The mysterious death

In response to journalists’ questions at their January 12 press conference, one of the four senior judges of the Supreme Court acknowledged, emphatically, that the mishandling of the case regarding special CBI judge Brijgopal Harkishan Loya’s death had prompted them to make their grievances public.

Judge Loya, who was hearing the murky and politically sensitive Sohrabuddin Sheikh fake encounter case, died suddenly of a heart attack in Nagpur in December 2014. Circumstances surrounding his death have been questioned by family members and two people who filed public interest litigation (PIL) petitions in the Supreme Court asking for an independent probe. The case became a flashpoint in early January this year when Chief Justice of India (CJI) Dipak Misra assigned it to a bench headed by a relatively junior judge. The four judges, who believed the case deserved a senior judge, expressed their reservations to the CJI. Chief Justice Misra reportedly paid no attention.

The two petitions were filed by Tehseen Poonawalla, a Congress party worker, and the Mumbai-based journalist Bandhuraj Lone. The cases were scheduled for hearing by Justices Arun Mishra and Mohan Shantanagoudar, both lower in rank than Justices J. Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph. The January 12 press conference did seem to produce some reaction. On January 16, Justice Arun Mishra, apparently distressed over the implications of the press conference, said the case should be placed before an “appropriate bench”, a term that is understood to be used when the assigned judge chooses not to hear a case.

On January 22, a three-judge bench headed by the CJI began hearing the petitions filed by Tehseen Poonawalla and Bandhuraj Lone, which seek an independent probe in the case. The other two judges on the bench are Justices A.M. Khanwilkar and D.Y. Chandrachud. The Supreme Court also transferred to itself two similar petitions that had been filed in the Bombay High Court. Lawyers contacted by Frontline said the stakes were huge in the case, particularly since political heavyweights were involved.

The bench headed by CJI Misra has reportedly stated that it will take an objective view and examine every document gathered by the Maharashtra government, the petitioners and the interveners. These include post-mortem details and a 50-page intelligence report. The court has also instructed the Maharashtra government to hand over confidential documents to the petitioners. These could be potentially explosive, lawyers believe.

If the first hearing is an indication of things to come, this will probably be a closely watched legal fight with dramatic and difficult moments. Counsel for the Maharashtra government is the high-profile lawyer Harish Salve, who represented Amit Shah, the Bharatiya Janata Party (BJP) president, an accused in the Sohrabuddin encounter case. Shah has been discharged, and Salve can perhaps take credit for that. The petitioners are also represented by well-known lawyers, Dushyant Dave and Indira Jaising.

During the hearing on January 22, Salve fired his first salvo by saying that a senior police officer had carried out a “discreet inquiry” after media reports raised questions on the circumstances surrounding the judge’s death. The statements of four judges who had travelled to Nagpur with Loya to attend a wedding were recorded after obtaining permission from the Chief Justice of the Bombay High Court, he said. These statements showed there was no foul play. The judges are Shrikant Kulkarni, S.M. Modak, V.C. Barde and Roopesh Rathi, who said they were with Loya in his last hours.

Dave countered this by saying there were serious contradictions in the explanations given by the State. “The only one who is interested in stalling an independent inquiry is your client,” he said to Salve, referring to Amit Shah. Dave also told the court that since Salve had already represented Shah, he should not be allowed to represent the State government in the matter.

A recapitulation

Judge Loya died in December 2014. In November 2017, The Caravan magazine published an explosive expose on the details of his death. The implications shook up the most revered institution in the country, the Supreme Court.

Following The Caravan ’s stories, several other publications and citizens’ groups began independent investigations into the death. Some pieces reinforced The Caravan journalist Niranjan Takle’s report and some pointed to the gaps in it. The stories collectively brought the attention back to Amit Shah, who appears to be the BJP’s most powerful man after the Prime Minister.

According to The Caravan , Judge Loya’s niece Nupur Biyani approached Takle a year ago to look into some of the details surrounding her uncle’s death as she had some concerns regarding the circumstances under which he died. Takle took on the task and broke the story a year later. The details that are corroborated by official reports and interviews are astounding. Here is the gist.

On November 30, 2014, Loya travelled to Nagpur with two other judges for a colleague’s daughter’s wedding. They stayed at a government guest house for VIPs. At the time Loya was hearing just one case—the high-profile and politically sensitive case of Sohrabuddin’s death in a fake encounter, in which Shah was an accused. Soon after the ceremony, Loya apparently went back to his room, spoke to his wife, and called it a night.

