Holding

There was no reasonable suspicion of foul play in Judge Loya's death; the death was due to natural causes, and the writ petitions seeking a further inquiry were dismissed.

Summary

The Supreme Court examined petitions filed under Article 32 seeking an inquiry into the death of Judge Brijgopal Harkishan Loya, who died on 1 December 2014 while presiding over the Sohrabuddin case. The petitioners relied on media reports alleging foul play and questioned the conduct of the judges who accompanied the deceased. The Court held that the inquest report, post‑mortem findings, and consistent statements of the four judicial officers demonstrated that Judge Loya died of natural causes (coronary artery insufficiency) and that there was no reasonable suspicion warranting a further investigation. The Court also rejected the petitioners' request to cross‑examine the officers, finding no basis under Order IX of the Supreme Court Rules. It concluded that the petitions were frivolous, lacked bona fides, and amounted to an attempt to scandalise the judiciary, and therefore dismissed them without invoking contempt proceedings.

Issues considered

The nature of Judge Loya's death: natural versus unnatural and whether reasonable suspicion exists under Section 174 CrPC.
Whether the Court can order a further inquiry based solely on media reports and public interest petitions.
The scope and adequacy of the discreet inquiry and inquest report under Section 174 CrPC.
The permissibility of cross‑examining the four judicial officers under Order IX of the Supreme Court Rules.
Whether the petitions constitute contempt of court or an abuse of the public interest litigation process.

Legislation cited

Code of Criminal Procedure, 1973s. 157, s. 174, s. 175, s. 176, s. 227, s. 482
Constitution of Indias. Article 226, s. Article 32
Contempt of Courts Act, 1971
Supreme Court Rules, 2013s. Order IX, s. Rule 1, s. Rule 2

Subjects

judicial deathinquestSection 174 CrPCpublic interest litigationcontempt of courtArticle 32cross‑examinationdiscreet inquirymedia allegationsjudicial independence

Judgment

[2018] 9 S.C.R. 1 1

TEHSEEN POONAWALLA A
v.
UNION OF INDIA AND ANR.
(Writ Petition (Civil) No. 19 of 2018)
APRIL 19, 2018 B
[DIPAK MISRA, CJI, A.M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Constitution of India – Art.32 – Judge Loya death case –
Writ petitions seeking inquiry into the circumstances of the death of
C
the Judge who was presiding over the criminal trial wherein one of
the accused was the National President of the Bharatiya Janata
Party (then Minister of State for Home in the State of Gujarat)–
Petitions based on two articles published in the “Caravan” magazine
raising suspicion about unnatural death of the Judge as opposed
to his natural death due to heart attack – Petitioners inter alia D
questioned the conduct of the colleagues of the Judge in attending
to him – Held: Issue in the present case is whether the Judge died a
natural or unnatural death – Conduct of his colleagues in attending
to him is not in question – To attribute motives to his colleagues
who were with him is absurd, if not motivated – They did their best
E
under the circumstances, acting entirely in good faith – There is no
reason to doubt the clear and consistent statements of the said
judicial officers – Documentary material on record indicates that
the Judge died due to natural causes – Members of the family of
the Judge disassociated themselves from the statements attributed
to them in the Caravan publication – No ground to hold that there F
was a reasonable suspicion about the cause or circumstances of
death which would merit a further inquiry – Conduct of the
petitioners and the intervenors lack bona fides, scandalizes the
process of Court and prima facie constitutes criminal contempt –
However, criminal contempt proceedings are chosen not to be
G
initiated – No merit in the writ petitions – Contempt of Courts Act,
1971.
Code of Criminal Procedure, 1973 – s.174 – Inquest report
under – Purpose of – Writ petitions seeking inquiry into the
circumstances of the death of the Judge who was presiding over the
H
1
2 SUPREME COURT REPORTS [2018] 9 S.C.R.

