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IN THE SUPREME COURT OF INDIA  CIVIL/CRIMINAL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO  19  OF 2018     

TEHSEEN POONAWALLA                   ..Petitioner   

VERSUS  

UNION OF INDIA AND ANR             ..Respondents   

WITH  

WRIT PETITION (CIVIL) NO  20  OF 2018         

BANDHURAJ SAMBHAJI LONE                  ..Petitioner   

VERSUS  

UNION OF INDIA AND ANR             ..Respondents   

REPORTABLE

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WRIT PETITION (CIVIL) NO  73  OF 2018       

JAYSHRI LAXMANRAO PATIL                  ..Petitioner   

VERSUS  

UNION OF INDIA AND ORS             ..Respondents

TRANSFERRED CASE (CRIMINAL) NO  1  OF 2018  

 BOMBAY LAWYERS ASSOCIATION        ..Petitioner   

VERSUS  

THE REGISTRAR GENERAL AND ORS       ..Respondents   

 AND WITH  

TRANSFERRED CASE (CRIMINAL) NO  2  OF 2018        

SURYAKANT @ SURAJ          ..Petitioner   

VERSUS  

STATE OF MAHARASHTRA         ..Respondent  

PART A   

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J U D G M E N T  

Dr D Y CHANDRACHUD, J  

A The Context  

1 In the batch of petitions before this Court, the petitioners seek an inquiry  

into the circumstances of the death of Brijgopal Harikishan Loya. He was a  

judicial officer in the State of Maharashtra in the rank of a district judge and died  

on 1 December 2014.  Articles on his death were published in the issues of  

Caravan magazine dated 20 and 21 November 2017.  The first article was titled

“A family breaks its silence : shocking details emerge in death of judge  

presiding over Sohrabuddin trial”.  

   2 Since the petitions are founded on the two articles published in Caravan,  

it would be necessary to extract them in this judgment:   

   (i) Caravan article dated 20 November 2017:  

“On the morning of 1 December 2014, the family of 48-year-old  

judge Brijgopal Harkishan Loya, who was presiding over the  

Central Bureau of Investigation special court in Mumbai, was  

informed that he had died in Nagpur, where he had travelled for a  

colleague’s daughter’s wedding. Loya had been hearing one of the  

most high-profile cases in the country, involving the allegedly  

staged encounter killing of Sohrabuddin Sheikh in 2005. The prime  

accused in the case was Amit Shah—Gujarat’s minister of state for

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home at the time of Sohrabuddin’s killing, and the Bharatiya Janata  

Party’s national president at the time of Loya’s death. The media  

reported that the judge had died of a heart attack.  

Loya’s family did not speak to the media after his death. But in  

November 2016, Loya’s niece, Nupur Balaprasad Biyani,  

approached me while I was visiting Pune to say she had concerns  

about the circumstances surrounding her uncle’s death. Following  

this, over several meetings between November 2016 and  

November 2017, I spoke to her mother, Anuradha Biyani, who is  

Loya’s sister and a medical doctor in government service; another  

of Loya’s sisters, Sarita Mandhane; and Loya’s father, Harkishan.  

I also tracked down and spoke to government servants in Nagpur  

who witnessed the procedures followed with regard to the judge’s  

body after his death, including the post-mortem.  

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.  

At 11 pm on 30 November 2014, from Nagpur, Loya phoned his  

wife, Sharmila, using his mobile phone. Over around 40 minutes,  

he described to her his busy schedule through the day. Loya was  

in Nagpur to attend the wedding of the daughter of a fellow judge,  

Sapna Joshi. Initially he had not intended to go, but two of his fellow  

judges had insisted that he accompany them. Loya told his wife  

that he had attended the wedding, and later attended a reception.  

He also enquired about his son, Anuj. He said that he was staying  

at Ravi Bhavan, a government guest house for VIPs in Nagpur’s  

Civil Lines locality, along with the judges he had accompanied to  

Nagpur.  

It was the last call that Loya is known to have made, and the last  

conversation that he is known to have had. His family received the  

news of his death early the next morning.  

“His wife in Mumbai, myself in Latur city and my daughters in  

Dhule, Jalgaon and Aurangabad received calls,” early on the  

morning of 1 December 2014,  Harkishan Loya, the judge’s father,  

told me when we first met, in November 2016, in his native village  

of Gategaon, near Latur city. They were informed “that Brij passed  

away in the night, that his post-mortem was over and his body had  

been sent to our ancestral home in Gategaon, in Latur district,” he  

added. “I felt like an earthquake had shattered my life.”

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The family was told that Loya had died of a cardiac arrest. “We  

were told that he had chest pain, and so was taken to Dande  

Hospital, a private hospital in Nagpur, by auto rickshaw, where  

some medication was provided,” Harkishan said. Biyani, Loya’s  

sister, described Dande Hospital as “an obscure place,” and said  

that she “later learnt that the ECG”—the electrocardiography unit  

at the facility—“was not working.” Later, Harkishan said, Loya “was  

shifted to Meditrina hospital”—another private hospital in the city—

“where he was declared dead on arrival.”  

The Sohrabuddin case was the only one that Loya was hearing at  

the time of his death, and was one of the most carefully watched  

cases then underway in the country. In 2012, the Supreme Court  

had ordered that the trial in the case be shifted from Gujarat to  

Maharashtra, stating that it was “convinced that in order to  

preserve the integrity of the trial it is necessary to shift it outside  

the State.” The Supreme Court had also ordered that the trial be  

heard by the same judge from start to finish. But, in violation of this  

order, JT Utpat, the judge who first heard the trial, was transferred  

from the CBI special court in mid 2014, and replaced by Loya.  

On 6 June 2014, Utpat had reprimanded Amit Shah for seeking  

exemption from appearing in court. After Shah failed to appear on  

the next date, 20 June, Utpat fixed a hearing for 26 June. The judge  

was transferred on 25 June. On 31 October  2014, Loya, who had  

allowed Shah the exemption, asked why Shah had failed to appear  

in court despite being in Mumbai on that date. He set the next date  

of hearing for 15 December.  

Loya’s death on 1 December was reported only in a few routine  

news articles the next day, and did not attract significant media  

attention. The Indian Express, while reporting that Loya had “died  

of a heart attack” noted, “Sources close to him said that Loya had  

sound medical history.” The media attention picked up briefly on 3  

December, when MPs of the Trinamool Congress staged a protest  

outside the parliament, where the winter session was under way,  

to demand an inquiry into Loya’s death. The next day,  

Sohrabuddin’s brother, Rubabuddin, wrote a letter to the CBI,  

expressing his shock at Loya’s death.  

Nothing came of the MPs’ protests, or Rubabuddin’s letter. No  

follow-up stories appeared on the circumstances surrounding  

Loya’s death.  

Over numerous conversations with Loya’s family members, I  

pieced together a chilling description of what Loya went through  

while presiding over the Sohrabuddin trial, and of what happened  

following his death. Biyani also gave me copies of a diary she said  

she maintains regularly, which included entries from the days  

preceding and following her brother’s death. In these, she noted

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many aspects of the incident that disturbed her. I also reached out  

to Loya’s wife and son, but they declined to speak, saying that they  

feared for their lives.  

Biyani, who is based in Dhule, told me that she received a call on  

the morning of 1 December 2014 from someone identifying himself  

as a judge named Barde, who told her to travel to Gategaon, some  

30 kilometres from Latur, where Loya’s body was sent. The same  

caller also informed Biyani and other members of the family that a  

post-mortem had been conducted on the body, and that the cause  

of death was a heart attack.  

Loya’s father normally resides in Gategaon, but was in Latur at the  

time, at the house of one of his daughters. He, too, received a  

phone call, telling him his son’s body would be moved to Gategaon.  

“Ishwar Baheti, an RSS worker, had informed father that he would  

arrange for the body to reach Gategaon,” Biyani told me. “Nobody  

knows why, how and when he came to know about the death of  

Brij Loya.”  

Sarita Mandhane, another of Loya’s sisters, who runs a tuition  

centre in Aurangabad and was visiting Latur at the time, told me  

that she received a call from Barde at around 5 am, informing her  

that Loya had died. “He said that Brij has passed away in Nagpur  

and asked us to rush to Nagpur,” she said. She set out to pick up  

her nephew from a hospital in Latur where he had earlier been  

admitted, but “just as we were leaving the hospital, this person,  

Ishwar Baheti, came there. I still don’t know how he came to know  

that we were at Sarda Hospital.” According to Mandhane, Baheti  

said that he had been talking through the night with people in  

Nagpur, and insisted that there was no point in going to Nagpur  

since the body was being sent to Gategaon from there in an  

ambulance. “He took us to his house, saying that he will coordinate  

everything,” she said. (Questions that I sent to Baheti were still  

unanswered at the time this story was published.)  

It was night by the time Biyani reached Gategaon—the other  

sisters were already at the ancestral home by then. The body was  

delivered at around 11.30 pm, after Biyani’s arrival, according to  

an entry in her diary. To the family’s shock, none of Loya’s  

colleagues had accompanied his body on the journey from Nagpur.  

The only person accompanying the body was the ambulance  

driver. “It was shocking,” Biyani said. “The two judges who had  

insisted that he travel to Nagpur for the marriage had not  

accompanied him. Mr Barde, who informed the family of his death  

and his post-mortem, had not accompanied him. This question  

haunts me: why was his body not accompanied by anyone?” One  

of her diary entries reads, “He was a CBI court judge, he was  

supposed to have security and he deserved to be properly  

accompanied.”

PART A   

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Loya’s wife, Sharmila, and his daughter and son, Apurva and Anuj,  

travelled to Gategaon from Mumbai, accompanied by a few judges.  

One of them “was constantly telling Anuj and the others not to  

speak to anybody,” Biyani told me. “Anuj was of course sad and  

scared, but he maintained his poise and kept supporting his  

mother.”  

Biyani recounted that when she saw the body, she felt that  

something was amiss. “There were bloodstains on the neck at the  

back of the shirt,” she told me. She added that his “spectacles were  

below the neck.” Mandhane told me that Loya’s spectacles were  

“stuck under his body.”  

A diary entry by Biyani from the time reads, “There was blood on  

his collar. His belt was twisted in the opposite direction, and the  

pant clip is broken. Even my uncle feels that this is suspicious.”  

Harkishan told me, “There were bloodstains on the clothes.”  

Mandhane said that she, too, saw “blood on the neck.” She said  

that “there was blood and an injury on his head … on the back  

side,” and that “his shirt had blood spots.” Harkishan said, “His shirt  

had blood on it from his left shoulder to his waist.”  

But in the post-mortem report, issued by the Government Medical  

College Hospital in Nagpur, under a category described as  

“Condition of the clothes—whether wet with water, stained with  

blood or soiled with vomit or foecal matter,” a handwritten entry  

reads, simply, “Dry.”  

Biyani found the state of the body suspicious because, as a doctor,  

“I know that blood does not come out during PM”—post-mortem—

“since the heart and lungs don’t function.” She said that she  

demanded a second post-mortem, but that Loya’s gathered friends  

and colleagues “discouraged us, telling us not to complicate the  

issue more.”  

The family was tense and scared, but was forced to carry out  

Loya’s funeral, Harkishan said.  

Legal experts suggest that if Loya’s death was deemed  

suspicious—the fact that a post-mortem was ordered suggests that  

it was—a panchnama should have been prepared, and a medico-

legal case should have been filed. “As per legal procedure, the  

police department is expected to collect and seal all the personal  

belongings of the deceased, list them all in a panchnama and hand  

them over to the family as they are,” Asim Sarode, a senior Pune-

based lawyer, told me. Biyani said the family was not given any  

copy of a panchnama.  

Loya’s mobile phone was returned to the family, but, Biyani said, it  

was returned by Baheti, and not by the police. “We got his mobile

PART A   

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on the third or fourth day,” she said. “I had asked for it immediately.  

It had information about his calls and all that happened. We would  

have known about it if we got it. And the SMSes. Just one or two  

days before this news, a message had come which said, ‘Sir, stay  

safe from these people.’ That SMS was on the phone. Everything  

was deleted from it.”  

Biyani had numerous questions about the events of the night of  

Loya’s death and the following morning. Among them was that of  

how and why Loya had been taken to hospital in an auto rickshaw,  

when the auto stand nearest to Ravi Bhavan is around two  

kilometres away from it. “There is no auto rickshaw stand near Ravi  

Bhavan, and people do not get auto rickshaws near Ravi Bhavan  

even during the day,” Biyani said. “How did the men accompanying  

him manage to get an auto rickshaw at midnight?”  

Other questions, too, remain unanswered. Why was the family not  

informed when Loya was taken to hospital? Why were they not  

informed as soon as he died? Why were they not asked for  

approval of a post-mortem, or informed that one was to be  

performed, before the procedure was carried out? Who  

recommended the post-mortem, and why? What was suspicious  

about Loya’s death to cause a post-mortem to be recommended?  

What medication was administered to him at Dande Hospital? Was  

there not a single vehicle in Ravi Bhavan—which regularly hosts  

VIPs, including ministers, IAS and IPS officers and judges—

available to ferry Loya to hospital? The winter session of the  

Maharashtra state assembly was to begin in Nagpur on 7  

December, and hundreds of officials usually arrive in the city well  

in advance of assembly sessions for the preparations. Who were  

the other VIPs staying in Ravi Bhavan on 30 November and 1  

December? “These all are very valid questions,” Sarode, the  

lawyer, said. “Why was the report of the medication administered  

at Dande hospital not given to the family? Will the answers to these  

questions create problems for someone?”  

Questions such as these “still keep bothering the family, friends  

and relatives,” Biyani said.  

It added to their confusion that the judges who had insisted that  

Loya travel to Nagpur did not visit the family for “one or one and a  

half months” after his death, she said. It was only then that the  

family heard their account of Loya’s last hours. According to Biyani,  

the two men told the family that Loya experienced chest pain at  

around 12.30 am, that they then took him to Dande Hospital in an  

auto rickshaw, and that there, “he climbed the stairs himself and  

some medication was administered. He was taken to Meditrina  

hospital where he was declared dead on arrival.”

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Even after this, many questions were left unanswered. “We did try  

to get the details of the treatment administered in Dande Hospital,  

but the doctors and the staff there simply refused to divulge any  

details,” Biyani said.  

I accessed the report of Loya’s post-mortem, conducted at the  

Government Medical College Hospital in Nagpur. The document  

raises several questions of its own.  

Every page of the post-mortem report is signed by the senior police  

inspector of Sadar police station, Nagpur, and by someone who  

signed with the phrase “maiyatacha chulatbhau”—or the paternal  

cousin brother of the deceased. This latter person is supposed to  

have received the body after the post-mortem examination. “I do  

not have any brother or paternal cousin brother in Nagpur,” Loya’s  

father said. “Who signed on the report is another unanswered  

question.”  

Further, the report states that the corpse was sent from Meditrina  

Hospital to the Government Medical College Hospital by the  

Sitabardi police station, Nagpur, and that it was brought in by a  

police constable named Pankaj, of Sitabardi police station, whose  

badge number is 6238. It notes that the body was brought in at  

10.50 am on 1 December 2014, that the post-mortem began at  

10.55 am, and that it was over at 11.55 am.  

The report also noted that, as per the police, Loya “died on 1/12/14  

at 0615 hours” after experiencing “chest pains at 0400 am.” It  

stated, “He was brought to Dande hospital first and then shifted to  

Meditrina hospital where he was declared to be in dead condition.”  

The time of death cited in the report—6.15 am—appears  

incongruous, since, according to Loya’s family members, they  

began receiving calls about his death from 5 am onwards. Further,  

during my investigation, two sources in Nagpur’s Government  

Medical College and Sitabardi police station told me 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. Apart from the calls that the family  

received, the sources’ accounts also raise serious questions about  

the post-mortem report’s claim that the time of death was 6.15 am.  

The source at the medical college, who was privy to the post-

mortem examination, also told me that he knew that there had been  

instructions from superiors to “cut up the body as if the PM was  

done and stitch it up.”  

The report mentions “coronary artery insufficiency” as the probable  

cause of death. According to the renowned Mumbai-based  

cardiologist Hasmukh Ravat, “Usually old age, family history,

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smoking, high cholesterol, high blood pressure, obesity, diabetes  

are the causes for such coronary artery insufficiency.” Biyani  

pointed out that none of these were applicable to her brother. “Brij  

was 48,” she said. “Our parents are 85 and 80 years old, and are  

healthy with no cardiac history. He was always a teetotaller, played  

table tennis for two hours a day for years, had no diabetes or blood  

pressure.”  

Biyani told me that she found the official medical explanation for  

her brother’s death hard to believe. “I am a doctor myself, and Brij  

used to consult me even for minor complaints such as acidity or  

cough,” she said. “He had no cardiac history and no one from our  

family has it.”  

(ii) Caravan article dated 21 November 2017:  

“Brijgopal Harkishan Loya, the judge presiding over the CBI special  

court in Mumbai, died sometime between the night of 30 November  

and the early morning of 1 December 2014, while on a trip to  

Nagpur. At the time of his death, he was hearing the Sohrabuddin  

case, in which the prime accused was the Bharatiya Janata Party  

president Amit Shah. The media reported at the time that Loya had  

died of a heart attack. But my investigations between November  

2016 and November 2017 raised disturbing questions about the  

circumstances surrounding Loya’s death—including questions  

regarding the condition of his body when it was handed over to his  

family.  

Among those I spoke to was one of Loya’s sisters, Anuradha  

Biyani, a medical doctor based in Dhule, Maharashtra. Biyani  

made an explosive claim to me: Loya, she said, confided to her  

that Mohit Shah, then the chief justice of the Bombay High Court,  

had offered him a bribe of Rs 100 crore in return for a favourable  

judgment. She said Loya had told her this some weeks before he  

died, when the family gathered for Diwali at their ancestral home in  

Gategaon. Loya’s father Harkishan also told me that his son had  

told him he had offers to deliver a favourable judgment in exchange  

for money and a house in Mumbai.  

