TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR.

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

represents as counsel has sought to intervene by an application26. The A application relies on a report in Caravan published on 11 February 2018 stating that the post-mortem and histo-pathology reports were sent to a forensic expert, Dr RK Sharma, formerly attached to AIIMS, and that Dr Sharma has ruled out the possibility of the death being due to a heart attack. Moreover, it has been stated that the documents indicate signs of B trauma to the brain. Hence, it was urged that poisoning cannot be ruled out. The application for intervention states that the intervenor obtained a set of documents from Caravan, including the histo-pathology report and a copy of the ECG done at Dande hospital. Mr Prashant Bhushan claims to have forwarded the ECG and histo-pathology report to Dr Upendra Kaul, a former professor of Cardiology at AIIMS. Mr Prashant C Bhushan himself addressed an e-mail to Dr Upendra Kaul seeking his professional opinion on certain queries. Dr Kaul responded that the ECG “most unlikely.. has no evidence of a recent myocardial infarction”. Moreover, it has been stated that the histo-pathology of the heart mostly indicates that it was normal and that the coronary artery block in the D LAD “could be” an innocent bystander. The application for intervention also states that Mr Prashant Bhushan who is a member of the intervenor has spoken to other reputed cardiologists who are of the same opinion.

65Copy pinpoint65. The affidavit in support of the application for intervention has been sworn by Mr Prashant Bhushan personally. Mr Prashant Bhushan appeared on behalf of the intervenor as its counsel during the course of the hearing and not as a party in person.

66Copy pinpoint66. In response, Mr Mukul Rohtagi has placed on the record copies of two letters dated 14 and 16 February 2018 addressed to Dr Sidharth Gupta, Head of the Department of Forensic Medicine at AIIMS by the Senior Police Inspector at PS Sadar, Nagpur. A clarification was specifically sought in regard to the opinion furnished by Dr RK Sharma. In a response dated 3 March 2018, Dr Abhishek Yadav, Assistant Professor and Member Secretary, Departmental Committee, Department of Forensic Medicine, AIIMS has stated that besides constituting a committee of three doctors to examine the issue, AIIMS had addressed G a letter seeking a clarification from Dr RK Sharma. The letter extracts the following reply sent by Dr RK Sharma to AIIMS: “Thanks for your mail, I would like to state that I have been grossly misquoted by Caravan magazine regarding death of Judge Loya. H

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A The conclusions drawn are imaginary. I had general discussion with the reporter. I do not agree with contents of report published which are ascribed to me. I have not given any report regarding death of Judge Loya.” The letter dated 3 March 2018 from AIIMS accordingly contains the following clarification: “In continuation of the previous reply dated 16.2.2018, it is added that no doctor from the Department of Forensic Medicine has given any opinion about the death of Judge Loya in official or individual capacity to the Caravan Magazine or any other media agency. It is further reiterated that AIIMS New Delhi has a fixed protocol to respond only to official written request from the Government agency or Honourable Court with all the Mandatory corroborative investigating documents including Medical Documents for Medicolegal opinion and without the same holistic opinion can’t be formed for the perusal by law.” D The clarification issued by AIIMS indicates that Dr Sharma has categorically stated that he was grossly misquoted by Caravan magazine and that he does not agree with the contents of the report ascribed to him. It may also be noted that by a previous reply dated 16 February 2018 Dr Sidharth Gupta of AIIMS had stated thus: E “In reference to above, Kindly note that, AIIMS, New Delhi has a fixed protocol to respond only to the official written request from the government investigating agency or Honourable court with all the MANDATORY corroborative investigating documents including medical documents, details of scene investigation along with the interaction with the doctors who conducted the post- mortem, for medico legal opinion, since without the same, holistic opinion can’t be formed for the perusal by law.” From the material on the record it is evident that an effort has been made by Mr Prashant Bhushan to collect evidence to somehow bolster the case of the petitioners, acting in his personal capacity. A questionnaire in the form of leading questions was addressed by him to Dr Upendra Kaul, formerly at AIIMS, upon which a reply was obtained. The court has been apprised of the fact that following this, the senior police inspector at Sadar police station addressed a communication on 11 February 2018 H