A criminal trial wherein one of the accused was the National President
of the Bharatiya Janata Party (then Minister of State for Home in
the State of Gujarat) – Plea of writ petitioners that there was no
investigation/inquiry carried out by the police in the inquest u/s.174
– Held: Purpose of holding an inquest is limited – Inquest report
does not constitute substantive evidence – Hence, matters relating
B
to how the deceased was assaulted or who assaulted him and under
what circumstances are beyond the scope of the report – Inquest
report is primarily intended to ascertain the nature of the injuries
and the apparent cause of death.
Supreme Court Rules, 2013 – Or. IX, rr.1, 2 – Cross-
C examination under, of the deponent of an affidavit – Petitioners
questioned the discreet enquiry conducted by the State following
the articles published in Caravan magazine raising suspicion as to
unnatural death of the Judge who was presiding over the criminal
trial wherein one of the accused was the National President of the
D Bharatiya Janata Party (then Minister of State for Home in the State
of Gujarat) – Plea of petitioners that doctors and judicial officers
whose statements were recorded during the course of enquiry be
first directed to file an affidavit and then allowed to be cross-
examined – Held: Under Or.IX of the 2013 Rules discretion is vested
in the court to allow cross-examination of a person who has filed
E an affidavit – Petitioners moved Supreme Court in a petition filed
in public interest and their position is that of a relator who seeks to
bring a grievance to the attention of the Court for the purpose of
seeking court mandated inquiry – None of the persons whose cross-
examination has been sought is a witness in the present proceedings
F – Petitioners cannot assert as of right that they should be allowed
to cross-examine – No justification to allow the request for cross-
examination – Constitution of India – Art.32.
Public Interest Litigation – Purpose of, and its misuse –
Discussed – Constitution of India – Arts.32 and 226.
G Judicial Discipline – Recusal of Judges – Held: A decision
as to whether a judge should hear a case is a matter of conscience
for the judge.
Judge Loya was presiding over the criminal trial arising out
of the encounter killings wherein one of the accused was Shri
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 3

‘AS’, National President of the Bharatiya Janata Party (then A
Minister of State for Home in the State of Gujarat). On 29
November 2014, Judge Loya travelled from Mumbai to Nagpur
together with two other judicial officers, Judge ‘K’ and Judge
‘M’ to attend the wedding in the family of another judicial officer.
On 30 November 2014, Judge Loya and his colleagues attended
B
the wedding reception. All of them stayed at Ravi Bhavan, a
government guest house at Nagpur. In the early hours of 1
December 2014 Judge Loya complained of chest pain. He was
initially taken to Dande hospital. From there he was referred to a
cardiac care facility. His colleagues accompanied him to Meditrina
hospital. Judge Loya died before he was admitted to Meditrina C
hospital. Two articles were published in the Caravan magazine
raising suspicion about unnatural death of Judge Loya as opposed
to his natural death due to heart attack. Hence, the present
petition.
Disposing of the matters, the Court D
HELD: Section 174 CrPC
1.1 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 E
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 F
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. The purpose of holding an inquest is limited. G
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
H
4 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 is expected
to contain the details of the injuries through a scientific
examination. [Paras 28, 29] [59-B-F]
B
1.2 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
C (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
D 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
E 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 mentioned in sub-section (1) of Section
174 the Magistrate may hold an inquiry. [Para 31] [62-E-H]
The submissions analysed
F
1.3 A discreet inquiry was ordered by the State Government
in view of the articles which were published in Caravan regarding
the death of a judicial officer. 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
G officers. The matter was of importance. Three of the statements
specifically referred to the letter to the Commissioner while the
fourth referred to the request which was made by the
Commissioner and the permission which was granted by the High
Court. There was no reason for the four judicial officers to
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 5

procrastinate or delay the submission of their statements. There A
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
B
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. 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 C
truth. They had nothing to conceal nor an axe to grind. The
statements were submitted with dispatch. 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.
D
Each of the four judges had acted with a sense of duty. This is
how they would be expected to conduct themselves, in answering
to a call of duty. One of the submissions urged 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 ‘BG’ and Justice ‘SBS’) were published. It was submitted E
that the statements of the judicial officers cannot be regarded as
independent, in view of the fact that 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. It was
submitted that judicial officers in the district judiciary could not
F
be expected to take a plea at variance with what was stated by
the two judges of the High Court. It was 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 G
the Indian Express was published on 27 November 2017 and that
was when the statements attributed to Justice ‘BG’ and Justice
‘SBS’ 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
H
6 SUPREME COURT REPORTS [2018] 9 S.C.R.