Brijgopal Harkishan Loya was appointed to the special CBI court in  

June 2014, after his predecessor, JT Utpat, was transferred within  

weeks of reprimanding Amit Shah for seeking an exemption from  

appearing in court. According to a February 2015  

report in Outlook, “During the CBI court’s hearings that Utpat  

presided over for this one year, or even after, court records suggest  

Amit Shah had never turned up even once—including on the final

PART A   

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day of discharge. Shah’s counsel apparently made oral  

submissions for exempting him from personal appearance on  

grounds ranging from him being ‘a diabetic and hence unable to  

move’ to the more blase: ‘he is busy in Delhi.’”  

The Outlook report continued: “On June 6, 2014, Utpat had made  

his displeasure known to Shah’s counsel and, while allowing  

exemption for that day, ordered Shah’s presence on June 20.  But  

he didn’t show up again. According to media reports, Utpat told  

Shah’s counsel, ‘Every time you are seeking exemption without  

giving any reason.’” Utpat, the story noted, “fixed the next hearing  

for June 26. But on 25th, he was transferred to Pune.” This was in  

violation of a September 2012 Supreme Court order, that the  

Sohrabuddin trial “should be conducted from beginning to end by  

the same officer.”  

Loya had at first appeared well disposed towards Shah’s request  

that he be exempted from personally appearing in court.  

As Outlook noted, “Utpat’s successor Loya was indulgent, waiving  

Shah’s personal appearance on each date.” But this apparent  

indulgence may just have been a matter of procedure. According  

to the Outlook story, “significantly, one of his last notings stated  

that Shah was being exempted from personal appearance ‘till the  

framing of charges.’ Loya had clearly not harboured the thought of  

dropping charges against Shah even when he appeared to be  

gentle on him.” According to the lawyer Mihir Desai, who  

represented Sohrabuddin’s brother Rubabuddin—the complainant  

in the case—Loya was keen on scrutinising the entire chargesheet,  

which ran to more than 10,000 pages, and on examining the  

evidence and witnesses carefully. “The case was sensitive and  

important, and it was going to create and decide the reputation of  

Mr Loya as a judge,” Desai said. “But the pressure was certainly  

mounting.”  

Nupur Balaprasad Biyani, a niece of Loya’s who stayed with his  

family in Mumbai while studying in the city, told me about the extent  

of the pressure she witnessed her uncle facing. “When he was  

coming from the court, he was like, ‘bahut tension hai,’” she said.  

“Stress. It’s a very big case. How to deal with it. Everyone is  

involved with it.” Nupur said it was a question of “political values.”  

Desai told me, “The courtroom always used to be extremely tense.  

The defence lawyers used to insist on discharging Amit Shah of all  

the charges, while we were demanding for the transcripts of the  

calls, submitted as evidence by the CBI, to be provided in English.”  

He pointed out that neither Loya nor the complainant understood  

Gujarati, the language on the tapes.  

But the defence lawyers, Desai said, repeatedly brushed aside the  

demands for transcripts in English, and insisted that Shah’s  

discharge petition be heard. Desai added that his junior lawyers  

often noticed unknown, suspicious-looking people inside the

PART A   

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courtroom, whispering and staring at the complainant’s lawyers in  

an intimidating manner.  

Desai recounted that during a hearing on 31 October, Loya asked  

why Shah was absent. His lawyers pointed out that he had been  

exempted from appearance by Loya himself. Loya remarked that  

the exemption applied only when Shah was not in the state. That  

day, he said, Shah was in Mumbai to attend the swearing-in of the  

new BJP-led government in Maharashtra, and was only 1.5  

kilometres away from the court. He instructed Shah’s counsel to  

ensure his appearance when he was in the state, and set the next  

hearing for 15 December.  

Anuradha Biyani told me that Loya confided in her that Mohit Shah,  

who served as the chief justice of the Bombay High Court between  

June 2010 and September 2015, offered Loya a bribe of Rs 100  

crore for a favourable judgment. According to her, Mohit Shah  

“would call him late at night to meet in civil dress and pressure him  

to issue the judgment as soon as possible and to ensure that it is  

a positive judgment.” According to Biyani, “My brother was offered  

a bribe of 100 crore in return for a favourable judgment. Mohit  

Shah, the chief justice, made the offer himself.”  

She added that Mohit Shah told her brother that if “the judgment is  

delivered before 30 December, 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.”  

Loya’s father Harkishan also told me that his son had confided in  

him about bribe offers. “Yes, he was offered money,” Harkishan  

said. “Do you want a house in Mumbai, how much land do you  

want, how much money do you want, he used to tell us this. This  

was an offer.” But, he added, his son refused to succumb to the  

offers. “He told me I am going to turn in my resignation or get a  

transfer,” Harkishan said. “I will move to my village and do farming.”  

I contacted Mohit Shah and Amit Shah for their responses to the  

family’s claims. At the time this story was published, they had not  

responded. The story will be updated if and when they reply.  

After Loya’s death, MB Gosavi was appointed to the Sohrabuddin  

case. Gosavi began hearing the case on 15 December 2014. “He  

heard the defence lawyers argue for three days to discharge Amit  

Shah of all the charges, while the CBI, the prosecuting agency,  

argued for 15 minutes,” Mihir Desai said. “He concluded the  

hearing on 17 December and reserved his order.”  

On 30 December, around one month after Loya’s death, Gosavi  

upheld the defence’s argument that the CBI had political motives  

for implicating the accused. With that, he discharged Amit Shah.

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The same day, news of MS Dhoni’s retirement from test cricket  

dominated television screens across the country. As Biyani  

recounted, “There was just a ticker at the bottom which said, ‘Amit  

Shah not guilty. Amit Shah not guilty.’”  

Mohit Shah visited the grieving family only around two and half  

months after Loya’s death. From Loya’s family, I obtained a copy  

of a letter that they said Anuj, Loya’s son, wrote to his family on the  

day of the then chief justice’s visit. It is dated 18 February 2015—

80 days after Loya’s death. Anuj wrote, “I fear that these politicians  

can harm any person from my family and I am also not powerful  

enough to fight with them.” He also wrote, referring to Mohit Shah,  

“I asked him to set up an enquiry commission for dad’s death. I fear  

that to stop us from doing anything against them, they can harm  

anyone of our family members. There is threat to our lives.”  

Anuj wrote twice in the letter that “if anything happens to me or my  

family, chief justice Mohit Shah and others involved in the  

conspiracy will be responsible.”  

When I met him in November 2016, Loya’s father Harkishan said,  

“I am 85 and I am not scared of death now. I want justice too, but I  

am extremely scared for the life of my daughters and  

grandchildren.” He had tears in his eyes as he spoke, and his gaze  

went often to the garlanded photograph of Loya hanging on the  

wall of the ancestral home.”  

Petitions  

3 Tehseen Poonawalla filed a petition under Article 32 of the Constitution  

before this Court on 11 December 2017. He informs the Court that the  

proceedings have been initiated “bona fide for the welfare and benefit of the  

society as a whole..with no ulterior or mala fide motive”.  He has averred that  

the petition was instituted for the “safety and security of the public and that of  

public servants” who “may not be aware of their legal rights” or possess the  

means to approach this Court.  Besides the above writ petition, this Court has  

before it two other writ petitions under Article 32 on the same issue, one by

PART A   

14    

Jayshri Laxmanrao Patil1 and another by Bandhuraj Sambhaji Lone2. Each of  

these petitioners has made similar averments, stating that the proceedings  

have been initiated for the “welfare of society” without any personal interest.  

Two writ petitions3 were filed in the High Court of Judicature at Bombay :   

Bombay Lawyers’ Association instituted the proceedings on 4 January 2018  

and Suryakant (alias Suraj),  on 27 November 2017.  The relief sought in the  

batch of cases instituted before the Bombay High Court is similar to what is  

sought before this Court.  All the petitions are essentially based on the articles  

which have been published in the Caravan on 20 and 21 November 2017. Other  

media publications, both print and online carried news reports emanating from  

the Caravan articles. Among them are the Indian Express, Quint, Wire and  

Scroll.    

 Procedural directions    

4 On 16 January 2018, a two judge Bench of this Court issued the following  

directions in the Article 32 proceedings:  

“Let the documents be placed on record within seven days and if it  

is considered appropriate copies be furnished to the petitioners.  

Put up before the appropriate Bench.”  

                                                           1 Writ Petition (C)No 73 of 2018  2 Writ Petition (C)No 20 of 2018  3 Public Interest Litigation (Crl) No 2 of 2018 and Public Interest Litigation(Crl) No 1 of 2018

PART A   

15    

In view of the direction to put up the case before the appropriate Bench,  

proceedings were mentioned before the learned Chief Justice on 19 January  

2018 and were directed to be listed on 22 January 2018 “before the appropriate  

Bench as per roster”. On 22 January 2018 the State of Maharashtra filed  

documents in a sealed cover of which copies were made available to counsel  

for the petitioners.  The documents were taken on the record.  Mr Dushyant  

Dave and Ms Indira Jaising, learned senior counsel indicated that they would  

be filing applications for intervention.  This Court permitted them to do so.  This  

Court was informed by counsel for the intervenors that they would be placing  

on record some documents which may have bearing on the case.  Mr Harish  

Salve, learned senior counsel for the State of Maharashtra stated before the  

Court that there would be no objection to supply any other official documents in  

a sealed cover of which a list may be submitted by assisting counsel for the  

parties. This Court was apprised of the pendency of two writ petitions before  

the Bombay High Court, one at the principal seat and the other at the Nagpur  

Bench.  Since the issue raised in the writ petitions before the Bombay High  

Court had the same subject matter, those petitions were transferred to this  

Court, to be heard along with the petitions under Article 32.  Mr Dave, learned  

senior counsel appearing on behalf of the Bombay Lawyers’ Association agreed  

to this course of action. The order of this Court dated 22 January 2018 also  

records the agreement of Ms Jaising to the transfer of the writ petitions from the  

Bombay High Court.  Subsequently, Ms Jaising has clarified that since she is  

appearing for an intervenor and not for the petitioners in any of those writ

PART A   

16    

petitions, her consent should not be recorded. We clarify the order dated 22  

January 2018 to the effect that it was Mr Dave who has consented to the  

transfer of proceedings from the Bombay High Court.  

5 Following the order of transfer, the entire batch of cases together with  

several applications for intervention have been heard.  Hearings in this batch of  

cases have taken place 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.   

   6 We have heard Mr Dushyant Dave, Ms Indira Jaising, Mr V Giri, Mr Pallav  

Shishodia, Mr PV Surendranath, learned senior counsel and Mr Kuldip Rai and  

Mr Prashant Bhushan on behalf of the petitioners and the intervenors. Mr Mukul  

Rohtagi and Mr Harish Salve, learned senior counsel have appeared for the  

respondent State.   

   7 In view of the nature of the issue which has been raised in the  

proceedings, we have permitted learned counsel appearing on behalf of the  

petitioners as well as the intervenors to rely upon such documentary material  

as would enable them to advance their submissions without being bound by  

technicalities of procedure.  In order to analyse the facts as they emerge before  

the Court, it is necessary to construct the sequence of events from the material  

before the Court.   

PART A   

17    

Sequence of events        8 Shri Brijgopal Harkishan Loya (‘Judge Loya’) was presiding over the CBI  

Special Court in Mumbai.  The criminal trial arising out of the encounter killings  

of Sohrabuddin Sheikh was assigned to his court. Among the accused in the  

case was Amit Shah, the “national President of the Bharatiya Janata Party”.  On  

29 November 2014 Judge Loya travelled on an overnight train from Mumbai to  

Nagpur together with two other judicial officers, Shri Shrikant Kulkarni (“Judge  

Kulkarni”) and Shri SM Modak (“Judge Modak”) to attend the wedding in the  

family of another judicial officer, Smt Swapna Joshi who was then a Member  

Secretary of the Maharashtra State Legal Services Authority.  Judge Kulkarni  

was at the material time working as Registrar (Judicial-I) on the Appellate side  

of the Bombay High Court and Judge Modak was the Principal District Judge at  

Alibag.  Judge Loya was a Judge in the City Civil and Sessions Court at  

Mumbai.  On 30 November 2014, Judge Loya and his colleagues attended the  

wedding reception.  According to his colleagues, all of them stayed at Ravi  

Bhavan, a government guest house at Nagpur. This has been a contentious  

issue. In the early hours of 1 December 2014 Judge Loya is stated to have  

complained of chest pain. He was initially taken to Dande hospital, in close  

proximity of Ravi Bhavan. From there he was referred to a cardiac care facility.   

His colleagues are stated to have accompanied him to Meditrina hospital.  

Judge Loya died before he was admitted to Meditrina, since he was  stated  to

PART B   

18    

have been ‘brought dead’. There was an inquest panchnama followed by a  

post-mortem. After the formalities were completed,  the   body   was   taken   to

Gategaon, his village near Latur, nearly 450 kilometres away where the  

cremation took place.

     Issues  

9 The issue before the Court is whether the death of Judge Loya was due  

to natural causes, or as alleged by the petitioners (relying on the contents of  

news items or material which has come before the Court), there are  

circumstances which raise a reasonable suspicion about an unnatural death,  

warranting an inquiry or investigation on the directions of this Court. Moreover,  

should the contents of a news article by itself be made the basis to lodge an  

FIR under Section 154 of the Code of Criminal Procedure 1973.   

B The Discreet Enquiry  

   10 Following the publication of the Caravan articles, the Principal Secretary  

(Special) in the Home Department of the state government directed a discreet  

inquiry by the Commissioner of the State Intelligence Department.  Such an  

inquiry was initiated by Shri Sanjay Barve, Director General and Commissioner  

in the State Intelligence Department.  By a communication dated 23 November

PART B   

19    

2017 addressed to the Chief Justice of the Bombay High Court, he indicated  

that:  

“2. Following judicial officers had accompanied Mr. Loya to  

the hospital on 01/12/2014.

i. Mr Shrikant Kulkarni, Member Secretary  

Maharashtra State Legal Services Authority.  

ii. Mr Modak – Principal District Judge, Pune  

iii. Mr Barde – District Judge, City Civil Court,  

Mumbai   

iv.         Mr R R Rathi – District Judge, Baramati.  

Similarly, Hon’ble Justice Bhushan Gawai and Hon’ble  

Justice SB Shukre has also visited Meditrina Hospital,  

Nagpur after learning about the sad demise of the  

aforesaid judicial officer on 01/12/2014. ”  

The Commissioner sought the permission of the Chief Justice “to record the  

say of the above judicial officers” either in the form of a statement or a letter  

elaborating the sequence of events and the facts known to them in the matter.   

The Registrar General of the High Court, by a letter dated 23 November 2017,  

responded to the request and stated that the Chief Justice had granted the  

permission “to record the say” of the four judicial officers – Judge Shrikant  

Kulkarni, Judge Modak, Judge Barde and Judge RR Rathi.  The report of the  

discreet inquiry dated 28 November 2017 was submitted to the Additional Chief  

Secretary (Home).  The contents of the report are summarised below:  

PART B   

20    

(i) Judge Loya was in Nagpur to attend the wedding in the family of a  

colleague on 30 November 2014 along with his colleagues, Judge  

Kulkarni and Judge Modak, both in the rank of Principal District Judges;  

 (ii) The three judicial officers stayed at Ravi Bhavan;  

 (iii) In the early hours of 1 December 2014 Judge Loya complained of chest  

pain. Judge Shrikant Kulkarni called Judge Barde who was posted at  

Nagpur.  Judge Barde informed Judge RR Rathi, Deputy Registrar of the  

Bench of the High Court at Nagpur and both of them reached Ravi  

Bhavan. In the meantime Judge Kulkarni had also intimated another  

colleague, Judge Waikar about Judge Loya’s ill health between 0400  

hours and 0415 hours;  

  (iv) Judge Loya was taken to Dande Hospital in the vehicle of Judge Barde.   

Judge Kulkarni, Judge Modak and Judge Rathi accompanied them to the  

hospital. After initial examination, he was advised to be taken to a cardiac  

centre;  

   (v) The report in the Caravan article that Judge Loya was taken to Dande  

hospital in an auto rikshaw is incorrect;  

 (vi) The Deputy Registrar Judge RR Rathi in the meantime called his relative,  

Dr Pankaj Harkut, a cardiologist who advised him to bring the patient to

PART B   

21    

Meditrina hospital.  Following this conversation at about 0500 hours, the  

accompanying judges took Judge Loya to Meditrina hospital;  

   (vii) Judge Loya was shifted to Meditrina hospital, where he was admitted by  

Judge Shrikant Kulkarni. He was provided emergency treatment at  

Meditrina hospital but was declared dead at 0615 hours on 1 December  

2014;  

 (viii) The ‘progress notes’ of the doctor at Meditrina hospital indicate that a  

post-mortem was advised. This sets at rest the doubts raised in the  

Caravan article about who had recommended the post-mortem;  

 (ix) Meditrina hospital furnished information of a medico-legal case to  

Sitabardi police station, of the patient being brought dead.  The police  

station at Sitabardi registered AD 00/2014 under Section 174 of the Code  

of Criminal Procedure 1973. This was subsequently transferred to Sadar  

police station where AD 44/2014 was registered at 1600 hours, on 1  

December 2014.  The ADs were registered on the information of one Dr  

Prashant Rathi;  

 (x) Dr Prashant Rathi was informed about Judge Loya’s illness by his relative  

(Rukmesh Jakhotiya) from Aurangabad who requested him to help in  

attending to Judge Loya;  

PART B   

22    

(xi) The Caravan article raised certain doubts about the role of one Ishwar  

Baheti. In that context, the report of the Commissioner contains the  

following explanation:  

“3.8 Mr Ishwar Govindlal Baheti, who  

runs a medical pharmacy at Latur was  

an old friend of Mr Loya for over 35  

years. Ishwar Govindlal Baheti’s eldest  

brother, Dr Hansraj Govindlal Baheti [r/o  

Latur] got a call in the wee hours of 01-

12-2014 informing him about Mr Loya’s  

health. On learning about his friend’s  

condition from his brother [Dr Hansraj],  

Ishwar Govindlal Baheti called up his  

relative in Aurangabad, Mr Rukmesh  

Jakhotiya, who in turn requested Dr  

Prashant Rathi of Nagpur to provide  

assistance and care to Mr Loya. Mr  

Ishwar Govindlal Baheti also called up  

another cousin of Dr Loya, Mr Om  

Bhutada and got in touch with the Latur-

based relatives of Mr Loya. During  

verification, Mr Ishwar Govindlal Baheti  

claimed that he was a worker and well-

PART B   

23    

wisher [“karyakarta & shubh-chintak”] of  

late Mr Vilasraoji Deskhmukh and that  

he was not connected with RSS. Late Mr  

Brijgopal Loya’s father, Shri Harkishan  

Ramchandra Loya, confirmed to the  

undersigned that Ishwar Baheti was a  

close friend of his son and that he was  

‘like a brother’ to him. Mr Loya’s son,  

Anuj, has stated as follows: “my uncle,  

Mr Iswar Baheti had organized a big  

function in memoriy of my father on his  

first death anniversary according to  

panchang on 06-12-2015 at Gategaon,  

Latur where everyone from my family  

including my grandfather Harkishanji  

and my aunty Dr Anuradha were  

present.” My verification revealed that  

Loya family held Mr Ishwar Baheti in  

very high esteem and treated him as a  

member of the family.   