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to Dr Harish Pathak, Professor and Head of the Department of Forensic A Medicine, KEM Hospital, Mumbai seeking his opinion on the basis of the report of the Regional Forensic Science Laboratory, the ECG, MLC papers and Meditrina hospital documents and histo-pathology report of the Government Medical College. In response, Dr Pathak by his e-mail dated 14 February 2018 sought additional documents. These were B furnished by the Senior Police Inspector, Sadar. Dr Harish Pathak has in a detailed and considered opinion categorically stated that the conclusion of the post-mortem that the death was due to coronary artery insufficiency is valid and is in accordance with medical knowledge on the subject. The opinion has been supported by references to medical texts.

67Copy pinpoint67. The opinion of Dr Harish Pathak is extracted below: C

“I have carefully perused the following documents:

1. Autopsy note of Shri Loya

2. ECG report D

3. Histopathology report.

4. ADR.

5. Panchnama.

6. C.A. Report. E

7. Statement of Dr Rathi, Dr Gavande, Dr Harkut, Dr Ganar.

8. Hospital (Meditrina) reports (Progress notes & MLC).

9. Two Articles from the Caravan magazine dated 26/01/18 & 11/02/18. F Based upon all the documents made available to me and the recent medical literature, I would like to state as under:

1. As per Doctor’s progress notes of Meditrina Hospital (Annexure, 1 Page 1) and statement given by Dr Pankaj Harkut (Annexure 2, Page 2), G On 01st December 2014, at around 04 am (As per Autopsy notes). When Mr Brijgopal H Loya complained of chest pain and restrosternal pain. (Doctor progress Notes Annexure 1) According to Principles of Internal Medicne, Harrison, H

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A (Annexure 3, Page 4) Chest discomfort is among the most common reasons for which patients present for medical attention at either an emergency department or an outpatient clinic. Retro-sternal pain is the typical clinical feature of myocardial ischemia (Annexure 3, Table on Page 5). Chest discomfort associated with Myocardial Infraction is typically more severe, B is prolonged usually lasting more than 30 minutes and is not relieved by rest (Annexure3, Page6). According to Oxford Dictionaries, (URL:https:// oxforddictionaries.com/definition/us) C Retro-sternal: Behind the breastbone. (Annexure 4, Page7) (Retrosternal chest pain is pain felt behind the sternum bone-a flat bone located in the middle of the chest. This bone may also referred to as the breastbone) Myocardium: The muscular tissue of the heart. (Annexure5, D Page 8) Ischemia :An inadequate blood supply to an organ or part of body, especially heart muscles. (Annexure 6, Page 9) Infraction: Obstruction of the blood supply to an organ or region of tissue, typically by thrombus or embolus, causing local death E of tissue. (Annexure 7, Page 10)

2. The ECG showed tall “T-waves” in the anterior leads. This is consistent with the history indicative of myocardial ischemia. According to Principles of Internal Medicine, Harrison, F Tall, positive hyperacute T waves are the earliest stages of ischemia. (Annexure 8, Page 12)

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Annexure 17, Page 34) A

4. According to the statement of Dr Pankaj Harkut, Director of Cardiology centre at Meditrina Institute of Medical Sciences, he had reviewed the ECG from Dhande Hospital which in his opinion showed tall T-Waves. (Annexure 2, Page 2a) As per, American Journal of Emergency Medicine (2007), B Hyperacute T wave, the early sign of myocardial infraction; 25, 859. El -859. e7 The three main differential diagnoses of HATW (hyper acute T waves) on electrocardiogram are : (i) left ventricular hypertrophy, (ii) hyperkalemia and (iii) early repolarization C variant. (Annexure 9, Page 13)

5. As per the statement of Dr Ninad D Gavande, MBBS, MD FMT, attached as honorary medico-legal consultant at Meditrina Hospital he had reviewed all relevant documents before the body was forwarded for autopsy examination. (Annexure 16, D Page 33) The body was shifted to Government Medical College mortuary and Panchnama was done wherein no external marks of injuries were noted. E

6. Autopsy examination was conducted on 01-12-2017 from 10:50am to 11:55 am at Government Medical College Nagpur, by Dr N K Tumram, who was then working as a lecturer at Forensic Medicine Department, Nagpur. At autopsy examination, no external marks of injuries were F found and on internal examination, following significant observations were made.

