You have H

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requested me to give my say in the captioned matter. There is gap A of almost three years after the death of our brother Judge Loya. As per my memory I am giving sequence of events as follows : a. I accompanied Judge Shri Shrikant Kulkarni and Judge Shri Loya on 29/11/2014 for attending the marriage of son of Ladyship Smt Joshi (then Secretary MHALSA). B b. We left by train at the night. Ladyship Smt Joshi, her family members and few other judges were also travelled in the same train but in different compartments. c. We reached Nagpur in the morning of 30/11/2014. Journey was comfortable. It was through AC coach. C

d. From station we went to Ravi Bhavan e. After bath, myself accompanied Judge Shri Kulkarni to visit the quarters of Lordship Shri Shukre, Lordship Shri Borha. Judge Shri Kulkarni intended to give invitation of his daughter’s marriage to D them. Even Judge Shri Loya accompanied us. f. Even we have visited the house of Judge Shri Barde quarter at Ravi Nagar. g. After that and after some marketing, we returned Ravi Bhavan. We have to attend reception in the evening. E h. We attended the reception. There number of judges and even Few lordship have attended the function. i. After dinner, we returned Ravi Bhavan almost at about 11.30 pm to 12 midnight. F j. During our way back, we stopped at one square. I remember Judge Mahajan was also with us but in different car. He offered us famous pan. He left to his house as he had to catch night train for Mumbai and we returned to Ravi Bhavan. k. We slept in one room. At about early morning probable at 4 am G Judge Loya woke up. He was not feeling comfort. Myself and Judge Kulkarni called local judges probably Judge Barde and Judge Rathi. l. I do not exactly remember both of them or single. H

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A m. In a car we took Judge Loya to Dande Hospital. After initial checkup, doctor advised him to shift him to another hospital n. We shifted Judge Loya to another hospital. I do not remember the name. We shifted him in a car. I also remember another local Judge Shri Waiker had also come in his car. B o. At the hospital doctors have declared him dead. p. We have informed this fact to our judges at Hajiali colony. q. We all were in shock. I do not exactly remember who informed this fact to family members of Loya. C r. Few Lordship have also attended the hospital. Further events took place as per their directions. s. Dead body was taken to Government Hospital for post mortem. t. Then PDJ Shri Sonavane (now Lordship) had also come to hospital and also for post mortem. D u. Then PDJ Shri Sonavane deputed two local judges along with dead body. v. We all were in deep shock. Myself and Judge Kulkarni met the relatives of Judge Loya at Hajiali colony after few days. E w. During that period I was posted as P.D.J. at Alibag, Raigad. I have narrated the events as per my memory. You have instructed yesterday on phone to give events today. I am handing over this letter through hands of your representatives Shri Patil.”

F The statement of Judge VC Barde, dated 24 November, 2017 reads as follows: “SUB: Your letter dt. 23.11.2017 for my Say, regarding occurrence dt. 1.11.2014 at Nagpur of sad demise of District Judge Shri BH Loya Sir, G Dear Sir, With reference to the subject mentioned as above, I state that on the above date, at about 4 A.M. I received a call on my mobile No. 9423406827 from Shri S.D. Kulkarni Sir, Registrar of Hon’ble Bombay High Court that I with my Car and Shri R.R. Rathi, Senior H