3.8.1 Incidentally, another gentleman by  

name Ishwar-prasad Bajranglal Baheti,  

@ 60 confirmed during the verification

PART B   

24    

that he used to be active in RSS long  

ago and that presently, he runs a shop  

called Radhey Shubhmangal Stores &  

Handicrafts in Latur. He also confirmed  

that he did not know Mr Loya and that he  

had not made any calls in connection  

with Mr Loya’s health to anybody.  

3.8.2 One more person by name –  

Ishwarlal Jawaharlal Baheti lives in  

Nilanga, District Latur where he runs a  

shop called Amrit General Stores.  

During verification, he also confirmed  

that he did not know Mr Loya.   

3.8.3 The above details dispel the  

doubts raised in the Caravan report  

about the role of Mr Ishwar Baheti.”     

 (xii) Judge Barde and Judge Modak informed Judge Loya’s relatives about  

his ill-health and death.  The Principal Secretary to the Chief Justice and  

other Judges at the Nagpur Bench were also informed.  Chief Justice  

Mohit Shah and Justices Bhushan Gavai, Justice SB Shukre and Justice  

PR Bora visited Meditrina hospital around 0700 hours on 1 December  

2014. The Chief Justice directed the officials present there to make  

necessary administrative arrangements;

PART B   

25    

   (xiii) The entire sequence of events was narrated in the statements filed by  

the four judicial officers – Judge Kulkarni, Judge Modak, Judge Barde  

and Judge RR Rathi;  

 (xiv) An inquest was conducted between 1000 hours and 1030 hours on 1  

December 2014. The post-mortem was conducted between 1055 hours  

and 1155 hours on 1 December 2014.  The post-mortem report indicates  

the absence of any bodily injury and notes the cause of death as  

“coronary artery insufficiency”. The report of the Regional Forensic  

Science Laboratory indicates that no traces of poison have been found;  

 (xv) The factual position indicates that Judge Loya suffered a heart attack in  

the early hours of 1 December 2014 and died in consequence.  His body  

was sent to village Gategaon in Latur in an ambulance.  Two judicial  

magistrates from Nagpur, Mr Yogesh Rahangdale and Mr Swayam  

Chopda were deputed by Judge Sonawane, Principal District Judge,  

Nagpur to accompany the body.  The statement in the Caravan article  

that the body was not accompanied by anyone is incorrect;  

 (xvi) Intimation of the death was furnished to the members of the family of  

Judge Loya and to his colleagues who resided at Haji Ali, Mumbai by  

Judge Barde and Judge Modak in the early hours of 1 December 2014;    

PART B   

26    

(xvii) The claim in the Caravan article that sources in the Government Medical  

College and Sitabardi police station had seen the body during the course  

of the night was devoid of substance;  

 (xviii) The reference in the Caravan article to blood-stains on the neck of the  

deceased is contrary to the post-mortem report which stated that there  

were no external injuries on the body;  

 (xix) The members of Judge Loya’s family including his son, wife, father and  

sister have not supported the insinuations in the Caravan article; and  

 (xx) The second article in Caravan dated 21 November 2017 contains  

unfounded insinuations against the former Chief Justice of the Bombay  

High Court Shri Justice Mohit Shah. They have been levelled on the basis  

of an array of hearsay versions. The report concludes by stating that the  

article published in the Caravan “made several unsubstantiated claims  

and is replete with falsehoods”.  

The conclusion of the discreet inquiry is that Judge Loya suffered a heart attack  

in the presence of his colleagues belonging to the judicial fraternity. They had

made all possible efforts to provide medical assistance to save him. Judge Loya  

died as a result of natural causes.  

PART C   

27    

C Submissions:  

I  The petitioners and intervenors  

A  Mr Dushyant Dave  

11 Mr Dushyant Dave, learned senior counsel appearing on behalf of the  

Bombay Lawyers’ Association has premised his submissions on the foundation  

that the cause which he represents raises “serious questions of general  

importance as to (the) independence of judiciary” and   the   protection   of the

subordinate judiciary against threats or attacks.  Mr Dave emphasised the role  

espoused by the petitioners, by adverting to the decision of this Court in Delhi  

Judicial Service Association, Tis Hazari Court, Delhi v State of Gujarat4 in  

which this Court regarded an assault on a judicial officer as something which  

affected judicial authority as well as the administration of justice in the entire  

country.  An impassioned plea has been made that the Court should have  

regard to the background of this case, originating in the judgment in  

Rubabbuddin Sheikh v State of Gujarat5.  While transferring the investigation  

to the CBI, this Court observed:   

“..in order to make sure that justice is not only done, but also is  

seen to be done and considering the involvement of the State  

police authorities and particularly the high officials of the State of  

Gujarat, we are compelled even at this stage to direct the CBI  

Authorities to investigate into the matter.”  

                                                           4 (1991) 4 SCC 406  5 (2010) 2 SCC 200

PART C  

28    

After this court directed a CBI investigation into the killings of Sohrabuddin and  

his wife Kauserbi, a charge-sheet was submitted against a number of accused  

including Amit Shah, the then Minister of State for Home in the State of Gujarat.   

Subsequently, in Narmada Bai v State of Gujarat6 this Court directed a  

separate investigation by the CBI into the killing of Tulsiram Prajapai, which, it  

has been submitted, was a part of the conspiracy to kill Sohrabuddin and  

Kauserbi. In issuing these directions, this Court held thus:  

“It is not in dispute that it is the age-old maxim that justice must not  

only be done but must be seen to be done.  The fact that in the  

case of murder of an associate of Tulsiram Prajapati, senior police  

officials and a senior politician were accused may shake the  

confidence of public in investigation conducted by the State police.  

If the majesty of the rule of law is to be upheld and if it is to be  

ensured that the guilty are punished in accordance with law  

notwithstanding their status and authority which they might have  

enjoyed, it is desirable to entrust the investigation to CBI.”  

Subsequently, in Central Bureau of Investigation v Amitbhai Anil Chandra  

Shah7, while upholding the grant of bail by the Gujarat High Court, this Court  

ordered the transfer of the criminal case outside the State of Gujarat to the State  

of Maharashtra.  The following directions were issued:  

“In another decision in Ravindra Pal Singh v Santosh Kumar  

Jaiswal8, this Court directed for transfer of the case outside the  

State because some of the accused in a case of fake encounter  

were policemen.  The case in hand has far more stronger reasons  

for being transferred outside the State. We, accordingly, direct for  

the transfer of Special Case No.5 of 2010 pending in the Court of  

the Additional Chief Metropolitan Magistrate, CBI, Courtroom No  

2, Mirzapur, Ahmedabad titled CBI v D.G.Vanzara to the Court of  

CBI, Bombay.  The Registrar General of the Gujarat High Court is  

directed to collect the entire record of the case from the Court of  

                                                           6 (2011) 5 SCC 79  7 (2012) 10 SCC 545  8 (2011) 4 SCC 746

PART C  

29    

the Additional Chief Metropolitan Magistrate, CBI, Room No 2,  

Mirzapur, Ahmedabad and to transmit it to the Registry of the  

Bombay High Court from where it would be sent to the CBI Court  

as may be decided by the Administrative Committee of the High  

Court.  The Administrative Committee would assign the case to a  

court where the trial may be concluded judiciously, in accordance  

with law, and without any delay.  The Administrative Committee  

would also ensure that the trial should be conducted from  

beginning to end by the same officer.”  

Mr Dave submitted that an application for discharge under Section 227 of the  

Code of Criminal Procedure was moved by Amit Shah in 2013.  His application  

for exemption from personal appearance was declined by Judge JT Utpat who  

was nominated by the Administrative Committee of the Bombay High Court in  

pursuance of the directions extracted above. Before the proceedings could be  

taken up, it was alleged,  Judge Utpat was transferred on 25 June 2014 by the  

Administrative Committee of the Bombay High Court contrary to the directions  

contained in the judgment of this Court dated 27 September 2012.  Following  

the transfer, Judge Loya was appointed as CBI judge in which assignment he  

continued until his death on 1 December 2014.  Mr Dave urges that the decision  

to transfer Judge Utpat, without seeking appropriate orders of this Court “raises  

serious questions, if not doubts, about the functioning of the Administrative  

Committee of the High Court”. After Judge Loya died on 1 December 2014, a  

new appointment of Judge MB Gosavi was initiated.  The discharge application  

was allowed on 30 December 2014.  Mr Dave has categorically stated before  

the Court that the legality of the order of discharge is not being questioned in  

the present proceedings.  CBI, it has been submitted, did not assail the order  

of discharge though it subsequently filed appeals against the discharge of some

PART C  

30    

police officers. Rubabuddin, the original petitioner also challenged the order of  

discharge but withdrew the application for condonation of delay thus rendering  

the criminal revision application as not maintainable before the Bombay High  

Court.    

12 Based on this background, Mr Dave has submitted that the respondents  

should be directed to file “appropriate affidavits” on oath having regard to the  

fact that the jurisdiction under Article 32 is extraordinary in its nature and scope.   

13 Mr Dave has submitted that the discreet inquiry and report prepared by  

the Commissioner of the State Intelligence Department is an attempt to stall an  

independent investigation. It is, according to him, unusual for the state  

government to order a discreet inquiry on the basis of a report published in a  

news periodical.  Highlighting the sequence of events, it is urged that on 23  

November 2017, the state government directed the Commissioner to conduct  

a discreet verification and on the same day, a letter was addressed to the Chief  

Justice of the Bombay High Court seeking to record the say of the four judicial  

officers who had accompanied Judge Loya to the hospital on 1 December 2014.   

The High Court of Bombay communicated the approval of the Chief Justice on  

the same day.  The judicial officers submitted their statements within a day. The  

report was submitted by the Commissioner on 28 November 2017, within five  

days.  There is, in his submission, a sense of alacrity which is not ordinarily  

found amongst public functionaries.  

PART C  

31    

14 The documents and statements which form part of the report of the  

Commissioner of State Intelligence have been called into question on the basis  

of the following submissions:  

“(i) The death investigation report prepared under Section 174 of  

the Code of Criminal Procedure Code by PSI RK Mundhe of the  

Sitabardi police station, Nagpur city dated 1 December 2014  

records that the body of the deceased was identified by Dr  

Prashant Rathi and does not refer to the presence of any other  

individual, including the judicial officers;  

(ii) The case papers of Meditrina hospital record that the patient  

was brought dead to the hospital and was admitted by Judge  

Shrikant D Kulkarni who disclosed his relationship with the  

deceased as a friend.  The progress notes of the doctor recorded  

that the accompanying person had indicated that the patient had  

suffered chest pain. The bill prepared by Meditrina hospital  

inexplicably contains charges for non-invasive lab, neurosurgery,  

diet consultation and non-medical expenses (the total bill being in  

the amount of Rs 4290);  

(iii) The post-mortem report describes the shirt and jeans worn by  

the deceased. It has been urged that if Judge Loya had suffered a  

heart attack in his sleep, it would not be conceivable that he would  

be sleeping in such clothes. The rigor mortis was found to be  

slightly present either in the upper limbs but not in the lower limbs.  

The submission is that if the cause of death was due to coronary  

artery insufficiency, rigor mortis would have set in fully.  As against  

this, the form under which the dead body was sent for post-mortem  

indicates that rigor mortis was well marked;  

(iv) The report of the Regional Forensic Science Laboratory dated  

5 February 2015 indicates that the viscera did not reveal any trace  

of poison. Analysis commenced on 5 January 2015 and was  

completed on 19 January 2015 in pursuance of AD 44/2014 of PS  

Sadar under Section 174 of the Cr PC.  On 1 December 2014  

Sitabardi police station which was investigating the matter had  

forwarded the body for post-mortem through police constable  

Pankaj. Doubt has been cast on the histo-pathologial report of 5  

February 2015 on the ground that it refers to PS Sadar instead of  

Sitabardi.  On 10 December 2014, Sadar police station addressed  

a letter to the Government Medical hospital, Nagpur to correct the  

name of Judge Loya from Brijmohan Harikishan Loya to Brijgopal  

Harikishan Loya.  It has been urged that if Judge Loya was  

accompanied by his colleagues, his name would not have been  

furnished incorrectly to the hospital;  

PART C  

32    

(v) The record indicates that Sadar police station made a fresh  

accidental death summary almost one and a half years later on 2  

February 2016.  While doing so, the officer of PS Sadar recorded  

as follows:  

“Sir,  PSI SD Warade was day officer on 01/12/2014,  

he got AD no 00/14, 174 CrPC from PC PANKAJ  

b No 6238 [from Sitabardi Police Station].  The  

said AD was that of Shri Brijgopal Harikishan  

Loya, age 48 years, resident of Hajiali  

Government Colony, Building No 11, Mumbai.  

On perusing the case diary, I found that the place  of occurrence is in jurisdiction of Police Station  Sadar, so I registered AD No 44/14, u/s 174 Cr  PC.”       

If AD 44/14 was registered in February 2016, it was urged,  

there is a contradiction in the reference to the above AD in the  

report of the Regional Forensic Science Laboratory dated 5  

February 2015;  

(vi) The statements of the four judicial officers “omitted to say  

much more than what they have stated”.  None of them has  

furnished the suite number at Ravi Bhavan in which Judge  

Loya stayed during the night of 30 November 2014.  The  

register of Ravi Bhavan does not contain any entry of Judge  

Loya having stayed there.  The account of Judge Kulkarni that  

he stayed with Judge Loya and Judge Modak in the same suite  

at Ravi Bhavan has been called into question.  The conduct of  

the judicial officers at Nagpur is criticized on the ground that  

none of them claims to have informed the family after the death  

had occurred. Judge Barde in his statement recorded that he  

and Judge Kulkarni had met the relatives of the deceased after  

a few days at Mumbai, which is submitted to be unnatural;  

(vii) If indeed, the Chief Justice of the Bombay High Court, the  

Registrar General, judges of the High Court and judicial officers  

were present in the hospital, efforts would have been made to  

ensure that the family of Judge Loya travels to Nagpur by the  

next available flight;   

(viii) While in 2015 Judge Loya’s son had addressed a letter for  

the filing of an FIR or for instituting an inquiry into the death,  

and his father and sister had demanded an inquiry in video  

recorded interviews with Caravan and alleged that the Chief  

Justice of the Bombay High Court had made an effort to bribe   

Judge Loya, the subsequent statements of the members of the  

family have been extracted by the State Intelligence  

Department and ought not to be relied upon;

PART C  

33    

(ix) The security of Judge Loya was withdrawn on 24  

November 2014 a week before his death;   

(x) The Commissioner in the State Intelligence Department did  

not meet any person nor did he visit any place to satisfy himself  

of the truthfulness of the statements or facts;   

(xi) The statement of Dr Prashant Rathi was recorded on 22  

November 2017 by the police at Nagpur though the discreet  

inquiry was ordered on 23 November 2017;  

(xii) The press interviews given by Justice Bhushan Gavai and  

Justice SB Shukre of the Bombay High Court to the Indian  

Express on 27 November 2017 contain a repetition of what the  

four district judges had mentioned in their letters.  This raised  

a grave suspicion as to why the interviews were given to the  

press in the first place;  

(xiii)  The Commissioner ought to have examined the  

statements made by the father, sister and son of Judge Loya  

to Caravan;    

(xiv) If Judge Loya had suffered a heart attack, his colleagues  

instead of taking him to Dande hospital ought to have shifted  

him to a reputed cardiac facility some of which were situated  

within a distance of five kilometres from Ravi Bhavan. That the  

judicial officers did not rush their colleague to “the best hospital  

available” raises doubts about the theory that they had  

accompanied Judge Loya; and    

(xv) While on one hand Dr Dande claimed that an ECG was  

taken, Judge Rathi in his statement has recorded that at Dande  

hospital the ECG machine was not working.”  

On the above grounds, it has been submitted, that the report of the  

Commissioner of State Intelligence should be rejected. An independent inquiry  

by a Special Investigating Team has been sought.  He has suggested to the  

Court that this is a fit case for initiating the in-house procedure against two  

judges of the Bombay High Court for granting an interview to the media.    

PART C  

34    

15 Mr Dave has submitted an application that he may be allowed to cross-

examine the four judicial officers whose statements have been relied upon in  

the report submitted by the Commissioner of State Intelligence.  In support of  

his application Mr Dave has relied upon the decision of this Court in K.K.  