7. With regard to autopsy notes and observations therein, my opinion on the findings with their medico-legal interpretation and relevance along with authorities which are being attached as annexures. G

7A “Dura congested” According to Snell’s Textbook of Anatomy, Dura is a fibrous

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A tissue (Annexure 10, Page 15) It does not have blood supply in order to show the signs of congestion. Autopsy surgeon is expected to see if dura is intact and probably he meant to comment the Meanings, which are the B outer coverings of brain and their congestion in normally seen in most of the cases of sudden cardiac deaths. Hence the entire argument in caravan magazine about congestion of Dura and thereby it being the indication of head injury is unscientific, and devoid of any rationale. C 7B. “Heart congested, weighing 320 grams – Evidence of atherosclerosis in left coronary and left anterior descending coronary artery with calcification and luminal narrowing of 100 percent 01 cm distal to its origin and 90 % 02cm distal to its origin respectively. Evidence of hypertrophy of left ventricle present”. According to Principles of Internal Medicine, Harrison, Myocardial ischemia also can occur if myocardial oxygen demands are markedly increased and particularly when coronary blood flow may be limited, as occurs in severe left ventricular hypertrophy due to aortic stenosis. “..an increase in oxygen demand due to left ventricular hypertrophy secondary to hypertension and a reduction in oxygen supply secondary to coronary atherosclerosis and anemia. Abnormal constriction or failure of normal dilation of the coronary resistance vessels also can cause ischemia.’ (Annexure 11, Page 17) 7C. “Large vessels intact, evidence of atherosclerotic changes present in the inner walls of arch of aorta., ascending aorta” – No comment is required. G 7D. “Abdomen- All organs were congested and stomach contains 10 ml of yellowish juicy material, with no peculiar odour” – No comment required.

8. Routine vescera were preserved for chemical analysis and H

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the report of the same did not reveal any presence of poison. A Pieces of brain, lungs, liver, heart, spleen, both kidneys, left descending aorta were preserved for histopathology examination. The result of histopathology examination are not inconsistent with the observations at autopsy examination described and explained as above. B As to claims made by Newspaper Article: 8.¹. No Claim of Myocardial Infraction in the Histopathological report (The Caravan, Annexure 19, Page 46) · The earliest signs of Myocardial Infraction which can be detected through naked eyes and histopathological C examination appears not before 12 to 24 hours after the survival after acute coronary insufficiency. (Annexure 12, Page 20) · Dr Bernard Knight, in his book KNIGHT’S FORENSIC PATHOLOGY writes, “Most sudden deaths from Coronary D artery insufficiency do not have Myocardial Infraction, even when the most sophisticated techniques are employed for its detection. Neither do the majority have a coronary thrombosis, though severe coronary stenosis is by definition present. (Annexure 12, Page 23) E · A narrowing of the lumen to 01mm or lesser at a minimum of one point is required to diagnose of Ischemic Heart Disease. (Annexure 13, Page 25) · The lesions associated with atherosclerosis can be graded from Grade I to IV, based on percentage of narrowing of F lumen of Coronary artery, where Grade IV signifies thickening and calcification of wall of coronary artery with narrowing of lumen more than 75 %. (Annexure 13, Page 26). · Significant obstruction of the coronary artery lumen requires 75 % narrowing of the lumen (Forensic Pathology, Vincent G J DiMaio, Annexure 14, Page 28) In the present case, severe stenosis (Narrowing) in left coronary 100 % and left anterior descending 90 % was observed and noted at autopsy. The findings are consistent H

