Why the Supreme Court should take questions about the death of a CBI judge seriously

A two-part report published in The Caravan on Monday and Tuesday has raised disturbing questions about the death of Brijgopal Harkishan Loya, the Mumbai judge who handled the Sohrabuddin Sheikh fake encounter case involving Bharatiya Janata Party president Amit Shah.

Shah was minister of state for home in Gujarat when the encounter took place in November 2005 and was one of the primary accused in the chargesheet filed by the Central Bureau of Investigation about the murder.

Sheikh was shot dead on November 26, 2005, by the Gujarat police, who claimed that he was a Lashkar-e-Taiba terrorist on a dangerous mission. A Special Investigation Team set up by the Supreme Court later found that Sheikh, his wife Kauserbi, and associate Tulsiram Prajapati had actually been detained by policemen three days earlier, when they were travelling on a bus from Hyderabad to Sangli in Maharashtra. The investigation found that Sheikh was killed in an extra-judicial execution and dismissed the allegation that he was a terrorist. Kauserbi, the investigations revealed, was killed by the Gujarat police on November 29, 2005.

A year later, on December 28, 2006, Prajapati, an eyewitness in the case, was shot dead by the Gujarat police at a village near the Gujarat-Rajasthan border.

Investigations found phone records suggesting that Amit Shah had been in touch with the accused police officers between September 2006 and January 2007. A Gujarat Criminal Investigation Department inquiry found that the frequency of the calls from Shah to these officers was suspicious since a state home minister was not expected to directly interact with lower-level officers.

In January 2010, the Supreme Court transferred the case to the CBI. The CBI filed a chargesheet against Amit Shah in a Gujarat court in July 2010. The agency also asked for the trial to be conducted outside Gujarat, arguing that witnesses were being intimidated and the proceedings could not be held in a free and fair manner in the state. The Supreme Court moved the trial to Mumbai in September 2012 and directed that the trial be heard by the same judge from start to finish.

Meanwhile, in September 2013, in a letter to then Prime Minister Manmohan Singh, BJP politician Arun Jaitley, who was then leader of opposition in Rajya Sabha, alleged that the legal department of the CBI had stated that there was no case against Amit Shah and that the agency was trying to falsely implicate him. Jaitley said that Ashwani Kumar, who was then director of CBI, had endorsed a note stating that “the arrest of Amit Shah would enable the CBI to get some more witnesses particularly the police officers since they would then feel intimidated” and that “arresting Amit Shah was necessary since it was necessary to reach the eventual target of investigation of Narendra Modi”.

Things changed rapidly in May 2014, when the BJP came to power at the Centre. The CBI special court’s trial judge, JT Utpat, was transferred on June 25, 2014. He was replaced by Brijgopal Loya. Loya died sometime between the night of November 30 and the early morning of December 1, 2014, in Nagpur, where he had travelled for a colleague’s daughter’s wedding. His replacement, MB Gosavi, after hearing Amit Shah’s discharge petition from December 15 to 17, dropped all charges against the BJP leader on December 30, 2014. The case was foisted on Shah for “political reasons”, Gosavi said in his discharge order.

The CBI did not file a appeal the discharge and the Bombay high court did not allow allow former bureaucrat and social activist Harsh Mander’s petition to question the discharge in public interest and, finally in 2016, the Supreme Court refused to re-open the case against Shah, on the ground that Mander was in no way an “affected person”.

Meanwhile, several high-profile accused policemen have also been discharged, including former Gujarat Anti-Terrorism Squad Chief DG Vanzara and Rajasthan cadre Indian Police Service officer MN Dinesh.

Judge’s death

Three years ago, a post-mortem report had said Brijgopal Loya’s death was the result of a heart attack. But this week, an investigation by Caravan, based on video interviews with Loya’s family, has raised disturbing questions.

The most startling of the allegations related to the involvement of former Bombay High Court Chief Justice Mohit Shah, who the family claimed had offered Loya a bribe of Rs 100 crores to give a verdict favourable to Amit Shah.