Kochunni v State of Madras9  and on the provisions contained in Order IX of  

the SC Rules.  Cross-examination has been sought of the following persons:  

“1 Mr Sanjeev Barve, Director General/Commissioner, State  

Intelligence Department, Maharashtra,  

2 Dr Prashant Bajrang Rathi, Resident of Sai Regency, Ravi  

Nagar, Nagpur,  

3 Mr Niranjan Takle, Reporter of CARAVAN,  

4 Shri Shrikant D Kulkarni, Member Secretary, Maharashtra  

State Legal Service Authority  

5 Shri SM Modak, Principal District Judge, Pune,  

6 Shri Vijay C Barde, Additional Sessions Judge, City Civil and  

Sessions Court, Greater Bombay  

7 Dr Pinak Gangadhar Rao, Dande, Ram Nagar, Nagpur  

8 Shri Anuj Brij Gopal Loya, s/o late Sh. BH Loya  

9 Smt Sharmila Brij Gopal Loya w/o Sh. BH Loya  

10 Shri Hari Kishan Ramchandra Loya, f/o late Sh BH Loya  

11 Dr Anuradha Balaprasad Biyani, sister of late Sh. BH Loya.”  

Mr Dave urged that the State should be directed to file an affidavit controverting  

the allegations contained in the petition.  

                                                           9 (1959) Supp (2) SCR 316

PART C  

35    

B  Ms Indira Jaising:  

16 Ms Jaising has appeared on behalf of an intervenor (Admiral Ramdas).   

Ms Jaising urges that the following circumstances create a suspicion that the  

death of Judge Loya was not due to natural causes:  

(i) The absence of any entry in the register at Ravi Bhavan recording the  

name of Judge Loya as an occupant on 30 November and 1 December  

2014;  

(ii) The improbability of three judicial officers residing in one room of Ravi  

Bhavan;  

 (iii) The mis-spelling of the name of Judge Loya in the records of Dande  

hospital and Meditrina hospital and in the post-mortem report, despite the  

fact that several judicial officers were alleged to be present;  

 (iv) Non-production of the ECG carried out at Dande hospital and the date of  

30 November 2014 contained in the ECG published in the Indian Express  

on 27 November 2017;  

   (v) The statement of judge Rathi that the ECG facility at Dande hospital was  

not working;  

PART C  

36    

(vi) The failure of the police to involve the Executive Magistrate on 1  

December 2014 when an accident report was generated at Sitabardi  

police station at 8.30 am;  

 (vii) Contradictions in the post-mortem report:  

(a) Correction of the name on 10 January  

2015;  

(b) The date of death is shown as 7  

December 2014;  

(c) The over-writing of the date of death  

from 30 November 2014 to 1  

December 2014;  

(d) The cause of death as Coronary Artery  

Insufficiency;  

 (viii) The failure to prepare a panchnama of the personal belongings of the  

deceased which assume significance from the statement of the sister of  

the deceased to Caravan that his cell phone was returned a few days  

later with all messages deleted;   

 (ix) The first accidental death report (AD 00/14) under Section 174 Cr PC  

was recorded at Sitabardi.  The second AD 44/2014 was recorded at  

1600 hours at Sadar police station without the Executive Magistrate  

being informed;  

(x) The failure to produce the case diary of PS Sitabardi or Sadar;  

PART C  

37    

(xi) Failure to follow the procedure prescribed by law under Section 174 Cr  

PC. No inquiry was carried out by the police or by anyone else at the  

inquest under Section 174;  

 (xii) Dr Prashant Rathi was not a ‘relative’ within the meaning of Section 176  

Cr PC;  

 (xiii) Furnishing of information to the Executive Magistrate in respect of the  

accidental death summary on 2 February 2016;  

 (xiv) The grievance of the Judge Loya’s sister to Caravan that the ambulance  

containing the dead body was not accompanied by any judicial officer;  

 (xv) The letter dated 18 February 2017 of Anuj Loya requesting the Chief  

Justice of the Bombay High Court to conduct an inquiry. Ms Jaising has  

urged submissions on the scope of provisions of Section 157 of Cr PC.  

The submission is that the expression “reason to suspect the commission  

of an offence” must receive an appropriate construction since at that  

stage, the question of technical proof of facts alleged in the first  

information report does not arise (State of Haryana v Bhajan Lal)10.  In  

the present case, it was urged that upon the death of Judge Loya, the  

police appeared to have treated it as an accidental death and generated  

AD 00/14 under Section 174 of the Cr PC.  The police were bound to  

                                                           10 (1992) Supp (1) SCC 335

PART C  

38    

follow the procedure prescribed by law.  As held by this Court in Ashok  

Kumar Todi v Kishwar Jahan11 the police may either close the case or  

register an FIR and investigate into the offence.  Neither was an  

investigation conducted under Section 174 Cr PC, nor was an FIR  

recorded; and  

 (xvi) Ms Jaising adverted to the decision in Zahira Habibullah Sheikh v State  

of Gujarat12 in which it was held:  

 “35. This Court has often emphasised that  

in a criminal case the fate of the  

proceedings cannot always be left entirely  

in the hands of the parties, crime being  

public wrong in breach and violation of  

public rights and duties, which affects the  

whole community as a community and is  

harmful to society in general. The concept  

of fair trial entails familiar triangulation of  

interests of the accused, the victim and  

the society and it is the community that  

acts through the State and prosecuting  

agencies. Interest of society is not to be  

treated completely with disdain and as  

persona non grata. The courts have  

always been considered to have an  

overriding duty to maintain public  

confidence in the administration of  

                                                           11 (2011) 3 SCC 758  12 (2006) 3 SCC 374

PART C  

39    

justice—often referred to as the duty to  

vindicate and uphold the “majesty of the  

law”. Due administration of justice has  

always been viewed as a continuous  

process, not confined to determination of  

the particular case, protecting its ability to  

function as a court of law in the future as  

in the case before it. If a criminal court is  

to be an effective instrument in dispensing  

justice, the Presiding Judge must cease to  

be a spectator and a mere recording  

machine by becoming a participant in the  

trial evincing intelligence, active interest  

and elicit all relevant materials necessary  

for reaching the correct conclusion, to find  

out the truth, and administer justice with  

fairness and impartiality both to the  

parties and to the community it serves.  

The courts administering criminal justice  

cannot turn a blind eye to vexatious or  

oppressive conduct that has occurred in  

relation to proceedings, even if a fair trial  

is still possible, except at the risk of  

undermining the fair name and standing of  

the judges as impartial and independent  

adjudicators.”  

PART C  

40    

Reliance was also placed on the following observations contained in the  

decision in Vineet Narain v Union of India13:   

“3. The facts and circumstances of the present case do indicate  

that it is of utmost public importance that this matter is  

examined thoroughly by this Court to ensure that all  

government agencies, entrusted with the duty to discharge  

their functions and obligations in accordance with law, do so,  

bearing in mind constantly the concept of equality enshrined in  

the Constitution and the basic tenet of rule of law: “Be you ever  

so high, the law is above you.” Investigation into every  

accusation made against each and every person on a  

reasonable basis, irrespective of the position and status of that  

person, must be conducted and completed expeditiously. This  

is imperative to retain public confidence in the impartial working  

of the government agencies.”  

In the submission of Ms Jaising, there is a chain of suspicious circumstances  

which warrants a court monitored investigation. These have been summarised  

as follows:  

(a) Inconsistencies in the documents produced by the State of Maharashtra;  

 (b) Statements made by the family which appeared in the Caravan dated 20  

November 2017 and 21 November 2017 and the contradictory  

statements by the two sitting judges of the High Court in the Indian  

Express dated 27 November 2017;  

(c) The statements made by the family of the deceased to Niranjan Takle of  

Caravan that they suspect foul play;  

                                                           13 (1996) 2 SCC 199

PART C  

41    

(d) Contradiction of those statements by the family in documents produced  

by the State of Maharashtra;  

 (e) Non-compliance with the provisions of Section 174 Cr PC;  

 (f) The absence of the family during the post-mortem;  

 (g) The handing over of the body to Dr Prashant Rathi who was a stranger;  

 (h) The misspelling of the name of the deceased in medical documents;  

(i) The absence of the name of Judge Loya in the occupancy register of  

Ravi Bhavan;  

 (j) The transfer of the earlier judge, Judge Utpat a day before the hearing of  

the Sohrabuddin trial in the teeth of the judgment in CBI v Amitbhai Anil  

Chandra Shah14; and  

(k) The fact that the incoming judicial officer after Judge Loya’s death  

discharged one of the accused within a month of his assuming charge.  

C  Mr PV Surendranath:  

17 Mr PV Surendranath, learned senior counsel appearing on behalf of All  

India Lawyers’ Union, an intervenor, submitted that the scope of the present  

hearing is only confined to the death of Judge Loya on 1 December 2014 and  

                                                           14 (2012) 10 SCC 545

PART C  

42    

does not extend to the “Sohrabuddin fake encounter case trial..or its trajectory;  

the transfer of the predecessor officer etc.” Relying on the decision of this Court  

in Vineet Narain (supra), Mr Surendranath submitted that the setting up of a  

Special Investigation Team is warranted, having regard to the nature of the  

crime in the Sohrabuddin case, the status of the accused, circumstances which  

led to the transfer of the proceedings from Gujarat to Maharashtra; the  

discharge of some of the accused after a new judicial officer took charge upon  

the death of Judge Loya and the absence of security for Judge Loya at the  

relevant time.  In his submissions,  the   contradictory  versions  given by close

relatives of the deceased judge is in itself a reason to order a formal  

investigation under the Cr PC by registering an FIR.   

D  Mr Prashant Bhushan:  

18 Mr Prashant Bhushan, learned counsel appearing on   behalf of the  

Centre for Public Interest Litigation has filed an application for intervention. The  

affidavit in support of the application has been sworn and verified by Mr  

Prashant Bhushan.  Reiterating the contents of the application, it has been  

urged that on 11 February 2018 Caravan published a report stating that the  

post-mortem report and histo-pathology report that accompanied the sample of  

the viscera were submitted to Dr RK Sharma, a former Head of Forensic  

Medicine and Toxicology at AIIMS.  Mr Bhushan submitted that the intervenor  

obtained a copy of the histo-pathology report and a copy of the ECG.  The

PART C  

43    

expert opinion of Dr RK Sharma, it has been submitted, indicates that there was  

no evidence of myocardial infarction and though changes were observed in the  

condition of the heart, they are not conclusive to show coronary artery  

insufficiency.  Moreover, emphasis has been placed on the fact that the post-

mortem report indicated congestion in the dura which would indicate that the  

possibility of poisoning cannot be ruled out.  

19 Mr Prashant Bhushan states that the intervenor submitted a copy of the  

ECG and histo-pathology report to Dr Upendra Kaul, a former Professor of  

Cardiology at AIIMS.  Mr Prashant Bhushan addressed an e-mail to Dr Kaul,  

attaching the ECG and histo-pathology report and addressed three questions  

which read as follows:  

“1. Could this person have suffered a serious heart attack,  

one-two hours before this ECG is taken? In other words, is  

this ECG consistent with the ECG of a person who has had  

a serious myocardial one to two hours before this ECG is  

done?  

2. Is the histopathology report of his coronary arteries and  

heart muscle consistent with his death being due to acute  

myocardial infraction or coronary thrombosis?  

3. In addition I would also like to ask you whether a person  

who has died due to myocardial infraction could show  

significant congestion of the dura, liver, spleen, kidney,  

larynx, trachoa and Bronchi, lungs. Is it possible for this  

congestion of all his organs as mentioned in the post  

mortem report, to have taken place because of CPR  

administrated at the time of his death?”  

In reply Dr Kaul has stated thus:  

“1. Most unlikely, the ECG has no evidence of a recent  

myocardial infraction.

PART C  

44    

2. The histo-pathology of heart muscle says it is normal. The  

coronary artery block in LAD could be an innocent  

bystander.

 3. Unlikely to be because of a recent MI but could be because  

of an intensive CPR. “    

Mr Bhushan submitted that he has also spoken to “other reputed cardiologists”  

who have “also given essentially the same opinion”.  Mr Bhushan has submitted  

that the statements by the four judges which were produced in court have not  

been filed on affidavit.  Besides, the statements of the four judicial officers would  

only indicate that Judge Loya complained of chest pain following which he died  

on the way to Meditrina hospital.  According to him, the  eye-witness  accounts  

would be consistent with other causes of death including poisoning.  Virtually at  

the end of his submissions, Mr Bhushan queried this Court as to whether two  

members of the Bench (Justice AM Khanwilkar and Justice DY Chandrachud)  

would like to hear the matter since it may be that as judges of the Bombay High  

Court earlier they may have been acquainted with the four judicial officers and  

the two judges (Justice Gavai and Justice Shukre). In response to his query we  

had inquired of Mr Bhushan as to whether he intended to file an application for  

recusal. No application for recusal has been filed.  Mr Bhushan has stated that  

he leaves the matter there.    

E  Mr Pallav Shishodia:  

20 Mr Pallav Shishodia, learned senior counsel, has urged in his  

submissions that:

PART C  

45    

“These stories have led to a tide of insinuations, questions on  

integrity of our judicial system and war of recriminations. The  

present writ proceedings also appear to have found resonance  

in one eminent press conference as also led to open  

aspersions cast on the some of the judges of this Hon. Court  

hearing the matter. In the circumstances, it is submitted that an  

independent probe cannot be one way traffic in which persons  

making allegations can just “hit and run” without any  

responsibility to damages caused to the reputation, prestige  

and faith in institutions including this Hon’ble Court and  

judiciary as a whole”  

F  Mr V Giri:  

21 Mr V Giri, learned senior counsel has independently urged submissions  

similar to those which have been urged before the court by the other learned  

senior counsel. Much of what has been argued by earlier counsel has been  

reiterated. His assisting counsel urged during the course of his rejoinder that  

the judges who were present with Judge Loya were a party to the conspiracy.   

II State of Maharashtra  

A  Harish Salve:  

22 Mr Harish Salve, learned senior counsel submitted that judicial review is  

a potent weapon to preserve the rule of law.  Though counsel for the petitioners  

asserted that the petitions were instituted to preserve the independence of the  

judiciary, the nature of the allegations and the tenor of the submissions indicate  

that the effort is to launch a frontal attack on judicial independence.  Judges of

PART C  

46    

the district judiciary are in a vulnerable position and it was urged that it is all the  

more necessary in the facts   of this case for this Court to assert its authority to  

protect them from the indiscriminate attacks levelled by counsel appearing on  

behalf of the petitioners.  

B  Mr Mukul Rohtagi:  

23 Mr Mukul Rohtagi, learned senior counsel submitted that though the  

batch of present cases is styled as petitions filed in the public interest, reality is  

far away from the principles enunciated by this Court in State of Uttaranchal v  

Balwant Singh Chaufal15. The petitions as well as the submissions urged in  

support constitute an attempt to scandalise the judiciary and sensationalise the  

issue.   

Mr Mukul Rohatgi submitted that:  

(i)  Judge Loya died on 1 December 2014 at Nagpur and was cremated at  

Gategaon, near Latur in the presence of his family and friends. Three  

years later,  on 20 and 21 November 2017 articles were published in   

Caravan which was followed by a flurry of writ petitions;   

(ii)  Ordinarily, this Court would not entertain a petition only on the basis of  

news reports, because they are hearsay in the nature.  All the petitions  

                                                           15 (2010) 3 SCC 402

PART C  

47    

are based entirely on news reports. The source of knowledge is the  

reports which appeared in the print and electronic media;  

(iii)  Despite the submission in (ii) above, having due regard to the fact that  

the death of a judge in the state judicial service is in issue, the State of  

Maharashtra is not pressing for dismissal on grounds of maintainability  

and urges its submissions on merits to satisfy the conscience of the court;  

(iv)  Two colleagues of Judge Loya from the district judiciary – Judge Kulkarni  

and Judge Modak were with him from 29 November 2014 until he died  

on 1 December 2014. They have furnished a clear and cogent account  

of the events which took place.  Their statements are corroborated by the  

statements of two other judicial officers – Judge Rathi and Judge Barde;  

(v)  An inquiry can be ordered by this court only if it finds sufficient justification  

to reject the eye-witness account of the judges of the district judiciary who  

accompanied Judge Loya from the night of 29 November 2014 (when  

they left Mumbai for Nagpur) until the afternoon of 1 December 2014  

(when the ambulance left for Gategaon). The statements of the judges  

are an abundant reflection of the truth of the matter.  After Judge Loya  

died on 1 December 2014, four judges of the High Court, including the  

Chief Justice, who were informed of the death reached Meditrina hospital  

shortly after the death;  

(vi)  The issue before the court is whether Judge Loya died a natural death or  

whether there are circumstances which indicate that the death was

PART C  

48    

unnatural.  The court is not called upon to evaluate the nature of the care  

or treatment that was received by him at Dande and Meditrina hospitals;  

(vii)  The four statements by Judge Kulkarni, Judge Modak, Judge Barde and  

Judge Rathi are signed by them.  The statement of Judge Modak states  

that Judge Loya was in the same room at Ravi Bhavan. The statements  

of the four judges also cover an important stretch of time from 0400 hours  

to 0630 hours on 1 December 2014. There is no reason to cast doubt or  

suspicion on the statements of the four judges of the district judiciary.   

They have neither an axe to grind nor any motive not to speak the truth.   

Minor contradictions should not result in the statements being discarded  

since they are not of consequence. Minor contradictions are in fact  

natural when events which took place three years earlier are recalled.   

Moreover, this court is not hearing a regular criminal appeal after a full-

fledged trial;  

(viii) The ECG was taken at Dande hospital and was evidently carried to  

Meditrina hospital.  The progress notes of the doctor at Meditrina hospital  

advert to the nature of the ECG and it also forms a part of the record.   