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Civil Judge, should come to Ravi Bhavan Govt. Guest House, A where he, Shri Modak Sir District Judge, and late Shri Loya Sir were staying having come from Mumbai. He said that Shri Loya Sir was having chest pains. Accordingly, I called Shri Rathi and proceeded to Ravi Bhavan. Immediately, we the above 5 persons in the Car proceeded towards B Dande Hospital. In the meanwhile, Shri S.D. Kulkarni Sir also called Shri Waiker Sir, now retired District Judge. The medical officer on duty there checked up Shri Loya by ECG, Blood Pressure etc. as per their procedure. Judge Shri Rathi has his brother in relation by name Dr Shri Pankaj Harkut, M.D. and D.M., as a Doctor at Meditrina Multispecialty Hospital, whom he could contract in the meanwhile, who said that we should come to Meditrina Hospital, where he would also come from his residence. Thereafter, we proceeded to Meditrina Hospital in 2 Cars. However, Shri Loya who himself sat in the Car, after some distance started Snoring-like in sleep, to whom Shri Kulkarni Sir stated to awake. When I took the Car in the porch of Meditrina Hospital, Shri Loya Sir did not awake and was rushed on a stretcher to the ICU of the said Hospital. He was immediately taken in and the doctors started treatment. We stayed outside ICU. However, after sometime the Doctor came out, and told that when Shri Loya Sir E was taken in ICU, his pulses were not working, and that they were trying out their best to make him revive. While Shri Loya Sir was in ICU, I tried to contact the friends of Shri Loya Sir at Haji Ali, Govt Colony, where he was residing. Shri O.K. Bhutada, Senior Civil Judge, could be contacted, whom F the entire occurrence was told. Shri Modak Sir and Shri Kulkarni Sir also contacted the other friends of Shri Loya Sir at Haji Ali, known to them and told the occurrence to them. Local judges were also called at Hospital. The Hon’ble High Court Judges, and Judges from District Judiciary, and some Court Staff approached to the Hospital, and some were consulting the Doctor. G Judge Shri Bhutada from Mumbai, provided my mobile number to the near relatives of Shri Loya Sir, and by making call to me, told that I should inform the happenings at Hospital to such near

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A relatives, if they contact me. Some relatives contacted me, to whom I told the happenings, and that they may come to Nagpur. After about 6.a.m. the Doctor came out of ICU and declared that Shri Loya Sir is no more. Thereafter, the Judges gathered there saw his body. The police also approached the Hospital. Thereafter, B at or about 10 p.m. the dead body was taken for post-mortem at Govt. Medical College by police. I in my car went there, where the Judges of District Judiciary also gathered. After the post mortem was over, after 11 a.m. the dead body was sent in an ambulance to the native place of Shri Loya. C Shri Loya, being my Senior Colleague and residing in neighbouring building No. 11 of Haji Ali. Govt. Colony and I in building No. 13 in the same colony during my posting for 2011 to 2014, I was well acquainted with him, and performed by moral duty to take him in the hospital with other learned officers to provided all the possible help.” D The statement of Judge RR Rathi dated 23 November 2017 reads as follows: “Upon request of Shri Sanjay Barve, Commissioner SID, Mumbai and as Hon’ble High Court of Bombay granted permission to give say, I am stating the fact know to me regarding Judge Shri Brijgopal Harikishnan Loya. Myself R R Rathi Adhoc District Judge, Baramati on dated 1.12.2014 was working as 5th Civil Judge Shri V C Barde phoned me on mobile and asked for my help by stating that Judge Loya is not feeling well and is at Ravi Bhavan, so we should help him. Hearing the same and in order to help, being local Judge, I was immediately ready. Mr Barde came to my quarter in his car and we then immediately went to Ravi Bhavan. At Ravi Bhavan Judge Shri Modak and Shri Shrikant Kulkarni were also present. At that time Judge Loya was attending natures call. Thereafter he came down and told that he is having heart burn and having ache in his heart and requested for help. Thereafter we all present there went in the car and Mr Barde. At that time some of them also called for help of Judge Waiker. He also followed us. Then we went to the nearest hospital at Ravi H

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Nagar i.e. Dr Dande Hospital that hospital was on 1 st Floor and so we all climbed stairs and were there. One assistant doctor was present there. Mr Loya complained about severe chest pain. His fact was sweating and he was continuously telling about severe chest pain and heart burn. At that time the doctor tried to do his ECG but the nodes of ECG machine were broken. Doctor tried and wasted sometime but machine was not working. I think he gave 2 injections to Mr Loya. I asked the doctor he said it of antacid and painkiller. Mr Loya was again complaining chest pain. I called my brother (cousin) Dr Pankaj Harkut, who is a cardiologist but his phone ringed but he did not picked my phone. After sometime he called me and I told him all these things. He C immediately told me to brought him to Meditrina Hospital at Ramdaspeth Nagpur. It was 5.00 am, approx. that time. Thereafter I sitted in car of Judge Waiker. Mr Loya sitted in the car of Barde and Shri Kulkarni and Modak accompanied the. Thereafter we proceeded to Meditrina Hospital. At Meditrina Hospital when we reached that time Mr Loya was unconscious and was unable to speak. Then he was taken inside hospital for treatment. Thereafter Dr Pankaj Harkut also came there. Mr Loya was treated at that hospital. After sometime we came to know that Mr Loya suffered heart attack. Thereafter we came to know that he died. It was very unfortunate that Mr Loya died and I was very upset to know this. Hence this say.” The submissions analysed

