Chief Justice of India Dipak Misra has taken charge of the case of the allegedly mysterious death of Special CBI judge Brijgopal Harkishan Loya after a bench headed by Justice Arun Mishra recused itself over perceived slights from members of the judicial fraternity. It is surprising that the apex court has chosen to hear a case based on media innuendo, allegations from family members who talk to select journalists from certain media outlets after avoiding every legal avenue to establish (if true) that the judge died an unnatural death (read murder).

Judge B.H. Loya was hearing the alleged encounter killing of alleged Lashkar-e-Toiba member Sohrabuddin Sheikh in 2005, in which then Gujarat minister of state for home, Amit Shah, was accused. The apex Court had shifted the trial to Maharashtra in 2012 and ordered that the same judge hear it from start to finish. However, Special CBI judge J.T. Utpat was transferred on June 25, 2014 after insisting on Amit Shah’s presence on June 26. It is said that Loya, too, demanded Shah’s presence on December 15; he died on December 1. However, Sohrabuddin’s brother never protested as Utpat had sought transfer for his children’s education.

The question arises why the Court has permitted a fishing expedition. Previously, it indulged activist Teesta Setalvad in the Gujarat riot cases, even admitting an unsigned document moved at her behest by the National Human Rights Commission, despite it being debunked by star witness, Zahira Sheikh. Now, it has agreed to hear public interest litigations seeking inquiry into Loya’s death, by journalist B.R. Lone and Tehseen Poonawalla, brother-in-law of Robert Vadra, neither of whom has knowledge of the matter.

Niranjan Takle (Caravan, November 20, 2017) was approached in November 2016, two years after Loya’s death, and met his sisters, Anuradha Biyani (a medical doctor) and Sarita Mandhane, and father, Harkishan, and tracked persons present at Loya’s death. Briefly, Loya spoke to his wife, Sharmila, for 40 minutes on the night of November 30, 2014, describing the wedding and reception of a colleague’s daughter in Nagpur. Next morning, the judge’s wife in Mumbai, father in Latur city, and sisters in Jalgaon and Aurangabad were informed that the judge had passed away on December 1, 2014. He had developed chest pain in the night, was taken to a private hospital, Dande Hospital, by auto rickshaw, given medication and shifted to a larger private hospital, Meditrina Hospital, where he was declared dead on arrival.

Loya’s wife and son did not speak to the journalist, but the sisters said they were informed of the death by local judge Vijaykumar Barde; Harkishan said an RSS worker, Ishwar Baheti, offered to arrange for the body to reach their ancestral village, Gategaon, in Latur district (a journey of 12 hours). The body reached around 11.30 p.m. with only the ambulance driver. Loya’s wife and children arrived from Mumbai with some judges, one of whom allegedly told them not to speak to anybody.

The family claims there were bloodstains on Loya’s neck and shirt, and an injury on the head. Biyani claims she wanted a second post-mortem, but the friends and colleagues present discouraged the family from complicating the issue further, whatever that means. Harkishan said the family was scared (of whom?) and was forced to carry out Loya’s funeral (by whom?). If the family was frightened in December 2014, what made the fear vanish in November 2016 when they approached the Caravan reporter, who took one year to publish the story?

The family said Baheti returned Loya’s mobile phone a few days later (to the wife or father?), with all SMS messages deleted, including one that said, ‘Sir, stay safe from these people’. Biyani alleged that Loya told her during the family’s Diwali celebration in Gategaon, that Chief Justice Mohit Shah had offered him a bribe of Rs 100 crore for a favourable verdict before December 30, when it wouldn’t attract attention because there was going to be an explosive story. This was M.S. Dhoni’s retirement from Test cricket; was this also planned?

Harkishan said Loya was planning to resign. It seems pertinent that despite being under pressure, Loya does not seem to have explicitly refused the bribe, and though allegedly fearing for his life, he did not file a case of bribery and intimidation, or seek police protection. Nor did he recuse from the case.

Chief Justice Mohit Shah reportedly visited the family in Mumbai only on 18 February 2015; Loya’s son, Anuj, wrote to the family (grandfather?) the same day, “I fear that these politicians can harm any person from my family...” But why would anyone harm the family when Loya was dead and Amit Shah already exonerated by the next judge? Anuj recently addressed a press conference stating he believes the death was natural and urging peace for the family.

Indian Express (January 17, 2018) reported that an investigation by Sadar police station under Section 174 of the Cr.P.C. showed nothing suspicious about Loya’s death; the autopsy ruled out poisoning. Nor was he ferried to the hospital in an auto-rickshaw; local judge Vijaykumar Barde drove him to Dande Hospital in his own car, followed by Rupesh Rathi, then deputy registrar, Nagpur bench of the high court. A relative, Rukmesh Jakhotia of Aurangabad, was alerted by the brother judges in Nagpur and he asked Dr Prashant Rathi, a Nagpur resident, to visit the hospital; Rathi signed the post-mortem report and accepted judge Loya’s body. Two civil judges, Yogesh Rahangdale and Swayam Chopda, followed the ambulance in their car, which developed a snag and hence they arrived at the funeral a little late, with constable Prashant Thakre.

It is unfortunate that family members of judge Loya are fuelling conspiracy theories while remaining in the shadows. They cannot explain their failure to call the police and ensure a second post-mortem after receiving the body in an allegedly dubious condition. Yet they insinuate that the two judges who attended the Nagpur wedding with Loya, the Chief Justice of Bombay High Court and the Mumbai judges who attended the funeral, were all party to a conspiracy to murder Loya. This is ridiculous; it is also criminal defamation.

Sadly, the Supreme Court is giving credence to this mud-slinging exercise. There is no body, no witness, no evidence, no complainant with locus standi, but the accusation is being heard by the highest judge in the land. We have fallen on hard times.

The author is Senior Fellow, Nehru Memorial Museum and Library

The Pioneer, 23 January 2018

https://www.dailypioneer.com/2018/columnists/fight-for-justice-or-fishing-expedition.html