Significantly Judge Barde has deposed to the fact that an ECG was done  

though Judge Rathi has stated that at Dande hospital the nodes of the  

ECG machine were not in order;  

(ix)  After the death had occurred, an inquest was conducted under Section  

174 Cr PC in the mortuary of the Government Medical College at Nagpur.  

PART C  

49    

Thereafter a post-mortem was conducted which indicated that the death  

was due to coronary artery insufficiency. The post-mortem was  

necessitated because Judge Loya was brought dead to Meditrina  

hospital.  A request was made to the forensic science laboratory on 1  

December 2014 for analysis of the viscera. The FSL report and the report  

dated 5 February 2015 specifically notes that no trace of poison was  

found;  

(x)  No credence should be attached to the fact that the name of Judge Loya  

was recorded as Brijmohan   instead of Brijgopal, having due regard to  

the emergency in which he was initially taken to Dande hospital and later  

to Meditrina.  The error was corrected on 10 December 2014;  

(xi)  The death report was initially recorded at Sitabardi police station Nagpur.  

The death report at police station Sadar was recorded later since Ravi  

Bhavan falls within the jurisdiction of Sadar police station. As the record  

indicates, the death report at police station Sadar was on the basis of the  

earlier report lodged at Sitabardi police station;  

(xii)  Finding that there was no warrant for suspicion in regard to the death, a  

request for closure was submitted to the Executive Magistrate in  

February 2016;  

(xiii)  There was nothing untoward in the conduct of a discreet inquiry by the  

Commissioner, SID.  The inquiry was initiated after news reports  

appeared in Caravan on 20 and 21 November 2017.  While conducting

PART C  

50    

such inquiries, a parallel is drawn by the State on the basis of the  

Anticorruption Manual which envisages the procedure to be followed in a  

discreet inquiry. Even independent of the manual, the state government  

was justified in conducting an inquiry having due regard to the fact that  

aspersions were cast by a news periodical in regard to the circumstances  

leading to the death of a judge of the district judiciary;  

(xiv)  On the initiation of the discreet inquiry, an authorisation was obtained  

from the Chief Justice for recording the ‘say’ of the four judicial officers.  

Letters were addressed to them. Judge Kulkarni and Judge Barde were  

posted at Mumbai, Judge Modak was posted at Pune and Judge Rathi  

was at Baramati.  The DGP sent a hard copy of the order of authorisation  

by the Chief Justice to Pune and Baramati.  There is no reason to  

entertain any suspicion because the judges submitted their statements  

immediately upon receipt of the authorisation of the Chief Justice of the  

Bombay High Court;  

(xv)  Significantly while the petitioners and intervenors have doubted whether  

the three judges stayed at Ravi Bhavan, the report in Caravan expressly  

acknowledges that it was at Ravi Bhavan that they had stayed during  

their visit to Nagpur;  

(xvi)  Immediately on the publication of the Caravan report on 11 February  

2018 containing a reference to the opinion purportedly given by Dr  

Sharma, two letters dated 14 February 2018 were addressed to AIIMS

PART C  

51    

with reference to the opinion.  AIIMS in its reply has specifically clarified  

that it is not a practice to give such information.   Dr Sharma has clarified  

that he was grossly misquoted by Caravan and that the conclusions in  

the article are imaginary;  

(xvii) The police inspector at Nagpur addressed a communication to Dr Harish  

Pathak, Head of Department of Forensic Medicine and Toxicology at  

KEM hospital, Mumbai.  The report submitted by Dr Pathak specifically  

mentions that the findings in the post-mortem and histo-pathology reports  

are indicative of acute coronary insufficiency;

(xviii) The manner in which the petitioners have conducted themselves is  

evident from the innuendos attaching to the reliance by Mr Dave on an           

order of the Nagpur bench of the High Court, quashing a criminal  

prosecution against several petitioners of whom the fourth petitioner was  

Mr Devendra Fadnavis, Chief Minister of Maharashtra.  The manner in  

which reliance has been placed on that order before this court would  

indicate that these proceedings are not instituted bona fide but constitute  

a clear attempt to subvert judicial independence and to cast aspersions  

on the independence of the judiciary; and  

(xix) The timing of the publication of the newspaper article was politically  

motivated, since it coincided with the elections to the Gujarat Assembly.   

It is urged that the purpose is to target a political opponent by engaging  

the process of the Court.

PART D  

52    

24 The rival submissions would now be analysed.  

D Analysis  

 25 Mr Dave submitted that notice be issued formally in the writ proceedings  

and the State should be called upon to file affidavits in response to the petitions.  

Counsel submitted that once affidavits are filed it would be open to the  

petitioners to initiate steps for perjury, if a false statement has been made before  

the court.   

   26 While dealing with this submission, it is necessary to record that in  

pursuance of the procedural directions which were issued during the course of  

the first hearing, the state has filed a compilation of documents on the record.  

All contesting parties have appeared and have been heard. The documentary  

material which has been filed by the state has been tendered to the court and  

forms part of the record of judicial proceedings. No affidavit by a police officer  

or authority can improve upon the factual situation emerging from the  

documentary material which is placed before the Court. Once this is the position,  

the state and its officers must necessarily take full responsibility for all that has  

been placed on the record and face any legal consequence which arises from  

the documentary material which is produced in the proceedings before the  

court.  The issue before the court is whether an inquiry into the death of Judge  

Loya is warranted on the directions of this court. This would depend in  

substance on the nature of the inquiry which has been conducted.  The latter is

PART D  

53    

a matter of record. Affidavits cannot improve upon the official record of the state.  

Besides, as we have noted earlier, counsel for the State of Maharashtra  

informed the court that the state government would be willing to produce any  

further documents which form a part of the official record as are required for  

inspection by learned counsel appearing on behalf of the petitioners and  

intervenors. Moreover, Mr Rohatgi urged that the state would willingly accept  

any directions of the Court, in addition to the material which was filed.  Under  

the order of this court learned counsel were permitted to provide a list of such  

documents to counsel for the state, if any additional documents were required  

to be produced.  We have also scrutinised with the assistance of counsel, the  

material which has been produced by counsel for the petitioners and intervenors  

besides the material produced by the state without regard to technicalities of  

procedure. This batch of cases has been heard fully. Hearings have been  

convened over ten dates of judicial sitting. We find no justification at this stage  

to call upon the state to file affidavits since a full and complete opportunity has  

been granted to all the parties and their counsel to address submissions on  

every aspect of the case that they desire to address. The entire record is before  

the court.     

 Section 174 Cr PC  

27 Section 174 of the Code of Criminal Procedure 1973 provides thus:  

“174. Police to enquire and report on suicide, etc.

PART D  

55    

28 Section 174 deals with a situation where information is received by an  

officer in-charge of a police station of a person having committed suicide, or  

having been killed (i) by another; or (ii) by an animal; or (iii) by machinery or (iv)  

by an accident or of having died under circumstances raising a reasonable  

suspicion that some other person has committed an offence. In any of these  

situations, the police officer is required to furnish intimation immediately to the  

nearest Executive Magistrate who is empowered to hold inquests.  He is  

required to proceed to the place where the body is situated and in the presence  

of two witnesses to make an investigation and draw up a report of the apparent  

cause of death. The report would describe the wounds including marks of injury  

which are found on the body and in what manner or by what weapon or  

instrument if any they appear to have been inflicted.  

29 The purpose of holding an inquest is limited.  The inquest report does not  

constitute substantive evidence.  Hence matters relating to how the deceased  

was assaulted or who assaulted him and under what circumstances are beyond  

the scope of the report.  The report of inquest is primarily intended to ascertain  

the nature of the injuries and the apparent cause of death. On the other hand,  

it is the doctor who conducts a post-mortem examination who examines the  

body from a medico-legal perspective.  Hence it is the post-mortem report that

PART D  

56    

is expected to contain the details of the injuries through a scientific  

examination16.  

30 The scope of an inquiry under Section 174 of the Cr PC has been  

considered in several decisions of this court.  In Pedda Narayana v State of  

Andhra Pradesh17, this court explained that the limited scope of such an inquiry  

is to ascertain whether a person has died in suspicious circumstances or an  

unnatural death and, if this was the case, the apparent cause of death. The  

court observed:   

“The proceedings under Section 174 have a very limited scope.  

The object of the proceedings is merely to ascertain whether a  

person has died under suspicious circumstances or an  

unnatural death and if so what is the apparent cause of the  

death. The question regarding the details as to how the  

deceased was assaulted or who assaulted him or under what  

circumstances he was assaulted is foreign to the ambit and  

scope of the proceedings under Section 174. Neither in  

practice nor in law was it necessary for the police to mention  

those details in the inquest report.”  

This principle was reiterated in  Amar Singh v Balwinder Singh (supra) where  

the court observed thus:  

“12...The requirement of the section is that the police officer  

shall record the apparent cause of death describing the  

wounds as may be found on the body and also the weapon or  

instrument by which they appear to have been inflicted and this  

has to be done in the presence of two or more respectable  

inhabitants of the neighbourhood. The section does not  

contemplate that the manner in which the incident took place  

or the names of the accused should be mentioned in the  

                                                           16 Madhu v State of Karnataka (2014) 12 SCC 419; Radha Mohan Singh @ Lal Saheb v State of UP (2006) 2 SCC  450;Mahendra Rai v Mithlesh Rai (1997) 10 SCC 605  Amar Singh v Balwinder Singh (2003) 2 SCC 518; Suresh  Rai v State of Bihar AIR 2000 SC 2207 and Shukla Khader v Nausher Gama (1975) 4 SCC 122   17 (1975) 4 SCC 153

PART D  

57    

inquest report. The basic purpose of holding an inquest is to  

report regarding the apparent cause of death, namely, whether  

it is suicidal, homicidal, accidental or by some machinery  

etc.  (Id at page 641)”  

The view in Pedda Narayana (supra) has been approved by a three judge  

Bench in Khujji @ Surendra Tiwari v State of Madhya Pradesh18. Hence in  

Radha Mohan Singh Alias Lal Saheb v State of U.P.19,  a Bench of three  

learned judges formulated the principle in the following terms:   

“Thus, it is well settled by a catena of decisions of this Court  

that the purpose of holding an inquest is very limited viz. to  

ascertain as to whether a person has committed suicide or has  

been killed by another or by an animal or by machinery or by  

an accident or has died under circumstances raising a  

reasonable suspicion that some other person has committed  

an offence. There is absolutely no requirement in law of  

mentioning the details of the FIR, names of the accused or the  

names of the eyewitnesses or the gist of their statements, nor  

is it required to be signed by any eyewitness.”   

A Bench of two learned judges of this Court in Madhu Alias Madhuranatha v  

State of Karnataka20 has observed that an inquest report is not substantive  

evidence.  

In Manoj Kumar Sharma v State of Chhattisgarh21, a Bench of two learned  

judges held that the purpose of an ‘inquest’ in cases of accidental or suspicious  

                                                           18 (1991) 3 SCC 627  19 (2006) 2 SCC 450  20 (2014) 12 SCC 419  21 (2016) 9 SCC 1

PART D  

58    

deaths under Sections 174 and 175 is distinct from the ‘investigation’ under  

Section 157 of the Code under which if an officer in charge of a police station  

has reason to suspect the commission of an offence which he is empowered to  

investigate, he shall proceed in person to the spot to investigate the facts and  

circumstances of the case.   

Reiterating this principle, a two judge Bench in Bimla Devi v Rajesh Singh22  

explained the scope of the provisions of Section 174 in the following  

observations:  

“The scope of the section is investigation by the police in cases  

of unnatural or suspicious death. However, the scope is very  

limited and aimed at ascertaining the first apparent signs of the  

death. Apart from this, the police officer has to investigate the  

place wherefrom the dead body is recovered, describe  

wounds, fractures, bruises and other marks of injury as may be  

found on the body, stating in what manner or by what weapon  

or instrument, such injuries appear to have been inflicted. From  

the above, it thus becomes clear, that the section aims at  

preserving the first look at the recovered body and it need not  

contain every detail. Mere overwriting in the name of the  

informant would not affect the proceedings.”  

The same position has been laid down in a more recent decision of a two judge  

Bench in Yogesh Singh v Mahabeer Singh23 :  

“41. Further, the evidentiary value of the inquest report prepared  

under Section 174 CrPC has also been long settled through a  

series of judicial pronouncements of this Court. It is well  

established that inquest report is not a substantive piece of  

evidence and can only be looked into for testing the veracity of  

the witnesses of inquest. The object of preparing such report is  

merely to ascertain the apparent cause of death, namely,  

whether it is suicidal, homicidal, accidental or caused by animals  

                                                           22 (2016) 15 SCC 448  23 (2017) 11 SCC 195

PART D  

59    

or machinery, etc. and stating in what manner, or by what  

weapon or instrument, the injuries on the body appear to have  

been inflicted. (See Pedda Narayana v. State of A.P. [Pedda  

Narayana v. State of A.P., (1975) 4 SCC 153 : 1975 SCC (Cri)  

427] , Khujji v. State of M.P. [Khujji v. State of M.P., (1991) 3  

SCC 627 : 1991 SCC (Cri) 916] , Kuldip Singh v. State of  

Punjab [Kuldip Singh v. State of Punjab, 1992 Supp (3) SCC 1 :  

1992 SCC (Cri) 946] , George v. State of  

Kerala [George v. State of Kerala, (1998) 4 SCC 605 : 1998  

SCC (Cri) 1232] , Suresh Rai v. State of Bihar [Suresh  

Rai v. State of Bihar, (2000) 4 SCC 84 : 2000 SCC (Cri)  

764] , Amar Singh v. Balwinder Singh[Amar Singh v. Balwinder  

Singh, (2003) 2 SCC 518 : 2003 SCC (Cri) 641] , Radha Mohan  

Singh v. State of U.P. [Radha Mohan Singh v. State of U.P.,  

(2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661] and Sambhu  

Das v. State of Assam [Sambhu Das v. State of Assam, (2010)  

10 SCC 374 : (2010) 3 SCC (Cri) 1301] .)”  

31 Sub-section (3) of Section 174 requires the police officer to forward the  

body for being examined to the nearest civil surgeon, or as the case may be, to  

a duly qualified medical person appointed by the state government in this  

behalf, in the circumstances set out there. Among the circumstances, clause  

(iv) deals with a situation where there is any doubt regarding the cause of death  

while clause (v) deals with a case where the police officer considers it expedient  

to do so.  Sub-section (4) of Section 174 specifies that the District Magistrate,  

Sub-Divisional Magistrate and any other Executive Magistrate especially  

empowered may hold inquests.  Under Section 175, the police officer  

proceeding under Section 174 is empowered to summon for the purposes of  

the investigation any person who appears to be acquainted with the facts of the  

case.  Under Section 176, where the case is of the nature specified in clauses  

(i) or (ii) of sub-section (3) of Section 174, the nearest Magistrate empowered  

to hold an inquest shall hold an inquiry into the cause of death instead of or in  

addition to the investigation held by the police officer.  In any other case

PART D  

61    

(5) The Judicial Magistrate or the Metropolitan Magistrate or  

Executive Magistrate or police officer holding an inquiry or  

investigation, as the case may be, under sub-section (1A)  

shall, within twenty-four hours of the death of a person, forward  

the body with a view to its being examined to the nearest Civil  

Surgeon or other qualified medical man appointed in this behalf  

by the State Government, unless it is not possible to do so for  

reasons to be recorded in writing.  

Explanation.- In this section, expression" relative" means  

parents, children, brothers, sisters and spouse.”  

Documentary material  

32 In the context of the above statutory provisions, it is necessary to examine  

the material on record. We will proceed to initially analyse the documentary  

material which has been placed before the court by the State of Maharashtra.   

Since the statements of the judicial officers which were recorded during the  

course of the discreet inquiry have been the subject of a considerable amount  

of argument, we will analyse them in a subsequent part of the judgment.   

33 Judge Loya was brought to Meditrina hospital at Nagpur at 6.15 am on 1  

December 2014. Dr NB Gawande of Meditrina addressed a letter to the PSI,  

Sitabardi police station on the following subject:  

“MLC information on hospital in-patient death/brought dead”.  

The communication states that the deceased was “brought with no evidence of  

life to our hospital” with history of retrosternal chest pain.  The patient was  

reported to have come to Nagpur to attend a function. The person who admitted

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62    

the patient is recorded as Shrikant D Kulkarni.  His relationship with the patient  

is described as “friend”.  The probable cause of death is stated to be unknown.   

The name of the consultant is endorsed as Dr Pankaj Harkut.    

34 The Progress notes of the doctor at Meditrina hospital contain a death  

summary.  It records that according to the history given by the accompanying  

persons, the patient had suffered retrosternal chest pain during the course of  

the immediately previous night.  It states that the patient was taken to Dande  

hospital where an ECG was done.  The ECG (it is recorded) reflected a “tall ‘T’”  

in the anterior lead and that the patient collapsed while being shifted.  The death  

summary further states that resuscitation was started immediately after  

reaching the hospital and emergency medication was provided.  The steps  

which were taken to revive the patient are recorded and it has been stated that  

in spite of resuscitative efforts, the patient could not be revived and was  

declared dead at 6.15 am on 1 December 2014. The death summary records  

that a post-mortem was advised for ascertaining the cause of death.  A death  

report was accordingly issued on 1 December 2014 by the duty medical officer  

at Meditrina.  The post-mortem became necessary because, Judge Loya was  

‘brought dead’.  