45Copy pinpoint45. A frontal assault has been launched on the statements of the four judicial officers by learned counsel appearing on behalf of the petitioners on the ground that the procedure of obtaining the permission of the Chief Justice was completed within one day and the statements were submitted by the four judges on the next day. Two of the judges (Judge Shrikant Kulkarni and Judge Barde) were based in Mumbai while the other two (Judge Modak and Judge Rathi) were based at Pune and Baramati. G

46Copy pinpoint46. We are unable to subscribe to this line of submissions. The Chief Justice of the Bombay High Court granted permission to the Commissioner of the State Intelligence Department to record the say of the four judicial officers. The matter was of importance.A discreet inquiry H

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A had been ordered by the state government in view of the articles which were published in Caravan regarding the death of a judicial officer. Three of the statements specifically refer to the letter to the Commissioner while the fourth refers to the request which has been made by the Commissioner and the permission which has been granted by the High Court. There was no reason for the four judicial officers to procrastinate or delay the submission of their statements. There is no basis whatsoever to make any imputation against the four officers of the state judiciary. They were present with Judge Loya at Nagpur to attend a wedding in the family of a colleague.Each of them responded, as judges of the district judiciary, to the permission which was granted by the Chief Justice of the High Court to the Commissioner, SID to record their say. The judges have spoken about the facts of the case as they could recall, with details. We have extracted each of the four statements fully, as they stand. Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge D Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati E is absolutely no ground to cast doubt.The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct F themselves, in answering to a call of duty.

47Copy pinpoint47. One of the submissions which has been urged by Mr Dave to cast doubt on the statements is that an article was published in the Indian Express in which the statements of two judges of the High Court (Justice Bhushan Gavai and Justice SB Shukre) were published. Mr Dave G submitted that the statements of the judicial officers cannot be regarded as independent, in view of the fact that two judges of the High Court had taken the same view as elicited in the Indian Express article, that the death of Judge Loya was due to natural causes. Mr Dave submitted that judicial officers in the district judiciary could not be expected to take a H

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plea at variance with what was stated by the two judges of the High A Court. He urged that disciplinary action should be initiated against the two High Court judges. This submission is preposterous. It constitutesan undisguised attempt to malign four senior judicial officers and the judges of the High Court. What the submission glosses over is that the article in the Indian Express was published on 27 November 2017 and that was when the statements attributed to Justice Gavai and Justice Shukre were published. The statements of the four judicial officers are dated on 23 and 24 November 2017 and were in fact received by the Commissioner of the SID on 24 November 2017 much before the Indian Express article was published. We are mentioning this aspect because the line of submissions in this case indicates an unfortunate attempt to use every possible ploy to cast aspersions on members of the district and higher judiciary. That senior counsel chose with all seriousness to make those submissions without a sense of responsibility, and without verifying the basic facts reveals a disturbing state of affairs. We must express our disapproval in no uncertain terms. D

48Copy pinpoint48. Learned counsel appearing on behalf of the petitioners as well as the intervenors have sought to question the course of action which was followed by the judicial officers after Judge Loya complained of chest pain in the early hours of 1 December 2014. Why, they have queried, was he taken to Dande hospital initially and not to a specialised cardiac care facility when it was available within a radius of 5 kilometres of Ravi Bhavan. This line of argument is without merit. Judge Loya, as the statements of Judge Kulkarni and Judge S M Modak indicate, complained of chest pain at about 0400 hours on 1 December 2014. His colleagues who were with him took a decision in good faith to take him to Dande hospital which is in close proximity to Ravi bhavan. The issue in the present case is whether Judge Loya died a natural or unnatural death. To attribute motives to his colleagues who were with him and took immediate steps to shift him to a hospital nearby is absurd, if not motivated. In hindsight, it is easy to criticise actions which are taken by human beings when faced with an emergency. It is easy for an observer sitting in an arm-chair at a distant point in time to assert that wisdom lay in an alternate course of action. That can never be the test for judging human behaviour. The conduct of the colleagues of Judge Loya in attending to him is not in question. They did their best under the circumstances, acting entirely in good faith. At Dande hospital, the medical H