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A with the cause of death due to acute coronary insufficiency. Hence I do not find any merit in the said argument. 8.2 Once coronary arteries are calcified, one cannot die due to heart attack (The Caravan, Annexure 19, Page 46) · This is highly unscientific interpretation as calcified arteries B can be blocked by the dislodges thrombus and I find no merit in it and disagree with this opinion. 8.3 Once person alive for 30 minutes after symptoms condition of heart will have clear signs, (The Caravan, Annexure 19, Page 47) C · Nowhere in the medical literature I have come across such observation. In fact, the earliest signs do not appear before 12 hours. (Annexure 12, Page 20) · The fact gross changes in the myocardial tissue appears only D 18-24 hours post ischemia/infarction. (Practical Cardio Vascular Pathology, Mary N Sheppard Annexure 15, Page 31 8.4 No conclusive evidence of coronary artery insufficiency. (The Caravan, Annexure 19, Page 47) E · Following evidences are sufficient to reach to the conclusion of acute coronary insufficiency: a. Initial symptoms narrated by the deceased to the witnesses and the doctors at first hospital. b. ECG findings. F c. Coronary Artery Blockage seen at autopsy Hence, I find no merit in the argument and disagree with the same. 8.5 Blood stains over neck, cloths are indicative of heart injury G (The Caravan, Annexure 19, Page 47) · According to inquest panchnama and post mortem report, there deceased was wearing Grey Full Sleeve Shirt and blue color jeans pant with black belt. There is no mention of any blood stains. H

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· When clothes are put back on the body after autopsy by the mortuary attendants, the precision and neatness of clothing cannot be compared to the way a living person may dress. · After autopsy examination is over, the incisions over neck, chest, abdomen and head on the dead body are sutured after putting the dissected organs back in to the cavities. In spite of every precaution being taken to make sure that there is no leakage of post mortem blood from the stitched post mortem wounds, sometimes, minor leakage of blood tinged body fluid can happen. The chances of such leakage become high when bodies are being transported for long distances as it had happened in the present case. C

8.6 Every single item is congested hence possibility of poisoning. (Annexure 19, Page 17) This is absolutely unscientific opinion. In case of sudden cardiac deaths when heart suddenly stops beating, presence D of congestions of almost all the organ is an expected finding. In fact, congestion is such a common and nonspecific finding in many cases that one cannot in ordinary course of nature make much significant interpretation of it. 8.7 Question about chain of custody. (The Caravan, E Annexure 19, Page 47) · The bottles containing viscera for chemical analysis are always sealed by medical officer and handed over to the police. If Chemical analyser observes any tempering with the seal, he reports about the same. Since no such report exists, it F would be unreasonable and unjustifiable to doubt sanctity of evidence. 8.8The Deceased had healthy life style and no family history of heart disease hence could not have died due to sudden cardiac arrest at the young age of 48 years. (Caravan, G Annexure 19, Page 48) · Family history of cardiac illness only makes a person more prone to the risk of cardiac disease but does not rule out the possibility of the same among the persons without such history. H

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A 9.Conclusion: On carful perusal of all documents made and relevant medical literature on the subject, it is my opinion that,

1. Late Shri Brijgopal Harikisan Loya died due to acute coronary insufficiency, which was a sudden natural death. B

2. There was no evidence to suggest any inconsistencies in the history, clinical findings and autopsy report made available to me.

