Case: TEHSEEN POONAWALLA Vs. UNION OF INDIA


Decision:
0[ds]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. Theissue before the court is whether an inquiry into the death of Judge Loya is warranted on the directions of thiscourt. This would depend in substance on the nature of the inquiry which has been conducted. The latter isa 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 theA 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.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 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.47One 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 thattwo 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 Courtjudges. 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.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 hoursof 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. Tofind 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.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.50The 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 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 themorning. 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.51Another submission urged by Mr Dave is that the judicial officers did not meet the family of Judge Loya in Mumbai soon after thedeath. 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.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.53Another 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.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.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 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.56The 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.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 submissions because on a close analysis they are evidentlyThere 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.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.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 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.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 hisdated 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.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 which has been taken in the judicial capacity. This constitutes a serious attempt to scandalise the court and obstruct the course of justice.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 byis 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 roleof 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 inFor 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.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.