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A advise was that the condition of Judge Loya required him to be shifted to a specialised cardiac hospital. Judge Rathi who was attached to the Nagpur Bench of the High Court at the material time was with Judge Kulkarni and Judge Modak when he was shifted to the hospital, as was Judge Waikar. Dr Pankaj Harkut who was a relative of Judge Rathi was a cardiac consultant attached to the Meditrina hospital. Judge Rathi B contacted him on phone and it was at his suggestion that the judges took a decision to shift Judge Loya to Meditrina. To find fault with the judges for this course of action is unacceptable. But there is another and more serious aspect of the line of submissions which has been urged. Though as we have noted earlier, the proceedings have been purportedly instituted C to protect the independence of the judiciary, this is one more instance where behaviour in court belies the ostensible position of the petitioners, intervenors and their counsel. It is as if the judicial officers are in the dock.We have no hesitation in rejecting that attempt. Mr Rohtagi submitted before the court that this line of argument of the petitioners and intervenors would postulate that the judicial officers are co- D conspirators. In fact, it was so argued by counsel assisting Mr Giri. This is neither the case in the pleadings of the petitioners nor is there any material on the record which can even remotely suggest such an inference. We must emphatically reject such attempts on the part of the petitioners and the intervenors to malign judicial officers of the district judiciary. They acted in good faith to ensure medical treatment to their colleague. Their conduct cannot be questioned.

49Copy pinpoint49. Similarly, a considerable degree of emphasis has been placed on the statement of Judge Rathi that the nodes of the ECG machine at Dande hospital were not working. Based on this, it has been seriously urged that in fact no ECG was done at Dande hospital. Judge Shrikant Kulkarni in his statement dated 24 November 2017 has stated that “emergency treatment” was given to Judge Loya at Dande hospital. Judge SM Modak states that after an initial check-up, the doctors at Dande hospital advised shifting the patient to another hospital. Judge Vijay Barde who was present at Dande hospital specifically stated that the medical officer on duty there examined (“checked-up”) Judge Loya “by ECG, blood pressure etc. as per their procedure”. Judge Rathi has stated that at Dande hospital, time was wasted because the nodes of the ECG machine were broken and the machine was not working. This statement of Judge Rathi must, however, be weighed with the doctor’s H

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progress notes at Meditrina hospital. The death summary (extracted earlier) specifically adverts to the fact that the patient was taken to Dande hospital earlier where an ECG was done. Dr Dande has made the same statement. The progress notes also note a “tall ‘T’” in the anterior lead which indicates that the ECG was seen by the doctors attending to Judge Loya at Meditrina hospital. These progress notes are contemporaneous, since they also form part of the communication addressed by Dr NB Gawande at Meditrina to the PSI at Sitabardi on the same day after the judge had been brought dead to the hospital. As a matter of fact, it is this very ECG which forms the subject matter of the submissions which have been urged by one of the intervenors, for whom Mr Prashant Bhushan appears. Having regard to the fact that the C ECG has been specifically mentioned in the progress notes of the doctor at Meditrina hospital, we find no reasonable basis to infer that no ECG was done at Dande hospital.

50Copy pinpoint50. The statements of the four judges are called into question by Mr Dave, counsel for the petitioners, pointing out certain alleged inconsistencies. It has been urged that the Caravan article states that no car was available at 4 am on 1 December 2014 at Ravi Bhavan and hence Judge Loya was transported by an auto-rickshaw to Dande hospital. Mr Dave criticised the conduct of the judicial officers and submitted that it is inconceivable that at a government guest house, a car and driver would not have been available even in the early hours of the morning. The submission lacks merit. Judge Kulkarni has stated that Judge Loya was taken in Judge Barde’s car to Dande hospital. Judge Modak also notes that Judge Loya was shifted by car to Dande hospital and thereafter to Meditrina. This is confirmed in the statements of Judge Barde and Judge Rathi. The allegation that Judge Loya was not provided even a car to travel from Ravi Bhavan to Dande hospital and onwards to Meditrina is a red-herring.