35 At 8.30 am on 1 December 2014, the police station at Sitabardi (within  

whose jurisdiction Meditrina hospital is located) recorded the statement of Dr  

Prashant B Rathi.  The statement is to the effect that the deceased was related

PART D  

63    

to his uncle.  The deceased had travelled to Nagpur for attending a marriage  

and was residing at Ravi Bhavan, Civil Lines.  When he complained at 0400  

hours of chest pain, he was admitted to Meditrina hospital where he was  

declared as “brought dead” at 0600 hours. On the basis of the statement of Dr  

Prashant Rathi, the death report (marg khabri) was drawn up under Section 174  

of Cr PC bearing AD 00/14. The statement of Dr Rathi is reproduced in the  

death report and titled as “nakal bayan” (this is because the statement is  

reproduced).  The death report contains an endorsement of PSI RK Mundhe,  

the duty officer from 2100 hours on 30 November 2014 to 0900 hours on 1  

December 2014 of the registration of an accidental death report on the basis of  

the statement of Dr Rathi and of having sent police constable Pankaj for taking  

care of the dead body.    

36 Government Medical Hospital, Nagpur received the dead body at 10 am  

on 1 December 2014 for post-mortem.  An inquest panchnama commenced at  

10 am and ended at 10.30 am in the presence of two panchas.  PSI Mundhe  

attached to Sitabardi police station conducted the inquest. The inquest  

panchnama notes the condition of the dead body and does not find any mark  

of injury or assault. The dead body was then sent to the medical officer for  

conducting the post-mortem. There is an advance report dated 1 December  

2014 of Dr NK Tumram of the Department of Forensic Medicine at Government  

Medical College recording that the probable cause of death is “coronary artery  

insufficiency”.  The post-mortem report of 1 December 2014 records that there

PART D  

64    

is no evidence of bodily injury. The dura and brain are found to be congested  

and edemitous.  Lungs are also found to be in a congested condition and  

edemitous.  The heart is found to be congested.  The post-mortem records that  

there is evidence of arthrosclerosis in the left coronary and left anterior  

descending artery with calcification.     It records the narrowing of the artery and  

evidence of hypertrophy of the left ventricle. Evidence is found of plaque in the  

inner wall of the aorta. The report indicates that samples of the stomach, liver,  

kidney and blood were preserved for histo-pathological examination. The  

probable cause of death is recorded as “coronary artery insufficiency”.    

37 Following the post-mortem, the dead body was handed over to Dr  

Prashant Rathi on 1 December 2014 in token of which a receipt was obtained  

by Sitabardi police station.  

38 On the basis of the death report which was recorded by Sitabardi police  

station the police station at Sadar recorded an accidental death report (AD  

44/14) under Section 174 Cr PC. The death report contains a statement that  

PSI Warpade, the day duty officer on 1 December 2014 had received the case  

diary of AD 00/14 from police constable Pankaj and that he had registered AD  

44/14 under Section 174 Cr PC.  The registration of the AD at Sadar police  

station is at 1600 hours on 1 December 2014. Ravi Bhavan falls within the  

jurisdiction of Sadar police station.  

PART D  

65    

39 On 1 December 2014, the duty officer at Sadar police station addressed  

a communication to the Deputy Director of the Forensic Laboratory, Dhantoli,  

Nagpur, and sought a chemical analysis of the samples of the viscera and of a  

bottle of blood which had been preserved. Analysis of the samples commenced  

on 5 January 2015 and ended on 19 January 2015.  On 5 February 2015 the  

Assistant Chemical Analyser in the Regional Forensic Science Laboratory  

submitted his report stating that:  

“general and specific : chemical testing does not reveal any  

poison in exhibit nos.(1), (2) and (3).”    

Exhibits (1), (2) and (3) are respectively samples of the stomach, liver, spleen  

and kidney and blood.  

40 In the records of Meditrina hospital referred to earlier, the name of the  

deceased was referred to as Brijmohan H Loya.  It appears from the post-

mortem report that the name of the deceased was initially recorded as  

Brijmohan Harikishan Loya. The records of Meditrina hospital as well as the  

post-mortem contain a reference to the address of the deceased being the  

official quarters at Haji Ali Government Colony, Building no.11, Mumbai. This,  

it is undisputed, is where Judge Loya resided.  There is hence absolutely no  

doubt about the identity of the body on which post-mortem was performed. On  

10 December 2014 the PSI at Sadar police station addressed a letter to  

Government Medical Hospital seeking a correction in the name of the deceased

PART D  

66    

as Brijgopal Harikishan Loya. The correction was endorsed on 10 December  

2014 on the post-mortem report.  

41 In February 2016, the Sadar police station addressed a communication  

to the Special Executive Magistrate making a reference to the death summary  

bearing No.07/16 dated 2 February 2016. The summary records that on 1  

December 2014, the police station at Sadar received AD004/14 from the  

Sitabardi police station. On perusing the case diary, it was noticed that the place  

of occurrence was within the jurisdiction of Sadar police station. Hence AD  

44/14 was recorded under Section 174 Cr PC.  An inquest panchnama was  

prepared by PSI Mundhe in the presence of two panch witnesses.  The post-

mortem was conducted at the Medical College Hospital by Dr NK Tumram of  

the Forensic Medicine Department.  After the post-mortem concluded, the body  

was handed over to Dr Prashant Rathi, a relative of the deceased. During the  

course of inquiry, it has been noted from the post-mortem report that the cause  

of death was coronary artery insufficiency.  On discussing the matter with Dr  

Tumram, it was ascertained that the death was due to a heart attack and there  

was nothing suspicious about the death.  During the course of the inquiry the  

police station at Gategaon, District Latur was contacted when it was intimated  

that the relatives of the deceased reside in Mumbai.  Dr Prashant Rathi had  

intimated, that the deceased had visited Nagpur to attend a marriage; on the  

date of the incident he developed pain in the chest at 0400 hours and was  

admitted to Meditrina hospital where he was declared dead.  The summary

PART D  

67    

records that Judge Loya died due to a heart attack. No complaint has been  

lodged by his relatives at the local police station or at PS Sadar of any suspicion  

in regard to the cause of death and the medical officer has recorded the cause  

of death as a heart attack in the PM report and there was no evidence of assault.  

The summary was accordingly submitted to the Special Executive Magistrate,  

Sadar division, Nagpur.  

Statements of four judicial officers  

42 Now it is in this background, that it would be necessary to advert to the  

statements of the judicial officers which were recorded during the course of the  

discreet inquiry in November 2017. A discreet inquiry was ordered on 23  

November 2017 by the Home department of the state government following the  

reports which were published in Caravan on 20 and 21 November 2017.  Mr  

Rohtagi has apprised the court that in ordering the discreet inquiry, the state  

took recourse to the provisions of its Vigilance Manual.  The Manual of  

Instructions provides for the procedure which is to be followed in conducting  

discreet inquiries.  In the present case, following the news reports published in  

Caravan, the death being of a judge from the state judicial service, a discreet  

inquiry was ordered particularly in the context of the innuendos contained in the  

news reports.  Quite apart from the Manual, the state government is not  

prohibited in law from holding such an enquiry in the exercise of its executive  

power.  

PART D  

68    

43 The Commissioner of the State Intelligence Department sought the  

permission of the Chief Justice of the Bombay High Court “to record the say” of  

Judge Shrikant Kulkarni (Member Secretary, Maharasthra State Legal Service  

Authority), Judge Modak (Principal District Judge, Pune), Judge Barde (District  

Judge, City Civil Court, Mumbai) and Judge RR Rathi (District Judge,  

Baramati). By a communication of 23 November 2017, the Registrar General  

stated that the Chief Justice had granted permission to do so.  Following the  

receipt of permission, the Commissioner, SID wrote to the four judicial officers.  

They tendered - signed statements.   

44 The statement of Judge Kulkarni dated 24 November 2017 is extracted  

below:  

“Reference: Your letter No-COI/PA/Loya/DE/2017-165.  

Sir,  

With reference to your letter, I hereby submit brief  

sequence/say about the unfortunate death of Shri BH Loya at  

Nagpur.  

In the month of November – December 2014, I was working as  

Registrar(Judicial -I), Appellate Side, High Court, Bombay. Mrs  

Swapna Joshi was the Member Secretary, Maharashtra State  

Legal Services Authority at that time and she was my Principal  

Judge while working in the City Civil Court, Mumbai. She had  

invited me, my colleague Shri SM Modak and Shri BH Loya  

who were working in the City Civil Court, Mumbai for the  

wedding of her son at Nagpur.   

Accordingly, I along with Shri SM Modak and Shri BH Loya left  

Mumbai by train in night of 29th November, 2014 and reached  

Nagpur in the morning of 30th November 2014. We went to Ravi  

Bhavan Government Guest House where V.I.P. Suit was  

booked.  

PART D  

69    

On the night of 30th November, 2014 we attended reception  

arranged by Mrs Swapna Joshi on account of wedding of her  

son and returned to Ravi Bhavan Government Guest House at  

about 11.30 p.m. to 12.00 midnight.  

Early morning of 1st December 2014 Shri Loya started  

complaining of chest pain. I called my another brother Judge  

from Nagpur Shri Barde by calling on his cell phone and asked  

him to rush immediately to Ravi Bhavan Government Guest  

House with his car due to bad health of Shri Loya. Accordingly,  

Shri Barde with another colleague Shri Rathi rushed to Ravi  

Bhavan Government Guest House. It was about 4.00 to 4.15  

am. Shri Waiker, Judge was also informed about Shri Loya’s  

bad health.  

We took Shri Loya to the nearby Dande Hospital by using car  

of Shri Barde where emergency treatment was given to Shri  

Loya. Shri Waiker, Judge also joined there by his car. However  

chest pains continued. As per Doctor’s advice Shri Loya was  

required to be shifted to Cardiac Hospital. Accordingly, Shri  

Loya was immediately taken to Meditrina Hospital, Nagpur. We  

accompanied with him in the car. Shri Rathi who was working  

as Deputy Registrar called his relative Doctor to rush at  

Meditrina Hospital. We rushed to Meditrina Hospital, however  

on the way Shri Loya collapsed. We put him on the stretcher  

and took to the I.C.U where Doctor started immediate  

treatment. After giving treatment no response from Shri Loya  

was seen. Unfortunately, Shri Loya succumbed to death due  

to massive heart attack on early morning of 1st December  

2014.  

We communicated this unfortunate incident to the Hon’ble Shri  

Justice PR Bora as well as Hon’ble Shri Justice BR Gavai. We  

also informed the said unfortunate incident to Shri Sham Joshi,  

Principal Secretary to the Hon’ble The Chief Justice whose  

sitting was at Nagpur that time. Hon’ble Shri B R Gavai,  

Hon’ble Shri Justice SB Shukre and Hon’ble Shri Justice PR  

Bora immediately rushed to the Meditrina Hospital within half  

an hour. Thereafter Hon’ble Shri Mohit Shah, The Chief Justice  

also arrived there. Thereafter, the dead body of Shri Loya was  

taken to the Government Medical College and Hospital for  

post-mortem examination.   

After post-mortem examination dead body was sent to native  

place of Shri Loya in one ambulance. Two Magistrates from  

Nagpur were also sent in another car to accompany dead  

body.”  

PART D  

70    

The statement of Judge SM Modak, Principal District Judge, Pune dated 24  

November 2017 reads as follows:  

“Sub : Discreet Verification in the death of Judge Shri Loya.  

Ref : Your letter OW No. COI/PA/LOYA/DE/2017-165 Dated  

23/11/2017.  

Respected Sir,  

I received your above mentioned letter in the morning through  

the hands of your representative. It accompanies permission  

letter issued by Hon’ble Registrar General dated 23/11/2017.  

It is not accompanied by any complaint/application/any  

document. You have requested me to give my say in the  

captioned matter. There is gap of almost three years after the  

death of our brother Judge Loya. As per my memory I am  

giving sequence of events as follows :  

a. I accompanied Judge Shri Shrikant Kulkarni and Judge Shri  

Loya on 29/11/2014 for attending the marriage of son of  

Ladyship Smt Joshi (then Secretary MHALSA).  

b. We left by train at the night. Ladyship Smt Joshi, her family  

members and few other judges were also travelled in the same  

train but in different compartments.   

c. We reached Nagpur in the morning of 30/11/2014. Journey  

was comfortable. It was through AC coach.  

d. From station we went to Ravi Bhavan  

e. After bath,  myself accompanied Judge Shri Kulkarni to visit the  

quarters of Lordship Shri Shukre, Lordship Shri Borha. Judge  

Shri Kulkarni intended to give invitation of his daughter’s  

marriage to them. Even Judge Shri Loya accompanied us.   

f. Even we have visited the house of Judge Shri Barde quarter at  

Ravi Nagar.  

g. After that and after some marketing, we returned Ravi Bhavan.  

We have to attend reception in the evening.  

h. We attended the reception. There number of judges and even  

Few lordship have attended the function.  

i. After dinner, we returned Ravi Bhavan almost at about 11.30  

pm to 12 midnight.   

j. During our way back, we stopped at one square. I remember  

Judge Mahajan was also with us but in different car. He offered  

us famous pan. He left to his house as he had to catch night  

train for Mumbai and we returned to Ravi Bhavan.  

k. We slept in one room. At about early morning probable at 4 am  

Judge Loya woke up. He was not feeling comfort. Myself and  

Judge Kulkarni called local judges probably Judge Barde and  

Judge Rathi.  

l. I do not exactly remember both of them or single.  

PART D  

71    

m. In a car we took Judge Loya to Dande Hospital. After initial  

check up, doctor advised him to shift him to another hospital  

n. We shifted Judge Loya to another hospital. I do not remember  

the name. We shifted him in a car. I also remember another  

local Judge Shri Waiker had also come in his car.   

o. At the hospital doctors have declared him dead.  

p. We have informed this fact to our judges at Hajiali colony.  

q. We all were in shock. I do not exactly remember who informed  

this fact to family members of Loya.   

r. Few Lordship have also attended the hospital. Further events  

took place as per their diretcions.  

s. Dead body was taken to Government Hospital for post mortem.  

t. Then PDJ Shri Sonavane (now Lordship) had also come to  

hospital and also for post mortem.   

u. Then PDJ Shri Sonavane deputed two local judges along with  

dead body.  

v. We all were in deep shock. Myself and Judge Kulkarni met the  

relatives of Judge Loya at Hajiali colony after few days.  

w. During that period I was posted as P.D.J. at Alibag, Raigad.   

I have narrated the events as per my memory. You have  

instructed yesterday on phone to give events today. I am  

handing over this letter through hands of your representatives  

Shri Patil.”  

The statement of Judge VC Barde, dated 24 November, 2017 reads as follows:  

“SUB: Your letter dt. 23.11.2017 for my Say, regarding  

occurrence dt. 1.11.2014 at Nagpur of sad demise of District  

Judge Shri BH Loya Sir,  

Dear Sir,  

With reference to the subject mentioned as above, I state that  

on the above date, at about 4 A.M. I received a call on my  

mobile No. 9423406827 from Shri S.D. Kulkarni Sir, Registrar  

of Hon’ble Bombay High Court that I with my Car and Shri R.R.  

Rathi, Senior Civil Judge, should come to Ravi Bhavan Govt.  

Guest House, where he, Shri Modak Sir District Judge, and late  

Shri Loya Sir were staying having come from Mumbai. He said  

that Shri Loya Sir was having chest pains. Accordingly, I called  

Shri Rathi and proceeded to Ravi Bhavan.   

Immediately, we the above 5 persons in the Car proceeded  

towards Dande Hospital. In the meanwhile, Shri S.D. Kulkarni  

Sir also called Shri Waiker Sir, now retired District Judge. The  

medical officer on duty there checked up Shri Loya by ECG,  

Blood Pressure etc. as per their procedure. Judge Shri Rathi  

has his brother in relation by name Dr Shri Pankaj Harkut, M.D.

PART D  

72    

and D.M., as a Doctor at Meditrina Multispecialty Hospital,  

whom he could contract in the meanwhile, who said that we  

should come to Meditrina Hospital, where he would also come  

from his residence.  

Thereafter, we proceeded to Meditrina Hospital in 2 Cars.  

However, Shri Loya who himself sat in the Car, after some  

distance started Snoring-like in sleep, to whom  Shri Kulkarni  

Sir stated to awake. When I took the Car in the porch of  

Meditrina Hospital, Shri Loya Sir did not awake and was rushed  

on a stretcher to the ICU of the said Hospital. He was  

immediately taken in and the doctors started treatment. We  

stayed outside ICU. However, after sometime the Doctor came  

out, and told that when Shri Loya Sir was taken in ICU, his  

pulses were not working, and that they were trying out their  

best to make him revive.   

While Shri Loya Sir was in ICU, I tried to contact the friends of  

Shri Loya Sir at Haji Ali, Govt Colony, where he was residing.  

Shri O.K. Bhutada, Senior Civil Judge, could be contacted,  

whom the entire occurrence was told. Shri Modak Sir and Shri  

Kulkarni Sir also contacted the other friends of Shri Loya Sir at  

Haji Ali, known to them and told the occurrence to them. Local  

judges were also called at Hospital. The Hon’ble High Court  

Judges, and Judges from District Judiciary, and some Court  

Staff approached to the Hospital, and some were consulting  

the Doctor. Judge Shri Bhutada from Mumbai, provided my  

mobile number to the near relatives of Shri Loya Sir, and by  

making call to me, told that I should inform the happenings at  

Hospital to such near relatives, if they contact me. Some  

relatives contacted me, to whom I told the happenings, and that  

they may come to Nagpur.   

After about 6.a.m. the Doctor came out of ICU and declared  

that Shri Loya Sir is no more. Thereafter, the Judges gathered  

there saw his body. The police also approached the Hospital.  

Thereafter, at or about 10 p.m. the dead body was taken for  

post-mortem at Govt. Medical College by police. I in my car  

went there, where the Judges of District Judiciary also  

gathered. After the post mortem was over, after 11 a.m. the  

dead body was sent in an ambulance to the native place of Shri  

Loya.  

Shri Loya, being my Senior Colleague and residing in  

neighbouring building No. 11 of Haji Ali. Govt. Colony and I in  

building No. 13 in the same colony during my posting for 2011  

to 2014, I was well acquainted with him, and performed by  

moral duty to take him in the hospital with other learned officers  

to provided all the possible help.”

