Ordering investigation would mean judges are conspirators, says Maharashtra on Judge Loya case

The Maharashtra government on Monday told the Supreme Court that the only way an investigation could be ordered into the death of Central Bureau of Investigation Judge Brijgopal Harkishan Loya was to prima facie consider the four judges who were with him during his death as conspirators.

Initiating his arguments on behalf of the state government, former Attorney General Mukul Rohatgi said the petitions seeking investigation into the death of Judge Loya were motivated and threw “cavalier and indiscriminate” allegations. “The way the name of a political party leader was brought up during the arguments showed us enough,” Rohatgi said.

At the time of his death on December 1, 2014, Loya was handling the Sohrabuddin Sheikh fake encounter case, in which Bharatiya Janata Party President Amit Shah was an accused. The petitioners have sought an investigation into his death following an investigation by Caravan in November 2017.

Rohatgi said the statements by four judges – SM Modak, VC Barde, Shrikant Kulkarni and Roopesh Rathi – who were with Loya during his death were “unimpeachable evidence” that captured the sequence of events. “There might be some minor contradictions. But the substance of the statements is that the judge died a natural death,” he said.

Rohatgi started by questioning the very maintainability of the petitions, arguing that the matter had hardly anything to do with larger safety of the public. He said the petitioners, which included Congress member Tehseen Poonawala and the Bombay Lawyers’ Association, have not even elaborated properly on their credentials. “A time has come for the court registry to be conscious of the petitions it is admitting,” the lawyer said.

Further, Rohatgi claimed all the petitions were simply based on news reports, which are merely hearsay. Past judgments have made it clear that news reports alone cannot be basis for court public interest litigation. “The petitioners have not lifted a finger to verify anything,” he added.

Rohatgi said the petitioners have deliberately avoided reading the statements of the four judges during their arguments. “They were with him like a shadow,” he said.

On the petitioners’ question on why a post-mortem was ordered on Loya’s body if it was a natural death, Rohatgi argued that the CBI judge was brought dead to the second hospital Meditrina. “If the judge had died in hospital, there would have been no need,” he added.

On the contradictions in the statements over an electrocardiography test done at Dande hospital, the first hospital the judge was taken to, the former attorney general said there has been a lapse of over three years since the death and it was human nature for memory to fade.

Judge Rathi’s statement that the ECG machine was broken could have been expression of something he saw. Invoking his personal experience of undergoing ECG tests, the lawyer said the machine has multiple nodes that are attached to different parts of the body. The machine captures the rhythm from all these place. “The doctor may have struggled in fitting these nodes and this could have given the judge the view that the machine had some problem,” Rohatgi said. An ECG was done at Dande hospital, the report of which was carried to the second hospital. The doctor at Meditrina mentions the ECG. The report is also part of the police record.

Urging the court to read the larger thread of the statements, Rohatgi said everything happened between 4 am and 6.15 am on December 1, 2014, and the statements were clear on the sequence of events.

On the judges staying in the same room in the guest house, Rohatgi said there could be lot of reasons. “They all went together to Nagpur for a wedding,” he claimed.

If there was no reason to question the sequence of events, the petitions have to be thrown out. “No one did anything for three years. There is an ulterior motive here,” said Rohatgi.