51Copy pinpoint51. Another submission urged by Mr Dave is that the judicial officers did not meet the family of Judge Loya in Mumbai soon after the death. Judge Modak in his statement observes that he and Judge Kulkarni G met the relatives of Judge Loya at his Haji Ali residence after a few days. The suggestion that this is callous, is unfortunate, besides being incorrect. It must be remembered that the family of Judge Loya had proceeded to Gategaon for the funeral. Can the circumstance that Judge Kulkarni and Judge Modak met the family a few days later in Mumbai H

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A have a bearing on their sense of humanity, as Mr Dave urged? The obvious answer is in the negative.

52Copy pinpoint52. Then it was sought to be urged that if Judge Loya had suffered a heart attack around 0400 hours, he would not be wearing a trouser and shirt which the inquest report records. This is another submission which has been urged to cast doubt on the sequence of events as set out in the statements of the four judicial officers. Now a close reading of Judge Rathi’s statement indicates that when he reached Ravi Bhavan and met Judge Modak and Judge Kulkarni, Judge Loya was attending to a call of nature. It is evident from the statement that Judge Loya, when he left Ravi Bhavan was not unconscious and was complaining of chest pain and heart burn. To urge that the depiction of the clothes worn by Judge Loya casts doubt on the sequence of events narrated by the judicial officers is hence untenable.

53Copy pinpoint53. Another submission is that if the four judges had accompanied Judge Loya to hospital, then as colleagues they would not have indicated his name to be Brijmohan instead of Brijgopal. This is but another attempt to cast doubt on the version of the four judicial officers without a substantive basis or foundation. Judge Loya was taken to hospital in an emergency. The normal course of human events would indicate that his four colleagues would be more concerned about getting Judge Loya E attended than filling up an admission form. A mistake did occur in recording his name as Brijmohan instead of Brijgopal. In our view, this cannot be a ground to discredit the detailed factual narration made by the four judicial officers who were with him. Two of them – Judge Kulkarni and Judge Modak – were with Judge Loya from the time that the three officers left Mumbai for the wedding at Nagpur and until Judge Loya died on 1 F December 2014. They have provided a trustworthy account of their schedule since they left Mumbai. All of them travelled together, stayed together, visited local judges at Nagpur, attended the wedding and remained in the company of each other and their friends in the judicial fraternity.

54Copy pinpoint54. Ms Jaising sought to rely on a photograph of a room in Ravi Bhavan and wondered how three judges would have shared a room. Judge Kulkarni has referred to the fact that a VIP suite was booked at Ravi Bhavan. Judge Modak and Judge Barde support the position. The account provided by the judge cannot be discredited on the basis of H

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[DR. D. Y. CHANDRACHUD, J.]

surmises. The occupancy register does show that the room was in the name of Judge Kulkarni. His account is that his two friends and colleagues (Judge Loya and Judge Modak) shared the accommodation with him. It is unfair to disbelieve this account of colleagues in the district judiciary. They were friends, known to each other and had stayed together at Ravi Bhavan during the short trip to Nagpur. No counsel has suggested that they were not closely acquainted to each other.

55Copy pinpoint55. The date of the death in the post-mortem is not mentioned as 7 December 2014, as submitted by Ms Jaising during the course of her submissions. The date of death is clearly mentioned as 1 December 2014. The hospital bill of Rs 4290 at Meditrina is criticised on the ground that it contains, inter alia, neurological charges and charges for diet consultation. It must be noted that the issue in the present case is not whether the bill which was prepared at Meditrina amounts to negligence. The charge for dietary consultation is erroneous. But that cannot be a ground to discredit the fact that Judge Loya was taken to Meditrina. That he was taken to Meditrina is clear from the documentary material on the record and the consistent statements of all the four judicial officers.

56Copy pinpoint56. The handing over of the body to Dr Prashant Rathi cannot be faulted. The family of Judge Loya took a considered decision that they would proceed to his home town, Gategaon, for the funeral ceremonies. The report of the discreet inquiry contains an elaborate reference to the fact that Dr Prashant Rathi who was stationed at Nagpur was contacted by a relative in Aurangabad, requesting his help on 1 December 2014. Dr Rathi has in his statement made a factual explanation about how he was contacted by his relative and asked to assist in the formalities for Judge Loya. The presence of Dr Rathi cannot be doubted, having regard to the contemporaneous documentary material including the accident summary.