A before the Indian Express article was published. [Paras 46, 47]
[75-G-H; 76-A-H; 77-A-B]
1.4 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
B him to a hospital nearby is absurd, if not motivated. In hindsight,
it is easy to criticize 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
C 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
‘R’ who was attached to the Nagpur Bench of the High Court at
D the material time was with Judge ‘K’ and Judge ‘M’ when Judge
Loya was shifted to the hospital, as was Judge ‘W’. Dr ‘PH’ who
was a relative of Judge ‘R’ was a cardiac consultant attached to
the Meditrina hospital. Judge ‘R’ contacted him on phone and it
was at his suggestion that the judges took a decision to shift
Judge Loya to Meditrina. To find fault with the judges for this
E course of action is unacceptable. The judicial officers of the district
judiciary acted in good faith to ensure medical treatment to their
colleague. Their conduct cannot be questioned. Judge ‘K’ in his
statement dated 24 November 2017 stated that “emergency
treatment” was given to Judge Loya at Dande hospital. Judge
F ‘M’ stated that after an initial check-up, the doctors at Dande
hospital advised shifting the patient to another hospital. Judge
‘B’ 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
‘R’ stated that at Dande hospital, time was wasted because the
G nodes of the ECG machine were broken and the machine was not
working. This statement of Judge ‘R’ must, however, be weighed
with the doctor’s progress notes at Meditrina hospital. The death
summary specifically adverted to the fact that the patient was
taken to Dande hospital earlier where an ECG was done. Dr. ‘D’
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 7

made the same statement. The progress notes also noted a “tall A
‘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 the doctor at Meditrina
to the PSI at Sitabardi (within whose jurisdiction Meditrina
B
Hospital is located) 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
were urged by one of the intervenors. Having regard to the fact
that the ECG was specifically mentioned in the progress notes of
the doctor at Meditrina hospital, there is no reasonable basis to C
infer that no ECG was done at Dande hospital. Further, Judge
‘K’ stated that Judge Loya was taken in Judge B’s car to Dande
hospital. Judge ‘M’ also noted that Judge Loya was shifted by
car to Dande hospital and thereafter to Meditrina. This is
confirmed in the statements of Judge ‘B’ and Judge ‘R’. The
D
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. [Paras 48-50] [77-F-H; 78-A-B, E-H; 79-A-C, E-
F]
1.5 Judge ‘M’ in his statement observed that he and Judge
‘K’ met the relatives of Judge Loya at his Haji Ali residence E
after a few days. The suggestion that this is callous, is
unfortunate, besides being incorrect. The family of Judge Loya
had proceeded to Gategaon for the funeral. Can the circumstance
that Judge ‘K’ and Judge ‘M’ met the family a few days later in
Mumbai have a bearing on their sense of humanity, as urged? F
The obvious answer is in the negative. [Para 51] [79-G-H]
1.6 A close reading of Judge R’s statement indicates that
when he reached Ravi Bhavan and met Judge ‘M’ and Judge
‘K’, Judge Loya was attending to a call of nature. It is evident
from the statement that Judge Loya, when he left Ravi Bhavan G
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. [Para 52] [80-B-C]

H
8 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 1.7 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. This
cannot be a ground to discredit the detailed factual narration made
B
by the four judicial officers who were with him. Two of them –
Judge ‘K’ and Judge ‘M’– 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
C Mumbai. All of them travelled together, stayed together, visited
local judges at Nagpur, attended the wedding and remained in
the company of each other and their friends in the judicial
fraternity. The fact that all the three judges stayed together is
the consistent account which emerges from the statements of
Judge ‘M’ and Judge ‘K’ which is corroborated by the statement
D
of Judge ‘B’. There is no basis for the Court to doubt the veracity
of the natural account of the three judicial officers (Judge ‘K’,
Judge ‘M’ and Judge ‘B’). The Court is requested to do so on
the ground that the entry in the register at Ravi Bhavan mentions
the name of Judge ‘K’ but does not contain any reference to the
E occupancy of Judge ‘M’ or Judge Loya. Judge ‘K’ expressly
stated that a VIP suite was booked at Ravi Bhavan. One 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
F
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 to discard the
G consistent statements of the three judicial officers by engaging
in surmises of the nature which are sought to be drawn by the
petitioners. 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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 9