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The statement of Judge RR Rathi dated 23 November 2017 reads as follows:  

“Upon request of Shri Sanjay Barve, Commissioner SID,  

Mumbai and as Hon’ble High Court of Bombay granted  

permission to give say, I am stating the fact know to me  

regarding Judge Shri Brijgopal Harikishnan Loya.   

Myself R R Rathi Adhoc District Judge, Baramati on dated  

1.12.2014 was working as 5the Civil Judge Shri V C Barde  

phoned me on mobile and asked for my help by stating that  

Judge Loya is not feeling well and is at Ravi Bhavan, so we  

should help him. Hearing the same and in order to help, being  

local Judge, I was immediately ready. Mr Barde came to my  

quarter in his car and we then immediately went to Ravi  

Bhavan.  

At Ravi Bhavan Judge Shri Modak and Shri Shrikant Kulkarni  

were also present. At that time Judge Loya was attending  

natures call. Thereafter he came down and told that he is  

having heart burn and having ache in his heart and requested  

for help. Thereafter we all present there went in the car and Mr  

Barde. At that time some of them also called for help of Judge  

Waiker. He also followed us. Then we went to the nearest  

hospital at Ravi Nagar i.e. Dr Dande Hospital that hospital was  

on 1st Floor and so we all climbed stairs and were there. One  

assistant doctor was present there. Mr Loya complained about  

severe chest pain. His fact was sweating and he was  

continuously telling about severe chest pain and heart burn. At  

that time the doctor tried to do his ECG but the  nodes of ECG  

machine were broken. Doctor tried and wasted sometime but  

machine was not working. I think he gave 2 injections to Mr  

Loya. I asked the doctor he said it of antacid and painkiller. Mr  

Loya was again complaining chest pain. I called my brother  

(cousin) Dr Pankaj Harkut, who is a cardiologist but his phone  

ringed but he did not picked my phone. After sometime he  

called me and I told him all these things. He immediately told  

me to brought him to Meditrina Hospital at Ramdaspeth  

Nagpur. It was 5.00 am, approx. that time. Thereafter I sitted in  

car of Judge Waiker. Mr Loya sitted in the car of Barde and  

Shri Kulkarni and Modak accompanied the. Thereafter we  

proceeded to Meditrina Hospital. At Meditrina Hospital when  

we reached that time Mr Loya was unconscious and was  

unable to speak. Then he was taken inside hospital for  

treatment. Thereafter Dr Pankaj Harkut also came there. Mr  

Loya was treated at that hospital. After sometime we came to  

know that Mr Loya suffered heart attack. Thereafter we came  

to know that he died. It was very unfortunate that Mr Loya died  

and I was very upset to know this. Hence this say.”

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The submissions analysed  

45 A frontal assault has been launched on the statements of the four judicial  

officers by learned counsel appearing on behalf of the petitioners on the ground  

that the procedure of obtaining the permission of the Chief Justice was  

completed within one day and the statements were submitted by the four judges  

on the next day.  Two of the judges (Judge Shrikant Kulkarni and Judge Barde)  

were based in Mumbai while the other two (Judge Modak and Judge Rathi)  

were based at Pune and Baramati.   

46 We are unable to subscribe to this line of submissions. The Chief Justice  

of the Bombay High Court granted permission to the Commissioner of the State  

Intelligence Department to record the say of the four judicial officers. The matter  

was of importance. A discreet inquiry had been ordered by the state  

government in view of the articles which were published in Caravan regarding  

the death of a judicial officer.  Three of the statements specifically refer to the  

letter to the Commissioner while the fourth refers to the request which has been  

made by the Commissioner and the permission which has been granted by the  

High Court. There was no reason for the four judicial officers to procrastinate or  

delay the submission of their statements.  There is no basis whatsoever to make  

any imputation against the four officers of the state judiciary. They were present  

with Judge Loya at Nagpur to attend a wedding in the family of a colleague.  

Each of them responded, as judges of the district judiciary, to the permission

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which was granted by the Chief Justice of the High Court to the Commissioner,  

SID to record their say.  The judges have spoken about the facts of the case as  

they could recall, with details.  We have extracted each of the four statements  

fully, as they stand. Each of the judges has spoken in detail of the facts and  

events which were within their personal knowledge. The statements contain  

matters of detail which would be known to those who were present with Judge  

Loya.  They have a ring of truth. They had nothing to conceal nor an axe to  

grind. Three of the statements are dated 24 November 2017 while the fourth  

submitted by Judge Rathi is dated 23 November 2017 and contains an  

endorsement of receipt by the Commissioner on 24 November 2017.  The fact  

that two of the judges were respectively at Pune and Baramati is absolutely no  

ground to cast doubt. The statements were submitted with dispatch. Reading  

them it is clear that they have been submitted without pre-meditation.  The four  

judicial officers acted responsibly.  There was no reason for them either to  

hasten or to cause a delay in submitting their versions of what they knew.  Each  

of the four judges has acted with a sense of duty.  This is how they would be  

expected to conduct themselves, in answering to a call of duty.   

47 One of the submissions which has been urged by Mr Dave to cast doubt  

on the statements is that an article was published in the Indian Express in which  

the statements of two judges of the High Court (Justice Bhushan Gavai and  

Justice SB Shukre) were published.  Mr Dave submitted that the statements of  

the judicial officers cannot be regarded as independent, in view of the fact that

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two judges of the High Court had taken the same view as elicited in the Indian  

Express article, that the death of Judge Loya was due to natural causes.  Mr  

Dave submitted that judicial officers in the district judiciary could not be  

expected to take a plea at variance with what was stated by the two judges of  

the High Court. He urged that disciplinary action should be initiated against the  

two High Court judges. This submission is preposterous. It constitutes an  

undisguised attempt to malign four senior judicial officers and the judges of the  

High Court.  What the submission glosses over is that the article in the Indian  

Express was published on 27 November 2017 and that was when the  

statements attributed to Justice Gavai and Justice Shukre were published. The  

statements of the four judicial officers are dated on 23 and 24 November 2017  

and were in fact received by the Commissioner of the SID on 24 November  

2017 much before the Indian Express article was published. We are mentioning  

this aspect because the line of submissions in this case indicates an unfortunate  

attempt to use every possible ploy to cast aspersions on members of the district  

and higher judiciary. That senior counsel chose with all seriousness to make  

those submissions without a sense of responsibility, and without verifying the  

basic facts reveals a disturbing state of affairs.  We must express our  

disapproval in no uncertain terms.  

48 Learned counsel appearing on behalf of the   petitioners as well as the  

intervenors have sought to question the course of action which was followed by  

the judicial officers after Judge Loya complained of chest pain in the early hours

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of 1 December 2014.  Why, they have queried, was he taken to Dande hospital  

initially and not to a specialised cardiac care facility when it was available within  

a radius of 5 kilometres of Ravi Bhavan. This line of argument is without merit.   

Judge Loya, as the statements of Judge Kulkarni and Judge SM Modak  

indicate, complained of chest pain at about 0400 hours on 1 December 2014.  

His colleagues who were with him took a decision in good faith to take him to  

Dande hospital which is in close proximity to Ravi bhavan. The issue in the  

present case is whether Judge Loya died a natural or unnatural death. To  

attribute motives to his colleagues who were with him and took immediate steps  

to shift him to a hospital nearby is absurd, if not motivated. In hindsight, it is  

easy to criticise actions which are taken by human beings when faced with an  

emergency. It is easy for an observer sitting in an arm-chair at a distant point in  

time to assert that wisdom lay in an alternate course of action. That can never  

be the test for judging human behaviour.  The conduct of the colleagues of  

Judge Loya in attending to him is not in question. They did their best under the  

circumstances, acting entirely in good faith.  At Dande hospital, the medical  

advise was that the condition of Judge Loya required him to be shifted to a  

specialised cardiac hospital. Judge Rathi who was attached to the Nagpur  

Bench of the High Court at the material time was with Judge Kulkarni and Judge  

Modak when he was shifted to the hospital, as was Judge Waikar.  Dr Pankaj  

Harkut who was a relative of Judge Rathi was a cardiac consultant attached to  

the Meditrina hospital.  Judge Rathi contacted him on phone and it was at his  

suggestion that the judges took a decision to shift Judge Loya to Meditrina.  To

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find fault with the judges for this course of action is unacceptable. But there is  

another and more serious aspect of the line of submissions which has been  

urged. Though as we have noted earlier, the proceedings have been  

purportedly instituted to protect the independence of the judiciary, this is one  

more instance where behaviour in court belies the ostensible position of the  

petitioners, intervenors and their counsel.  It is as if the judicial officers are in  

the dock. We have no hesitation in rejecting that attempt.   Mr Rohtagi submitted  

before the court that this line of argument of the petitioners and intervenors  

would postulate that the judicial officers are co-conspirators.  In fact, it was so  

argued by counsel assisting Mr Giri. This is neither the case in the pleadings of  

the petitioners nor is there any material on the record which can even remotely  

suggest such an inference. We must emphatically reject such attempts on the  

part of the petitioners and the intervenors to malign judicial officers of the district  

judiciary.  They acted in good faith to ensure medical treatment to their  

colleague.  Their conduct cannot be questioned.   

49 Similarly, a considerable degree of emphasis has been placed on the  

statement of Judge Rathi that the nodes of the ECG machine at Dande hospital  

were not working.  Based on this, it has been seriously urged that in fact no  

ECG was done at Dande hospital.  Judge Shrikant Kulkarni in his statement  

dated 24 November 2017 has stated that “emergency treatment” was given to  

Judge Loya at Dande hospital.  Judge SM Modak states that after an initial  

check-up, the doctors at Dande hospital advised shifting the patient to another

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hospital. Judge Vijay Barde who was present at Dande hospital specifically  

stated that the medical officer on duty there examined (“checked-up”) Judge  

Loya “by ECG, blood pressure etc. as per their procedure”. Judge Rathi has  

stated that at Dande hospital, time was wasted because the nodes of the ECG  

machine were broken and the machine was not working. This statement of  

Judge Rathi must, however, be weighed with the doctor’s progress notes at  

Meditrina hospital. The death summary (extracted earlier) specifically adverts  

to the fact that the patient was taken to Dande hospital earlier where an ECG  

was done. Dr Dande has made the same statement. The progress notes also  

note a “tall ‘T’” in the anterior lead which indicates that the ECG was seen by  

the doctors attending to Judge Loya at Meditrina hospital.  These progress  

notes are contemporaneous, since they also form part of the communication  

addressed by Dr NB Gawande at Meditrina to the PSI at Sitabardi on the same  

day after the judge had been brought dead to the hospital. As a matter of fact,  

it is this very ECG which forms the subject matter of the submissions which  

have been urged by one of the intervenors, for whom Mr Prashant Bhushan  

appears. Having regard to the fact that the ECG has been specifically  

mentioned in the progress notes of the doctor at Meditrina hospital, we find no  

reasonable basis to infer that no ECG was done at Dande hospital.  

 50 The statements of the four judges are called into question by Mr Dave,  

counsel for the petitioners, pointing out certain alleged inconsistencies.  It has  

been urged that the Caravan article states that no car was available at 4 am on  

1 December 2014 at Ravi Bhavan and hence Judge Loya was transported by

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an auto-rickshaw to Dande hospital.  Mr Dave criticised the conduct of the  

judicial officers and submitted that it is inconceivable that at a government guest  

house, a car and driver would not have been available even in the early hours  

of the morning.  The submission lacks merit.  Judge Kulkarni has stated that  

Judge Loya was taken in Judge Barde’s car to Dande hospital. Judge Modak  

also notes that Judge Loya was shifted by car to Dande hospital and thereafter  

to Meditrina.  This is confirmed in the statements of Judge Barde and Judge  

Rathi.  The allegation that Judge Loya was not provided even a car to travel  

from Ravi Bhavan to Dande hospital and onwards to Meditrina is a red-herring.    

51 Another submission urged by Mr Dave is that the judicial officers did not  

meet the family of Judge Loya in Mumbai soon after the death. Judge Modak in  

his statement observes that he and Judge Kulkarni met the relatives of Judge  

Loya at his Haji Ali residence after a few days.  The suggestion that this is  

callous, is unfortunate, besides being incorrect. It must be remembered that the  

family of Judge Loya had proceeded to Gategaon for the funeral.  Can the  

circumstance that Judge Kulkarni and Judge Modak met the family a few days  

later in Mumbai have a bearing on their sense of humanity, as Mr Dave urged?  

The obvious answer is in the negative.    

 52 Then it was sought to be urged that if Judge Loya had suffered a heart  

attack around 0400 hours, he would not be wearing a trouser and shirt which  

the inquest report records. This is another submission which has been urged to  

cast doubt on the sequence of events as set out in the statements of the four

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judicial officers. Now a close reading of Judge Rathi’s statement indicates that  

when he reached Ravi Bhavan and met Judge Modak and Judge Kulkarni,  

Judge Loya was attending to a call of nature. It is evident from the statement  

that Judge Loya, when he left Ravi Bhavan was not unconscious and was  

complaining of chest pain and heart burn.  To urge that the depiction of the  

clothes worn by Judge Loya casts doubt on the sequence of events narrated by  

the judicial officers is hence untenable.   

53 Another submission is that if the four judges had accompanied Judge  

Loya to hospital, then as colleagues they would not have indicated his name to  

be Brijmohan instead of Brijgopal.  This is but another attempt to cast doubt on  

the version of the four judicial officers without a substantive basis or foundation.   

Judge Loya was taken to hospital in an emergency. The normal course of  

human events would indicate that his four colleagues would be more concerned  

about getting Judge Loya attended than filling up an admission form. A mistake  

did occur in recording his name as Brijmohan instead of Brijgopal. In our view,  

this cannot be a ground to discredit the detailed factual narration made by the  

four judicial officers who were with him.  Two of them – Judge Kulkarni and  

Judge Modak – were with Judge Loya from the time that the three officers left  

Mumbai for the wedding at Nagpur and until Judge Loya died on 1 December  

2014. They have provided a trustworthy account of their schedule since they left  

Mumbai.  All of them travelled together, stayed together, visited local judges at

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Nagpur, attended the wedding and remained in the company of each other and  

their friends in the judicial fraternity.    

54 Ms Jaising sought to rely on a photograph of a room in Ravi Bhavan and  

wondered how three judges would have shared a room.  Judge Kulkarni has  

referred to the fact that a VIP suite was booked at Ravi Bhavan. Judge Modak  

and Judge Barde support the position. The account provided by the judge  

cannot be  discredited on the basis of surmises.  The occupancy register does  

show that the room was in the name of Judge Kulkarni. His account is that his  

two friends and colleagues (Judge Loya and Judge Modak) shared the  

accommodation with him.   It is unfair to disbelieve this account of colleagues in  

the district judiciary.  They were friends, known to each other and had stayed  

together at Ravi Bhavan during the short trip to Nagpur. No counsel has  

suggested that they were not closely acquainted to each other.     

55 The date of the death in the post-mortem is not mentioned as 7 December  

2014, as submitted by Ms Jaising during the course of her submissions.  The  

date of death is clearly mentioned as 1 December 2014.  The hospital bill of Rs  

4290 at Meditrina is criticised on the ground that it contains, inter alia,  

neurological charges and charges for diet consultation.  It must be noted that  

the issue in the present case is not whether the bill which was prepared at  

Meditrina amounts to negligence. The charge for dietary consultation is  

erroneous. But that cannot be a ground to discredit the fact that Judge Loya was

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taken to Meditrina. That he was taken to Meditrina is clear from the documentary  

material on the record and the consistent statements of all the four judicial  

officers.    

   56 The handing over of the body to Dr Prashant Rathi cannot be faulted.  The  

family of Judge Loya took a considered decision that they would proceed to his  

home town, Gategaon, for the funeral ceremonies.  The report of the discreet  

inquiry contains an elaborate reference to the fact that Dr Prashant Rathi who  

was stationed at Nagpur was contacted by a relative in Aurangabad, requesting  

his help on 1 December 2014.  Dr Rathi has in his statement made a factual  

explanation about how he was contacted by his relative and asked to assist in  

the formalities for Judge Loya.  The presence of Dr Rathi cannot be doubted,  

having regard to the contemporaneous documentary material including the  

accident summary.      

57 Similarly, a fair amount of critical comment has been devoted by counsel  

for the petitioners and intervenors to (i) why the family of Judge Loya was not  

brought to Nagpur by a flight from Mumbai after the death had occurred; and  

(ii) why, as alleged, in the Caravan article, the body reached Gategon for the  

funeral rights unaccompanied.  It is necessary to emphasise that both these  

submissions have no bearing on whether the death of Judge Loya was due to  

natural causes or otherwise, since they relate to events which took place after  

his death.  But it is necessary in the present judgment to discuss the

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submissions because on a close analysis they are evidently unfounded. That  

the family of Judge Loya did not travel to Nagpur after they received intimation  

of his death, is a fact. If the family decided that the funeral should be held at the  

place to which he belonged namely, Gategon near Latur, this was a decision  

personal to the family.  Judge Loya had died. If a considered decision was taken  

by the members of his family to proceed to Gategon instead of travelling first to  

Nagpur and then traversing a distance of nearly 450 kilometres by road to the  

place where the funeral was to be held, such a decision has to be respected.  

Moreover, the allegation that the body was sent unaccompanied to Gategaon  

is contrary to what has emerged on the record.  Judge Kulkarni in the course of  

his statement made a reference to the fact that while the body was sent by an  

ambulance to the place where Judge Loya originally belonged, two judicial  

officers from Nagpur were also sent in another car to accompany the body.  