57Copy pinpoint57. Similarly, a fair amount of critical comment has been devoted by counsel for the petitioners and intervenors to (i) why the family of Judge Loya was not brought to Nagpur by a flight from Mumbai after the death had occurred; and (ii) why, as alleged, in the Caravan article, the body reached Gategon for the funeral rights unaccompanied. It is necessary to emphasise that both these submissions have no bearing on whether the death of Judge Loya was due to natural causes or otherwise,

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A since they relate to events which took place after his death. But it is necessary in the present judgment to discuss the submissions because ona close analysis they are evidently unfounded. That the family of Judge Loya did not travel to Nagpur after they received intimation of his death, is a fact. If the family decided that the funeral should be held at the place to which he belonged namely, Gategon near Latur, this was a B decision personal to the family. Judge Loya had died.If a considered decision was taken by the members of his family to proceed to Gategon instead of travelling first to Nagpur and then traversing a distance of nearly 450 kilometres by road to the place where the funeral was to be held, such a decision has to be respected. Moreover, the allegation that the body was sent unaccompanied to Gategaon is contrary to what has emerged on the record. Judge Kulkarni in the course of his statement made a reference to the fact that while the body was sent by an ambulance to the place where Judge Loya originally belonged, two judicial officers from Nagpur were also sent in another car to accompany the body. Judge SM Modak in his statement dated 24 November 2017 specifically notes that Shri Sonawane, the Principal District Judge then at Nagpur, deputed two local judges to accompany the dead body. Judge VC Barde has also stated that after the conclusion of the post-mortem at about 11 am, the dead body was sent in an ambulance to the native place of Judge Loya and two judges; Judge Rahangdale and Judge Chopda E accompanied the body. The report of the discreet inquiry by the Commissioner, SID contains the following observation: “4.4 Mr Loya’s body was sent to village Gategaon in Latur in an ambulance provided by Mr Pawankumar Bhagat, Ambulance- Incharge of Meditrina Hospital. Two magistrates [Mr Yogesh F Rahangdale & Mr Swayam Chopda) were sent by the then Principal District Judge, Nagpur, Mr Sonawane along with the mortal remains of Mr Loya to Gategaon, Latur. The question sought to be replied vide CARAVAN report as “why was his body not accompanied by anyone?... is a clear attempt to mislead the readers as the facts are otherwise.” G

58Copy pinpoint58. There is no reason for this Court to doubt the statements of Judge Kulkarni, and Judge SM Modak. Both of them and Judge Loya stayed at Ravi Bhavan guest house, where a VIP suite was booked. All the three judicial officers were invited for a wedding in the family of a

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colleague who in December 2014 was the Member Secretary of A Maharashtra State Legal Services Authority. Judge Kulkarni, Judge Modak and Judge Loya travelled together by the same train from Mumbai to Nagpur on 29 November 2014 and arrived in Nagpur on the morning of 30 November 2014. They proceeded to Ravi Bhavan where a suite was reserved. During the course of the day, the three judicial officers visited the residences of two judges of the High Court at Nagpur, Justice SB Shukre and Justice PR Bora. They visited the home of Shri Barde and were together all along. They went to the market, returned to Ravi Bhavan and attended the wedding reception in the evening. After dinner the three judges returned to Ravi Bhavan a little before midnight. Judge Modak is also clear in the details that he offers.All the three judges who were accompanied by Judge Mahajan stopped by at a pan shop before they came back to Ravi Bhavan. The fact that all the three judges stayed together is the consistent account which emerges from the statements of Judge Modak and Judge Kulkarni which is corroborated by the statement of Judge Barde. There is no basis for the court to doubt the veracity of the natural account of the above three judicial officers (Judge Kulkarni, Judge Modak and Judge Barde). The court is requested to do so on the ground that the entry in the register at Ravi Bhavan mentions the name of Judge Kulkarni but does not contain any reference to the occupancy of Judge SM Modak or Judge Loya. Judge Kulkarni has expressly stated that a VIP suite was booked at Ravi Bhavan. 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. This is corroborated by a photocopy of the occupancy register which has been produced on record. All the three judicial officers were invited for the same event. If as friends and colleagues, they decided to share one room, that cannot be regarded as an unnatural course of conduct. There is no reason for this court to discard the consistent statements of the three judicial officers by engaging in surmises of the nature which are sought to be drawn by counsel for the petitioners. In fact, though nothing would turn on it, it is a matter of some interest that even the article that was published in the Caravan on 20 November 2017 records Judge Loya having had a conversation with his wife on the night of 30 November 2014 and informing her of the fact that he was staying at Ravi Bhavan together with the judges who had accompanied him to Nagpur. H