Loya’s sister Anuradha Biyani, a government doctor who provided the bulk of the information on the case and helped in piecing together the story, says her father received a call just after midnight on November 30/December 1, 2014, informing him that his son had passed away following a cardiac arrest. Anuradha Biyani said the family was told Loya had complained of chest pain and was rushed in an autorickshaw to the nearby Dande Hospital— “an obscure place…that did not have an ECG machine,” she said. According to another version, one of the judges who was with him drove him to the Dande Hospital. He was later shifted to Meditrina Institute of Medical Sciences, which had better facilities, but was declared dead on arrival. The time of death was recorded as 6:15 a.m.

A Scroll.in story, which followed The Caravan piece, cited police records as stating that Loya died at 4 a.m. and that a post-mortem was conducted soon after. The story questions the discrepancy in timings. Post-mortems can only be conducted once a family member signs an approval. Anuradha Biyani said a distant cousin living in Nagpur was told of Loya’s death and asked to identify the body and sign on post-mortem papers. She pointed out that a post-mortem need not be conducted in such a hurried manner unless there was an emergency. It is not clear why this was done.

Anuradha Biyani, who apparently kept extensive notes, said her father, her sister Sarita Mandhane and she received a call from a Rashtriya Swayamsewak Sangh (RSS) worker called Ishwar Baheti informing them that Loya’s body would be brought to Gategaon by an ambulance. Takle said in his story: “Biyani told me: ‘Nobody knows why, how and when he came to know about the death of Brij Loya.’” Sarita Mandhane said she was absolutely perplexed by Baheti’s call and wondered how he was able to contact her. She was picking up her nephew from a hospital in Latur when she got the call. The sisters say nobody accompanied the body from Nagpur except for the driver. Anuradha Biyani noted in her diary: “He was a CBI court judge, he was supposed to have security and he deserved to be properly accompanied.” Takle quoted the comment in his piece.

The sisters were also concerned about the condition of the body. It appeared the post-mortem was a rushed cut-and-stitch-up job. A serious concern was bloodstains on the judge’s clothes and an injury on the head. If it was a cardiac arrest, why would there be blood all over his body, they ask. Anuradha Biyani pointed out that no bleeding happens during post-mortem because the heart and lungs would have stopped functioning.

Lawyers point out that a post-mortem usually is done when the cause of death is unclear or when there are suspicions regarding the circumstances of the death. Usually, a panchnama follows, and the police are expected to seal the dead person’s personal belongings. Anuradha Biyani told Takle that none of these procedures was followed. In fact, when the family asked for Loya’s mobile phone, they were told it would be given later. It was eventually given with all the data removed. The death itself was hardly reported in the media. It was surprising that the press did not pick it up, given that Loya was hearing a major case.

The Caravan story said: “From these accounts, deeply disturbing questions emerged about Loya’s death: questions about inconsistencies in the reported account of the death; about the procedures followed after his death; and about the condition of the judge’s body when it was handed over to the family. Though the family asked for an inquiry commission to probe Loya’s death, none was ever set up.”

Explosive allegation

Anuradha Biyani claimed that her brother had told her that he was offered a Rs.100-crore bribe by Mohit Shah, who was then the Chief Justice of the Bombay High Court, to give a favourable verdict in the case involving Amit Shah. Justice Mohit Shah was apparently in Nagpur attending the same wedding and went to Meditrina Hospital when he heard of Loya’s death. However, he did not visit the family in spite of a request by Loya’s son to set up an inquiry into the death. Justice Shah has not responded to the current controversy.

Interestingly, Loya’s son, Anuj, and his wife, Sharmila, have distanced themselves from the revelations and issued a statement saying they did not suspect any foul play. After the recent flutter over the case, Anuj told the media that his immediate family believed Judge Loya died of natural causes and pleaded to be left out of the recent developments.

Nirjhari Sinha, convener of Truth of Gujarat, which worked with Sohrabuddin’s brother in filing the fake encounter case, said: “I think for all of us following the Sohrabuddin case, the corruption charge was a jolt. There is a lot of faith in the judiciary and the investigative agencies of this country. These allegations indicate that there is a subversion even within democratic institutions.”

The importance of understanding and pursuing this case in the context of the current crisis within the judiciary is perhaps best explained by Harish Khare, senior journalist and editor-in-chief of The Tribune : “And that case is one that goes to the very core of the judiciary’s role in ensuring that we remain a country governed by the rule of law. When a judge looking into an extremely sensitive case dies in mysterious circumstances, every single judicial functionary is left to draw his/her fearful conclusions. The entire judicial system collapses if a perception gets abroad that a powerful political personality can intimidate a judge or when judges start feeling vulnerable on account of their own physical safety.”