Judge SM Modak in his statement dated 24 November 2017 specifically notes  

that Shri Sonawane, the Principal District Judge then at Nagpur, deputed two  

local judges to accompany the dead body. Judge VC Barde has also stated that  

after the conclusion of the post-mortem at about 11 am, the dead body was  

sent in an ambulance to the native place of Judge Loya and two judges; Judge  

Rahangdale and Judge Chopda accompanied the body.  The report of the  

discreet inquiry by the Commissioner, SID contains the following observation:  

“4.4   Mr Loya's body was sent to village Gategaon in Latur in  

an ambulance provided by Mr Pawankumar Bhagat,  

Ambulance-Incharge of Meditrina Hospital. Two magistrates  

[Mr Yogesh Rahangdale & Mr Swayam Chopda) were sent by  

the then Principal District Judge, Nagpur, Mr Sonawane along  

with the mortal remains of Mr Loya to Gategaon, Latur. The

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question sought to be replied vide CARAVAN report as "why  

was his body not accompanied by anyone?... is a clear  

attempt to mislead the readers as the facts are otherwise."  

58 There is no reason for this Court to doubt the statements of Judge  

Kulkarni, and Judge SM Modak. Both of them and Judge Loya stayed at Ravi  

Bhavan guest house, where a VIP suite was booked.  All the three judicial  

officers were invited for a wedding in the family of a colleague who in December  

2014 was the Member Secretary of Maharashtra State Legal Services  

Authority. Judge Kulkarni, Judge Modak and Judge Loya travelled together by  

the same train from Mumbai to Nagpur on 29 November 2014 and arrived in  

Nagpur on the morning of 30 November 2014.  They proceeded to Ravi Bhavan  

where a suite was reserved. During the course of the day, the three judicial  

officers visited the residences of two judges of the High Court at Nagpur, Justice  

SB Shukre and Justice PR Bora.  They visited the home of Shri Barde and were  

together all along.  They went to the market, returned to Ravi Bhavan and  

attended the wedding reception in the evening.  After dinner the three judges  

returned to Ravi Bhavan a little before midnight. Judge Modak is also clear in  

the details that he offers. All the three judges who were accompanied by Judge  

Mahajan stopped by at a pan shop before they came back to Ravi Bhavan. The  

fact that all the three judges stayed together is the consistent account   which  

emerges from the statements of Judge Modak and Judge Kulkarni which is  

corroborated by the statement of Judge Barde.  There is no basis for the court  

to doubt the veracity of the natural account of the above three judicial officers  

(Judge Kulkarni, Judge Modak and Judge Barde). The court is requested to do

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so on the ground that the entry in the register at Ravi Bhavan mentions the  

name of Judge Kulkarni but does not contain any reference to the occupancy  

of Judge SM Modak or Judge Loya.  Judge Kulkarni has expressly stated that  

a VIP suite was booked at Ravi Bhavan.  We must lean in favour of the version  

of the four judicial officers unless strong and indisputable circumstances are  

shown to doubt their credibility.  This would be in the larger public interest, to  

uphold the independence and integrity of the institution.  This is corroborated  

by a photocopy of the occupancy register which has been produced on record.  

All the three judicial officers were invited for the same event.  If as friends and  

colleagues, they decided to share one room, that cannot be regarded as an  

unnatural course of conduct.  There is no reason for this court to discard the  

consistent statements of the three judicial officers by engaging in surmises of  

the nature which are sought to be drawn by counsel for the petitioners.  In fact,  

though nothing would turn on it, it is a matter of some interest that even the  

article that was published in the Caravan on 20 November 2017 records Judge  

Loya having had a conversation with his wife on the night of 30 November 2014  

and informing her of the fact that he was staying at Ravi Bhavan together with  

the judges who had accompanied him to Nagpur.    

59 At this stage, we must also make a reference to certain other matters to  

which a reference has been copiously made on behalf of the petitioners to cast  

doubt on the circumstances in which Judge Loya had died.  The first submission  

is that contrary to the directions that were issued in the judgment of this Court

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in its decision in CBI v Amitbhai Anil Chandra Shah (supra), JT Utpat who  

was nominated by the Administrative Committee of the Bombay High Court to  

preside over the criminal trial was transferred on 25 June 2014.  It has been  

urged that since the Court had on 27 September 2012 directed that the  

Administrative Committee would ensure that the trial is conducted from the  

beginning to the end by the same officer, JT Utpat ought not to have been  

transferred.  We must note at this stage that Mr Dave appearing on behalf of  

the petitioners has categorically stated that the court should in the present  

proceedings, confine itself to the issue as to whether Judge Loya had died a  

natural death or otherwise. The issue as to whether Judge JT Utpat could have  

been transferred has no bearing on the circumstances in which Judge Loya  

died. Mr Rohtagi appearing on behalf of the State has urged that the trial was  

yet to begin and hence the transfer of Judge JT Utpat on his request cannot be  

faulted.  We clarify that it is not necessary to express any opinion on the  

submission of Mr Rohtagi since we are of the view that the transfer of the earlier  

judge and the appointment of Judge Loya in June 2014 has no bearing on  

whether Judge Loya’s death on 1 December 2014 was due to natural causes.    

60 The petitioners have sought to rely upon the allegations against the then  

Chief Justice of the Bombay High Court, Shri Justice Mohit Shah made by the  

father and sister of Judge Loya. Reliance has also been placed on a hand-

written note dated 18 February 2015 purportedly scribed by Anuj Loya after a  

meeting with the Chief Justice of the Bombay High Court, who had come to visit

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the family.  The video recording of an interview given to Caravan by the father  

and sister of Judge Loya was also handed over to the court on a pen drive.  The  

members of the family of Judge Loya have disassociated themselves from the  

statements attributed to them in the Caravan publication.  The video recording,  

which we have seen, contains snippets of an interview. Evidently, only a part of  

the interview has been produced.  The allegations against the Chief Justice of  

the Bombay High Court are hearsay.    

61 During the course of his submissions in rejoinder, Mr Dave has attempted  

to discredit the discreet inquiry conducted by the Commissioner of the SID  

urging that the statement of Dr Prashant Rathi was recorded on 22 November  

2017 by the Police Inspector (Crime) police station Sadar, before the state  

government had ordered a discreet inquiry on 23 November 2017.  The  

submission is based on the hypothesis that the statement of Dr Rathi was  

recorded as a part of the discreet inquiry. This is seriously disputed by Mr  

Rohtagi who urged that the statement was recorded by the Sadar police station  

on 22 November 2017 after the articles in the Caravan had appeared on 20 and  

21 November 2017. The discreet enquiry was held by the Commissioner, SID.  

Be that as it may, the presence of Dr Prashant Rathi is established in the  

accidental death summary (AD 00/14) dated 1 December 2014, in the inquest  

report, the receipt executed on 1 December 2014 by Sitabardi police station on  

handing over the dead body, and in the accidental death summary (AD 44/14)  

recorded by Sadar police station at 1600 hours on 1 December 2014. In the

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face of the contemporaneous documentary material, the statement of Dr Rathi  

recorded on 22 November 2017 cannot be construed as something which casts  

doubt on the validity of the discreet inquiry.   

Application for cross-examination  

62 During the course of his submissions, Mr Dave moved an application for  

cross-examination of the following persons whose statements were recorded  

during the course of the discreet inquiry:  

“1 Mr Sajeev Barve, Director General/Commissioner, State  

Inteeligence Department, Maharashtra,  

2 Dr Prashant Bajrang Rathi, Resident of Sai Regency, Ravi  

Nagar, Nagpur,   

3 Mr Niranjan Takle, Reporter of CARAVAN,  

4 Shri Srikant D Kulkarni, Member Secretary, Maharashtra  

State Legal Service Authority,  

5 Shri SM Modak, Principal District Judge, Pune,  

6 Shri Vijay C Barde, Additional Sessions Judge, City Civil and  

Sessions Court, Greater Bombay,  

7 Dr Pinak Gangadhar Rao  Dande, Ram Nagar, Nagpur,  

8 Shri Anuj Brij Gopal Loya s/o Late Sh. BH Loya,  

9 Smt Sharmila Brij Gopal Loya w/o Sh BH Loya  

10 Shri Hari Kishan Ramchandra Loya, f/o Late Sh BH Loya,  

11 Dr Anuradha Balaprasad Biyani, sister of Late Sh BH Loya.”  

63 Order IX of the Supreme Court Rules 2013 deals with Affidavits. Rules 1  

and 2 provide as follows:

PART D  

90    

“1. The Court may at any time, for sufficient reason, order that  

any particular fact or facts may be proved by affidavit, or that  

the affidavit of any witness may be read at the hearing, on such  

conditions as the Court thinks reasonable:   

Provided that where it appears to the Court that either party  

bona fide desires the production of a witness for cross-

examination and that such witness can be produced, an order  

shall not be made authorising the evidence of such witness to  

be given by affidavit.   

2. Upon any application evidence may be given by affidavit; but  

the Court may, at the instance of either party, order the  

attendance for cross-examination of the deponent, and such  

attendance shall be in Court, unless the deponent is exempted  

from personal appearance in Court or the Court otherwise  

directs.”  

Rule 1 empowers the court to allow facts to be proved on affidavit for sufficient  

reason.  However, if the court is of the view that the production of a witness for  

cross-examination has been desired by a party bona fide and that such a  

witness can be produced, an order shall not be made authorising the evidence  

of the witness to be given by affidavit. Under rule 2, a discretion is vested in the  

court to order the attendance for cross-examination of the deponent of an  

affidavit. Under Order IX, a discretion is vested in the court to allow cross-

examination of a person who has filled an affidavit. A party to a proceeding  

before this court –particularly a proceeding under Article 32 – cannot demand  

as of right the production of a person, who has filed an affidavit, for cross-

examination. Whether cross-examination should be allowed has to be  

determined by the court having regard to the interests of justice. Mr Dave  

submitted that this court should, in the first place, direct that the above persons  

should file affidavits before this court and that upon the filing of those affidavits,  

they should be produced for cross-examination by him.  In support of his

PART D  

91    

submissions Mr Dave relied a few decisions of this court. In K.K. Kochunni v  

State of Madras(supra) this Court held:  

“12… it is possible very often to decide questions of fact on  

affidavits. If the petition and the affidavits in support thereof are  

not convincing and the court is not satisfied that the petitioner  

has established his fundamental right or any breach thereof,  

the Court may dismiss the petition on the ground that the  

petitioner has not discharged the onus that lay on him. The  

court may, in some appropriate cases, be inclined to give an  

opportunity to the parties to establish their respective cases by  

filing further affidavits or by issuing a commission or even by  

setting the application down for trial on evidence, as has often  

been done on the Original sides of the High Courts of Bombay  

and Calcutta, or by adopting some other appropriate  

procedure. Such occasions will be rare indeed and such rare  

cases should not, in our opinion, be regarded as a cogent  

reason for refusing to entertain the petition under Article 32 on  

the ground that it involves disputed questions of fact.”  

In CS Rowjee v State of AP24 this Court held:   

“16. It is, no doubt, true that allegations of mala fides and of  

improper motives on the part of those in power are frequently  

made and their frequency has increased in recent times. It is  

also somewhat unfortunate that allegations of this nature which  

have no foundation, in fact, are made in several of the cases  

which have come up before this and other courts and it is found  

that they have been made merely with a view to cause  

prejudice or in the hope that whether they have basis in fact or  

not some of it at least might stick. Consequently it has become  

the duty of the Court to scrutinise these allegations with care  

so as to avoid being in any manner influenced by them, in  

cases where they have no foundation in fact. In this task which  

is thus cast on the courts it would conduce to a more  

satisfactory disposal and consideration of them, if those  

against whom allegations are made came forward to place  

before the court either their denials or their version of the  

matter, so that the Court may be in a position to judge as to  

whether the onus that lies upon those who make allegations of  

mala fides on the part of authorities of the status of those with  

which this appeal is concerned, have discharged their burden  

                                                           24 (1964) 6 SCR 331

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92    

of proving it. In the absence of such affidavits or of materials  

placed before the Court by these authorities, the Court is left to  

judge the veracity of the allegations merely on tests of  

probability with nothing more substantial by way of answer.  

This is precisely the situation in which we find ourselves in the  

present case.”  

Reliance was placed on the decision in Sher Singh in Re25.  

The submission which has been urged is based on a mis-appreciation both of  

the role of the petitioners and on the scope of these proceedings.  The  

petitioners have moved this court in a petition filed in the public interest. Their  

position is that of a relator who seeks to bring a grievance to the attention of the  

court for the purpose of seeking a court mandated inquiry. None of the persons  

whose cross-examination has been sought is a witness in the present  

proceedings.  The court is essentially required to consider to whether a case  

has been made out on behalf of the petitioners (supported by the intervenors)  

for directing an inquiry into the circumstances leading to the death of Judge  

Loya. As part of this process, the court has to decide as to whether the inquiry  

which has been conducted by the state is vitiated and if circumstances have  

been brought to the notice of the court which cast a reasonable suspicion about  

the events leading upto the death of Judge Loya.  The petitioners cannot assert  

as of right that they should be allowed to cross-examine a host of persons  

including the doctors and judicial officers.  By casting unfounded aspersions on  

the judicial officers who had accompanied Judge Loya, the petitioners have  

revealed the real motive of these proceedings which is to bring the judiciary into  

                                                           25 (1997) 3 SCC 216

PART D  

93    

disrepute on the basis of scurrilous allegations.  We find no basis or justification  

to allow the request for cross-examination. The application shall accordingly  

stand rejected.   

Intervention by Centre for Public Interest Litigation  

64 Mr Prashant Bhushan appeared in these proceedings at the stage of the  

rejoinder.  This was after the learned counsel appearing on behalf of the  

petitioners and intervenors had addressed the court and the court had heard  

submissions on behalf of the State of Maharashtra.  The Centre for Public  

Interest Litigation which Mr Prashant Bhushan represents as counsel has  

sought to intervene by an application26. The 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 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 Bhushan himself addressed an  

                                                           26 I.A.No.31086 of 2018

PART D  

94    

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 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.    

65 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.    

66 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 a letter seeking a clarification from Dr RK Sharma.  The letter  

extracts the following reply sent by Dr RK Sharma to AIIMS:

PART D  

95    

“Thanks for your mail, I would like to state that I have been  

grossly misquoted by Caravan magazine regarding death of  

Judge Loya. 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.”  

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:  

 “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

PART D  

96    

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 to Dr Harish Pathak, Professor and Head  

of the Department of Forensic 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  

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.   

67 The opinion of Dr Harish Pathak is extracted below:  

“I have carefully perused the following documents:  

1. Autopsy note of Shri Loya  

2. ECG report

PART D  

98    

According to Principles of Internal Medicine, Harrison,  

Tall, positive hyperacute T waves are the earliest stages of  

ischemia. (Annexure 8, Page 12)  

3. DOCTOR’S PROGRESS NOTES (Annexure 1 Page  

1) indicate that Mr Brijgopal H Loya was brought to Meditrina  

Institute of Medical Sciences with cardiac arrest in collapsed  

condition.   

In spite of all resuscitative measures, he could not be revived  

and declared dated at 06:15 am on 01/12/2017 at Meditrina  

Hospital. (Annexure 1, Page 1, Annexure 16 Page 32,  

Annexure 17, Page 34)  

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),  

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  

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, Page 33)  

The body was shifted to Government Medical College mortuary  

and Panchnama was done wherein no external marks of  

injuries were noted.   

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  

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.

PART D  

99    

7A “Dura congested”   

According to Snell’s Textbook of Anatomy, Dura  

is a fibrous 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 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.   

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.  

7D. “Abdomen- All organs were congested  

and stomach contains 10 ml of yellowish juicy  

material, with no peculiar odour” – No  

comment required.

PART D  

100    

8. Routine vescera were preserved for chemical analysis  

and the report of the same did not reveal any presence of  

poison. 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.   

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  

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  

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)  

• 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 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 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  

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 can  

be blocked by the dislodges thrombus and I find no merit in it  

and disagree with this opinion.  

PART D  

101    

8.3 Once person alive for 30 minutes after symptoms  

condition of heart will have clear signs, (The Caravan,  

Annexure 19, Page 47)  

• 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  

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)  

• 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.  

(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 (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.  

• 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.   

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  

of congestions of almost all the organ is an expected finding.  

In fact, congestion is such a common and nonspecific finding

PART D  

102    

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,  

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 would  

be unreasonable and unjustifiable to doubt sanctity of  

evidence.   

8.8 The 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,  

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.   

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.  

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 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.”  

68 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

PART D  

103    

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.   

69 During the course of his submissions, Mr Dave filed before this Court a  

compilation, inter alia, consisting of a proceeding instituted 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 Fadnavis, the Chief  

Minister of Maharashtra.  The case relates to an incident which took place on 7

PART D  

104    

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 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 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 position to maintain peace and harmony in  

the area where they reside.”  

                                                           27 (2014) 6 SCC 466

PART D  

105    

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.  

70 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 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 Court following a decision

PART D  

106    

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  

71 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 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 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  

                                                           28 (1984) 3 SCC 161

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107    

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.    

72 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 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 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 steps to prevent and cure  

its abuse on the basis of monetary and non-monetary  

directions by the courts.”  

                                                           29 (2010) 3 SCC 402

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73 The misuse of public interest litigation is a serious matter of 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

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danger that the judicial process will be reduced to a charade, if disputes beyond  

the ken of legal parameters occupy the judicial space.   

74 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 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.    

75  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

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been called upon to issue a notice of contempt to the judges on the Committee  

at the relevant time.  Ms Jaising has 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.    

76 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 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 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  

civilities between or towards judges is distinct from the fiercely independent role

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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 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. 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.  

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E Conclusion  

77 For the above reasons, we have come to the conclusion that 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.   

78 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 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.    

79 The petitions shall stand dismissed.  

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80 The transferred cases and pending applications, if any, are 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 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  

                                                           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

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today stands concluded and the High Court would be at liberty to deal with other  

issues raised in the petition/case.  

   82 Ordered accordingly.  

                                                                 ............................................CJI                    [DIPAK MISRA]        

                                                    ...............................................J                    [A M KHANWILKAR]        

                                                    …............................................J                    [Dr D Y CHANDRACHUD]    New Delhi;  April 19, 2018.