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59Copy pinpoint59. At this stage, we must also make a reference to certain other matters to which a reference has been copiously made on behalf of the petitioners to cast doubt on the circumstances in which Judge Loya had died. The first submission is that contrary to the directions that were issued in the judgment of this Court in its decision in CBI v Amitbhai Anil Chandra Shah (supra), JT Utpat who was nominated by the B Administrative Committee of the Bombay High Court to preside over the criminal trial was transferred on 25 June 2014. It has been urged that since the Court had on 27 September 2012 directed that the Administrative Committee would ensure that the trial is conducted from the beginning to the end by the same officer, JT Utpat ought not to have been transferred. We must note at this stage that Mr Dave appearing on behalf of the petitioners has categorically stated that the court should in the present proceedings, confine itself to the issue as to whether Judge Loya had died a natural death or otherwise. The issue as to whether Judge JT Utpat could have been transferred has no bearing on the circumstances in which Judge Loya died. Mr Rohtagi appearing on behalf of the State has urged that the trial was yet to begin and hence the transfer of Judge JT Utpat on his request cannot be faulted. We clarify that it is not necessary to express any opinion on the submission of Mr Rohtagi since we are of the view that the transfer of the earlier judge and the appointment of Judge Loya in June 2014 has no bearing on whether Judge Loya’s death on 1 December 2014 was due to natural causes.

60Copy pinpoint60. The petitioners have sought to rely upon the allegations against the then Chief Justice of the Bombay High Court, Shri Justice Mohit Shah made by the father and sister of Judge Loya. Reliance has also been placed on a hand-written note dated 18 February 2015 purportedly scribed by Anuj Loya after a meeting with the Chief Justice of the Bombay High Court, who had come to visit the family. The video recording of an interview given to Caravan by the father and sister of Judge Loya was also handed over to the court on a pen drive. The members of the family of Judge Loya have disassociated themselves from the statements attributed to them in the Caravan publication. The video recording, which we have seen, contains snippets of an interview. Evidently, only a part of the interview has been produced. The allegations against the Chief Justice of the Bombay High Court are hearsay.

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[DR. D. Y. CHANDRACHUD, J.]

61Copy pinpoint61. During the course of his submissions in rejoinder, Mr Dave A has attempted to discredit the discreet inquiry conducted by the Commissioner of the SID urging that the statement of Dr Prashant Rathi was recorded on 22 November 2017 by the Police Inspector (Crime) police station Sadar, before the state government had ordered a discreet inquiry on 23 November 2017. The submission is based on the hypothesis that the statement of Dr Rathi was recorded as a part of the discreet inquiry. This is seriously disputed by Mr Rohtagi who urged that the statement was recorded by the Sadar police station on 22 November 2017 after the articles in the Caravan had appeared on 20 and 21 November 2017. The discreet enquiry was held by the Commissioner, SID. Be that as it may, the presence of Dr Prashant Rathi is established in the accidental death summary (AD 00/14) dated 1 December 2014, in the inquest report, the receipt executed on 1 December 2014 by Sitabardi police station on handing over the dead body, and in the accidental death summary (AD 44/14) recorded by Sadar police station at 1600 hours on 1 December 2014. In the face of the contemporaneous documentary material, the statement of Dr Rathi recorded on 22 November 2017 cannot be construed as something which casts doubt on the validity of the discreet inquiry. Application for cross-examination

62Copy pinpoint62. During the course of his submissions, Mr Dave moved an application for cross-examination of the following persons whose statements were recorded during the course of the discreet inquiry: “1 Mr Sajeev Barve, Director General/Commissioner, State Inteeligence Department, Maharashtra, 2 Dr Prashant Bajrang Rathi, Resident of Sai Regency, Ravi Nagar, F Nagpur, 3 Mr Niranjan Takle, Reporter of CARAVAN, 4 Shri Srikant D Kulkarni, Member Secretary, Maharashtra State Legal Service Authority, G 5 Shri SM Modak, Principal District Judge, Pune, 6 Shri Vijay C Barde, Additional Sessions Judge, City Civil and Sessions Court, Greater Bombay, 7 Dr Pinak Gangadhar Rao Dande, Ram Nagar, Nagpur, H

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A 8 Shri Anuj Brij Gopal Loya s/o Late Sh. BH Loya, 9 Smt Sharmila Brij Gopal Loya w/o Sh BH Loya 10 Shri Hari Kishan Ramchandra Loya, f/o Late Sh BH Loya, 11 Dr Anuradha Balaprasad Biyani, sister of Late Sh BH Loya.”