3. Claims of foul play and suspicions in the articles in The Caravan C made are unscientific and incorrect, as explained by me in this report with relevant references. Dr Harish M Pathak Professor & Head Forensic Medicine & Toxicology Seth GSMC & KEM Hospital, Mumbai.” D

68Copy pinpoint68. We are not really considering here whether the opinion of Dr Pathak should be preferred to what was opined by Dr Kaul. The point of the matter is that facts have emerged from the record which indicate that a carefully orchestrated attempt has been made during the course of these hearings on behalf of the Centre for Public Interest Litigation to create evidence to cast a doubt on the circumstances leading to the death of Judge Loya. In their practice before this court, Counsel are expected to assist the court with a sense of objectivity in aid of justice. What has happened here is that Mr Prashant Bhushan has adopted a dual mantle, assuming the character of a counsel for the intervenor as well as an individual personally interested on behalf of the intervening organisation of which he is a member. He has gone to the length of personally collecting evidence to somehow bolster the case. The manner in which the opinion of Dr Kaul was obtained on the basis of a laconic questionnaire leaves much to be desired and is a singular reflection on the lack of objectivity which is to be expected from counsel appearing before this Court. This has bordered on an attempt to misrepresent the facts and mislead the court.

69Copy pinpoint69. During the course of his submissions, Mr Dave filed before this Court a compilation, inter alia, consisting of a proceeding instituted

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under Section 482 of the Cr PC (Criminal Application 824 of 2014) before the Nagpur Bench of the Bombay High Court by five petitioners for quashing a criminal case pending on the file of the Joint Civil Judge, Junior Division and JMFC, Nagpur. The fourth petitioner in the proceeding is Devendra Gangadhar Fadnav is, the Chief Minister of Maharashtra. The case relates to an incident which took place on 7 June 1991 on account of the removal of certain construction in Nagpur. As a result, two crimes came to be registered for offences under Sections 147, 148, 149, 294, 448,324, 336 and 427 of the Penal Code. The Division Bench of the High Court noted, that though the incident was of 1991, not much progress has been made in that case and with the passage of time, the dispute was amicably settled between the parties who are residents of C Nagpur localities. The Bench of the Bombay High Court at Nagpur, consisting of BR Gavai and VM Deshpande, JJ, relied upon a decision of this Court in Narinder Singh v State of Punjab27 and held thus: “The Apex Court in the case of Narinder Singh and Others vs State of Punjab and Others, (2014) 6 SCC 466 has laid down various guidelines to be followed by this Court while exercising its power under Section 482 of the Code of Criminal Procedure for quashing criminal proceedings. One of the guidelines laid down by the Apex Court is that normally this Court would not entertain an application for quashing the proceedings wherein an element of public law is involved. In the present case, perusal of the record would reveal that the proceedings came to be initiated against each other out of a dispute which is purely private and where no element of public law is involved. Another guideline laid down is that if there is no possibility of trial being culminated into conviction, this Court should exercise powers under Section 482 of the Code F of Criminal Procedure to give an end to the criminal proceedings. Since the parties have agreed to give an end to the dispute amongst themselves, there is not even a remote possibility of trial ending into conviction. We, therefore, find that it would be in the interest of justice to accept the settlement between the parties and to give an end to the criminal proceedings so that the parties are in a G position to maintain peace and harmony in the area where they reside.”

27 (2014) 6 SCC 466 H

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A The criminal case was accordingly quashed. Mr Dave has gone to the extent of insinuating that one individual is controlling the entire judiciary in Maharashtra and elsewhere.

70Copy pinpoint70. We are rather surprised at the manner in which an insinuation has been made by producing the above order, which was passed in completely unrelated proceedings. The insinuation is against the judges of the Bombay High Court at Nagpur for having quashed a criminal case in which the present Chief Minister was involved. We are not called upon to evaluate the merits of the decision, save and except to note that the High Court in quashing the proceedings placed reliance on a decision of this Court and had noted that the dispute was admittedly private in nature where no element of public law was involved. The attempt of the petitioners is to create prejudice and to malign the dignity of the judges, particularly of Justice BR Gavai. Copies of the criminal application and of the order of the Bombay High Court form part of the same compilation in which is also annexed a copy of the article published in the Indian D Express of 27 November 2017, referring to the statements of Justice Gavai and Justice Shukre. This is another instance in the course of the hearing of the present case where a matter extraneous to the subject of the inquiry before the court has been sought to be relied upon to somehow sensationalise the case. What is worse is the manner in which wholly unfounded aspersions have been cast on the judges of the Bombay High E Court following a decision which has been taken in the judicial capacity. This constitutes a serious attempt to scandalise the court and obstruct the course of justice. Public Interest Litigation