Mohit Shah is from Gujarat and was first appointed as an additional judge in the Gujarat High Court in 1995. He was one of the longest-serving chief justices of the Mumbai High Court.

Apart from the mystery around Loya’s death, the family’s allegations have also raised serious doubts about the security of judges who resist influence and act independently, something the Supreme Court may have to take note.

Who authorised the post-mortem of Loya’s body?

Perhaps the primary question that leads to suspicion about the judge’s death is the manner in which the post-mortem of his body was conducted. By the time the family was informed about Loya’s death, the autopsy was already completed. Loya’s father told Caravan that his son’s body was sent to the ancestral home in Gategaon, in Latur district of Maharashtra, after the autopsy.

In standard practice, the police wait for the immediate family’s concurrence before proceeding with a post-mortem. Sometimes, a post-mortem is delayed for hours or even days as the police wait for the permission from the family. In this case, none of Loya’s immediate family members gave the go-ahead for the procedure. The autopsy report was signed by a “paternal cousin brother”. “I do not have any brother or paternal cousin brother in Nagpur,” Loya’s father told the magazine.

Though the autopsy concluded that Loya died of a heart attack and said the body was dry, Loya’s niece Nupur Balaprasad Biyani told the Caravan that there were bloodstains “on the neck at the back of the shirt” and “there was blood and an injury on his head … on the back side,” and that “his shirt had blood spots”.

More importantly, families are usually informed the moment a person is taken to the hospital. In this case, the police decided to inform the family after the post-mortem. There is a big question mark on the time of death as the post mortem report is said to record that Loya “died on 1/12/14 at 0615 hours” after experiencing “chest pains at 0400 am” but the Caravan report quotes the Loya’s family members as saying that they began receiving calls about his death from 5 am onwards. The report also quotes “two sources in Nagpur’s Government Medical College and Sitabardi police station” as saying that “they had been informed of Loya’s death by midnight, and had personally seen the dead body during the night. They also said that the post-mortem was done shortly after midnight.”

It also remained unclear as to why the only transport that could be arranged to take Loya to hospital, when he reportedly complained of chest pain late at night, was an auto rickshaw. The guest house he was staying at regularly hosts important personages, and it remained a mystery why no other vehicle could be made available for him.

Role of RSS worker

Loya had gone to Nagpur to attend the wedding of the daughter of a fellow judge, Sapna Joshi. He was accompanied from Mumbai by two judges who had persuaded him to go along with them. But curiously, Loya’s body was sent to the ancestral home Gategaon, when it would perhaps have been more obvious to take the body back to Mumbai. Even more strangely, none of Loya’s colleagues accompanied his body from Nagpur, apart from the ambulance driver. Loya’s colleagues who had accompanied him to Nagpur from Mumbai and had insisted that he travel to Nagpur did not visit the family for “one or one and a half months” after his death.

The Caravan story also details the curious role of a Rashtriya Swayamsevak Sangh worker named Ishwar Baheti in informing the family that the body was being taken to Gategaon. He not only contacted Loya’s father but also surprised Loya’s sister by appearing at a hospital where she had gone to pick up her nephew, and dissuaded her from leaving Latur for Nagpur. The family said that it was Baheti who gave them Loya’s mobile phone after a few days. It is not clear why the police allowed him to get involved in the case.

The fact that a post-mortem was conducted means the police wanted to be sure that there was no foul play in the death of the high-profile judge. In such a situation, it seems odd that the police gave Loya’s mobile phone to a complete stranger, given that in case of an investigation later, the phone could have been a crucial evidence. All belongings of the deceased are supposed to be sealed, recorded and given to the family. The family has also alleged that all text messages had been erased from the phone. “Just one or two days before this news, a message had come which said, ‘Sir, stay safe from these people,’” Loya’s sister told Caravan. “That SMS was on the phone. Everything was deleted from it.”