63Copy pinpoint63. Order IX of the Supreme Court Rules 2013 deals with Affidavits. Rules 1 and 2 provide as follows: “1. The Court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

2. Upon any application evidence may be given by affidavit; but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent, and such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.” Rule 1 empowers the court to allow facts to be proved on affidavit for sufficient reason. However, if the court is of the view that the production of a witness for cross-examination has been desired by a party bona fide and that such a witness can be produced, an order shall not be made authorising the evidence of the witness to be given by affidavit. Under rule 2, a discretion is vested in the court to order the attendance for cross-examination of the deponent of an affidavit. Under Order IX, a discretion is vested in the court to allow cross-examination of a person who has filled an affidavit. A party to a proceeding before this court – particularly a proceeding under Article 32 – cannot demand as of right the production of a person, who has filed an affidavit, for cross- examination. Whether cross-examination should be allowed has to be determined by the court having regard to the interests of justice. Mr Dave submitted that this court should, in the first place, direct that the above persons should file affidavits before this court and that upon the H

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filing of those affidavits, they should be produced for cross-examination by him. In support of his submissions Mr Dave relied a few decisions of this court. In K. K. Kochunni v State of Madras (supra) this Court held: “12… it is possible very often to decide questions of fact on affidavits. If the petition and the affidavits in support thereof are not convincing and the court is not satisfied that the petitioner has established his fundamental right or any breach thereof, the Court may dismiss the petition on the ground that the petitioner has not discharged the onus that lay on him. The court may, in some appropriate cases, be inclined to give an opportunity to the parties to establish their respective cases by filing further affidavits or by issuing a commission or even by setting the application down for trial on evidence, as has often been done on the Original sides of the High Courts of Bombay and Calcutta, or by adopting some other appropriate procedure. Such occasions will be rare indeed and such rare cases should not, in our opinion, be regarded as a D cogent reason for refusing to entertain the petition under Article 32 on the ground that it involves disputed questions of fact.” In CS Rowjeev State of AP24 this Court held: “16. It is, no doubt, true that allegations of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. It is also somewhat unfortunate that allegations of this nature which have no foundation, in fact, are made in several of the cases which have come up before this and other courts and it is found that they have been made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of it at least might stick. Consequently it has become the duty of the Court to scrutinise these allegations with care so as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. In this task which is thus cast on the courts it would conduce to a more satisfactory disposal and consideration of them, if those against whom allegations are made came forward to place before the court either their denials or their version of the matter, so that the Court may be in a position to judge as to whether

(1964) 6 SCR 331

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A the onus that lies upon those who make allegations of mala fides on the part of authorities of the status of those with which this appeal is concerned, have discharged their burden of proving it. In the absence of such affidavits or of materials placed before the Court by these authorities, the Court is left to judge the veracity of the allegations merely on tests of probability with nothing more B substantial by way of answer. This is precisely the situation in which we find ourselves in the present case.” Reliance was placed on the decision in Sher Singh in Re25. The submission which has been urged is based on a mis-appreciation both of the role of the petitioners and on the scope of these proceedings. C The petitioners have moved this court in a petition filed in the public interest. Their position is that of a relator who seeks to bring a grievance to the attention of the court for the purpose of seeking a court mandated inquiry. None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya. As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya. 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. 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.The application shall accordingly stand rejected. Intervention by Centre for Public Interest Litigation

64Copy pinpoint64. Mr Prashant Bhushan appeared in these proceedings at the stage of the rejoinder. This was after the learned counsel appearing on behalf of the petitioners and intervenors had addressed the court and the court had heard submissions on behalf of the State of Maharashtra. The Centre for Public Interest Litigation which Mr Prashant Bhushan 25 (1997) 3 SCC 216 26 H I.A.No.31086 of 2018