71Copy pinpoint71. Public Interest Litigation has developed as a powerful tool to espouse the cause of the marginalised and oppressed. Indeed, that was the foundation on which public interest jurisdiction was judicially recognised in situations such as those in Bandhua Mukti Morcha v Union of India28. Persons who were unable to seek access to the judicial process by reason of their poverty, ignorance or illiteracy are faced with G a deprivation of fundamental human rights. Bonded labour and under trials (among others) belong to that category. The hallmark of a public interest petition is that a citizen may approach the court to ventilate the grievance of a person or class of persons who are unable to pursue their 28 (1984) 3 SCC 161 H

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rights. Public interest litigation has been entertained by relaxing the rules of standing. The essential aspect of the procedure is that the person who moves the court has no personal interest in the outcome of the proceedings apart from a general standing as a citizen before the court. This ensures the objectivity of those who pursue the grievance before the court. Environmental jurisprudence has developed around the rubric of public interest petitions. Environmental concerns affect the present generation and the future. Principles such as the polluter pays and the public trust doctrine have evolved during the adjudication of public interest petitions. Over time, public interest litigation has become a powerful instrument to preserve the rule of law and to ensure the accountability of and transparency within structures of governance. Public interest litigation is in that sense a valuable instrument and jurisdictional tool to promote structural due process.

72Copy pinpoint72. Yet over time, it has been realised that this jurisdiction is capable of being and has been brazenly mis-utilised by persons with a personal agenda. At one end of that spectrum are those cases where public interest petitions are motivated by a desire to seek publicity. At the other end of the spectrum are petitions which have been instituted at the behest of business or political rivals to settle scores behind the facade of a public interest litigation. The true face of the litigant behind the façade is seldom unravelled. These concerns are indeed reflected in the judgment of this court in State of Uttaranchal v Balwant Singh Chaufal29. Underlining E these concerns, this court held thus: “143. Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We F think time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective G steps to prevent and cure its abuse on the basis of monetary and non-monetary directions by the courts.”

73Copy pinpoint73. The misuse of public interest litigation is a serious matter of 29 (2010) 3 SCC 402 H

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A concern for the judicial process. Both this court and the High Courts are flooded with litigation and are burdened by arrears. Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes. This court has a long list of pending cases where the personal liberty of citizens is involved. Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice. It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. This has spawned an industry of vested interests in litigation. There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention. Worse still, such petitions pose a grave danger to the credibility of the judicial process. This has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law. This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services. Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. Courts resolve disputes about legal rights and entitlements. Courts protect the rule of law. There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space.

74Copy pinpoint74. The present case is indeed a case in point. Repeatedly, counsel for the petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence. An aura of good faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary. But as the submissions have evolved, it has become clear that the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions. Judicial review is a potent weapon to preserve the rule of law. However, here we have been confronted with a spate of

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scurrilous allegations. Absent any tittle of proof that they are conspirators in a murder the court must stand by the statements of the judicial officers. The judges of the district judiciary are vulnerable to wanton attacks on their independence.This court would be failing in its duty if it were not to stand by them.

75Copy pinpoint75. We must in this context record what we have heard during the course of the submissions. Mr Dave has urged that (i) he wants to cross-examine the judges; and (ii) he does not believe the judicial officers. Aspersions have been cast on the Administrative Committee of the Bombay High Court. This court has been called upon to issue a notice of contempt to the judges on the Committee at the relevant time. Ms Jaisingh as joined the fray by requesting that this court to issue contempt notices to the Administrative Committee of the Bombay High Court. Junior counsel appearing with Mr Giri went to the extent of urging that the judicial officers whose statements were recorded during the discreet inquiry are suspect. Even the judges of this Bench hearing the present proceedings, have not been spared from this vituperative assault on the judiciary.