Allegations of bribe

In a chilling revelation that has brought the entire trial in the Sohrabuddin encounter case under a cloud, Loya’s family has alleged that there was immense pressure on the judge to pass orders favourable to Amit Shah. A bribe of Rs 100 crores was offered through the former Bombay Chief Justice Mohit Shah, the family alleged. Loya was also assured that the judgement would not attract attention as another major news announcement would be made on the day of the decision. Loya was asked if he could pass the order before December 30 because “it won’t be under focus at all because at the same time, there was going to be another explosive story which would ensure that people would not take notice of this”, the family claimed. When the verdict eventually came out on December 30, the news of India cricket captain Mahendra Singh Dhoni retiring from Test cricket dominated TV channels. “There was just a ticker at the bottom which said, ‘Amit Shah not guilty. Amit Shah not guilty’,” Loya’s niece told Caravan.

A transfer, a death and a speedy hearing

In 2012, the Supreme Court, after it transferred the criminal case from Gujarat to Mumbai, made it clear that it wanted the same judge to hear the case from start to finish. This direction was clearly flouted, given that in mid-2014, the first judge who was chosen to hear the case, JT Utpat, was transferred to Pune. This transfer order came just 19 days after Utpat had reprimanded Shah for not appearing before the court in the proceedings on June 6. The next hearing was scheduled on June 26. The judge was asked to go to Pune on June 25.

The Outlook reported in 2015 that Mohit Shah had recused himself from an administrative meeting called to appoint the judge for the Sohrabuddin case. Utpat was replaced by Loya, who in October questioned why Shah was not appearing before the court despite being in Mumbai on the date of the hearing.

Following Loya’s death, MB Gosavi was appointed as the new judge within days and he resumed the hearing on December 15. In just 15 days, both sides were heard and judgement discharging Amit Shah was delivered. The CBI, Caravan reported, argued for a mere 15 minutes whereas Shah and others seeking discharge argued for three days.

Two important questions emerge. It is not clear why Chief Justice Mohit Shah transferred judge Utpat without informing the Supreme Court, which had categorically said the same judge had to hear the case from start to finish. Even if the transfer had been at Utpat’s request, Justice Shah should have taken the leave of the Supreme Court. Second, after having stayed away from the meeting that appointed Utpat, it isn’t clear whether Justice Shah signed the transfer order later. If so, having sensed a conflict of interest in appointing the judge, it is not clear why that conflict of interest was not apparent in transferring a sitting judge. Scroll.in sent phone text messages to Justice Shah asking for his comments on the Caravan investigation. The story will be updated if and when he responds.

Justice Shah is no stranger to controversy. In March 2013, the then Chief Justice of India Altamas Kabir wrote to the government stating that the Supreme Court collegium was not inclined to elevating Mohit Shah to the apex court. In 2015, senior lawyer Dushyant Dave wrote to the Chief Justice of India against reconsidering Mohit Shah’s elevation. The judge retired as a chief justice of the Bombay High Court a year later.

Why the Supreme Court should intervene in Loya’s death

As is evident from the sequence of events, Loya’s death cannot be brushed aside as yet another normal death. He was a judge handling a high-profile case involving perhaps the second-most powerful politician in India after Prime Minister Narendra Modi when he was suddenly found dead in a government guest house. Standard procedure was clearly been given a go by in conducting his autopsy. The immediate family of the judge have made serious allegations about the pressure Loya faced to fix the judgement. In fact, Loya’s son Anuj wrote a letter to the family following a visit by Justice Mohit Shah, in which he claims that he sought an inquiry into his father’s death. It is not clear whether Justice Mohit Shah initiated any action following this request.

The case also involves the question of judicial independence. Last week, while hearing a case on allegations of judicial corruption in a medical colleges scam case, the Supreme Court commented that even the judges were not above law. Given the allegations that Loya’s family has made about Mohit Shah, the matter clearly warrants an independent investigation, something civil society activists demanded in Delhi on Wednesday.

Even if the case did not involve Amit Shah, the very fact that doubts have been raised about the death of a serving judge needs serious attention. The matter needs to be investigated to ensure that honest judges who stand up against political interference can fulfil their responsibilities without any fear.