76Copy pinpoint76. Mr Prashant Bhushan argued that because two of the judges constituting the present Bench (Justice AM Khanwilkar and Justice DY Chandrachud) were judges of the Bombay High Court,they may have known the judicial officers who have submitted statements or Justice E Bhushan Gavai and Justice SB Shukre. If this were to be the test, it is rather ironical that the petitioners had instituted proceedings before the Bombay High Court each of whose judges were expected to be faced with the same situation. We informed Mr Bhushan that a decision as to whether a judge should hear a case is a matter of conscience for the judge. There is absolutely no ground or basis to recuse. Judges of the F High Court hear intra court appeals against orders of their own colleagues. References are made to larger Benches when there are differences of view. Judges of the Supreme Court hear appeals arising from judgments rendered by judges of the High Courts in which they served, either as judges or on appointments as Chief Justices. Maintaining institutional G civilities between or towards judges is distinct from the fiercely independent role of the judge as adjudicator. We emphatically clarify that on the well-settled parameters which hold the field, there is no reason for any member of the present Bench to recuse from the hearing. While

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A it is simple for a judge faced with these kinds of wanton attacks to withdraw from a case, doing so would amount to an abdication of duty. There are higher values which guide our conduct. Though Mr Bhushan ultimately made it clear that he is not filing an application for recusal – and none has been filed – we have recorded what transpired to express our sense of anguish at the manner in which these proceedings have been conducted. Serious attacks have been made on the credibility of two judges of the Bombay High Court. The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt. However, on a dispassionate view of the matter, we have chosen not to initiate proceedings by way of criminal contempt if only not to give an impression that the litigants and the lawyers appearing for them have been subjected to an unequal battle with the authority of law. We rest in the hope that the Bar of the nation is resilient to withstand such attempts on the judiciary. The judiciary must continue to perform its duty even if it is not to be palatable to some. The strength of the judicial process lies not in the fear of a coercive law of contempt. D The credibility of the judicial process is based on its moral authority. It is with that firm belief that we have not invoked the jurisdiction in contempt. E Conclusion

77Copy pinpoint77. For the above reasons, we have come to the conclusion that E there is absolutely no merit in the writ petitions. There is no reason for the court to doubt the clear and consistent statements of the four judicial officers. The documentary material on the record indicates that the death of Judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry. F

78Copy pinpoint78. The hearings commenced on 2 February 2018 and ended on 16 March 2018. The batch of cases was heard on 2 February 2018, 5 February 2018, 9 February 2018, 12 February 2018, 19 February 2018, 5 March 2018, 8 March 2018, 9 March 2018 and 16 March 2018. Having regard to the large volume of work, we had considered it appropriate to G list the hearings at 2 pm on Mondays and Fridays, after the miscellaneous cases had been dealt with. The conduct of the petitioners and the intervenors is, as we have indicated, lacking in bona fides and reveals a misuse of judicial process.

79Copy pinpoint79. The petitions shall stand dismissed. H

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80Copy pinpoint80. The transferred cases and pending applications, if any, are A also disposed of. Transferred Case (Criminal) No. 2 of 2018: 81 This Transferred case was heard together with the accompanying group of cases30 in which judgment has been delivered today. In so far as the circumstances relating to the death of Judge Loya B are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court. Since the case also raises certain other matters (other than the death of Judge Loya), learned counsel requested this Court to remit the proceedings back to enable the petitioner to pursue before the High Court the reliefs sought on matters other than the death of Judge Loya. We find the request to be fair and proper. We accordingly direct that the present case shall be remitted back to the Nagpur Bench of the High Court of Judicature at Bombay. However, we clarify that the circumstances relating to the death of Judge Loya which have been dealt with by this Court in the judgment delivered today stands concluded and the High Court would be at liberty to deal with other issues raised in the petition/case.

82Copy pinpoint82. Ordered accordingly.

Divya Pandey Matters disposed of. E

30 WP (C)No. 19 of 2018, W P (C) No 20 of 2018, W P (C) No 73 of 2018 and TC (Crl.)No.¹ of 2018 H