together with the judges who had accompanied him to Nagpur. A
[Paras 53, 58] [80-D-F; 83-C-G]
1.8 The date of the death in the post-mortem is not
mentioned as 7 December 2014, as submitted. 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, B
inter alia, neurological charges and charges for diet consultation.
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 C
on the record and the consistent statements of all the four judicial
officers (Judge ‘K’, Judge ‘M’, Judge ‘B’ and Judge ‘R’). [Para
55] [81-B-D]
1.9 The handing over of the body to Dr ‘PR’ cannot be
faulted. The report of the discreet inquiry contains an elaborate D
reference to the fact that Dr ‘PR’ who was stationed at Nagpur
was contacted by a relative in Aurangabad, requesting his help
on 1 December 2014. Dr ‘PR’ 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 E
‘PR’ cannot be doubted, having regard to the contemporaneous
documentary material including the accident summary. The
presence of Dr ‘PR’ 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 F
death summary (AD 44/14) recorded by Sadar police station
(within whose jurisdiction Ravi Bhavan falls) at 1600 hours on 1
December 2014. In the face of the contemporaneous documentary
material, his statement recorded on 22 November 2017 cannot
be construed as something which casts doubt on the validity of G
the discreet inquiry. [Paras 56, 61] [81-D-F; 85-C-D]
1.10 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 H
10 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
contrary to what has emerged on the record. Judge ‘K’ 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 ‘M’ in his
C statement dated 24 November 2017 specifically noted that two
local judges were deputed to accompany the dead body. Judge
‘B’ 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 accompanied the body.
There is no reason to doubt the statements of Judge ‘K’, and
D
Judge ‘M’. [Paras 57, 58] [82-A-E, G]
1.11 The issue as to whether Judge JTU (the earlier judge)
could have been transferred has no bearing on the circumstances
in which Judge Loya died. The transfer of the earlier judge and
the appointment of Judge Loya in June 2014 has no bearing on
E whether Judge Loya’s death on 1 December 2014 was due to
natural causes. [Para 59] [84-C-E]
1.12 The petitioners relied upon the allegations against
the then Chief Justice of the Bombay High Court, Shri Justice
‘MS’ made by the father and sister of Judge Loya. The video
F 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 contains snippets of an
G interview. Evidently, only a part of the interview has been
produced. The allegations against the Chief Justice of the Bombay
High Court are hearsay. [Para 60] [84-E-G]
Application for cross-examination
2. Order IX of the Supreme Court Rules, 2013 deals with
H Affidavits. Rule 1 empowers the court to allow facts to be proved
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 11

on affidavit for sufficient reason. However, if the court is of the A
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-
B
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 filed 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 C
should be allowed has to be determined by the court having regard
to the interests of justice. 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
D
of the persons whose cross-examination has been sought is a
witness in the present proceedings. The Court is essentially
required to consider as 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 E
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
F
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. There is no basis
or justification to allow the request for cross-examination. The G
application shall accordingly stand rejected. [Paras 63] [86-B, E-
G; 88-C-F]
Intervention by Centre for Public Interest Litigation
3. The facts have emerged from the record which indicate
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12 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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, Counsels are expected to assist the court with
a sense of objectivity in aid of justice. A compilation was filed,
B
inter alia, consisting of a proceeding instituted under Section 482
of the CrPC 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 was the Chief Minister
C of Maharashtra. The case relates to an incident which took place
on 7 June 1991 on account of the removal of certain construction
in Nagpur. The Division Bench of the High Court noted, that
though the incident was of 1991, not much progress was made in
that case and with the passage of time, the dispute was amicably
settled between the parties who were residents of Nagpur
D
localities. The criminal case was accordingly quashed. One is
rather surprised at the manner in which an insinuation was made
by producing the said order, which was passed in completely
unrelated proceedings. The insinuation was against the judges
of the Bombay High Court at Nagpur for having quashed a criminal
E case in which the present Chief Minister was involved. High
Court in quashing the proceedings placed reliance on a decision
of Supreme 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 ‘BRG’. This is
F
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 was sought to be relied upon to somehow sensationalise
the case. Wholly unfounded aspersions were cast on the judges
of the Bombay High Court following a decision which was taken
G in the judicial capacity. This constitutes a serious attempt to
scandalise the court and obstruct the course of justice. [Paras
68-70] [98-D-E, G-H; 99-A-C, G; 100-A-E]
Public Interest Litigation
4.1 Public Interest Litigation has developed as a powerful
H tool to espouse the cause of the marginalised and oppressed.
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 13

Indeed, that was the foundation on which public interest A
jurisdiction was judicially recognised. 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
B
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 C
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
D
trust doctrine have evolved during the 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 E
process. 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
F
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. The misuse of public
interest litigation is a serious matter of concern for the judicial
process. Both Supreme Court and the High Courts are flooded
with litigation and are burdened by arrears. Frivolous or motivated G
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
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14 SUPREME COURT REPORTS [2018] 9 S.C.R.

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
B
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
C 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
D
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 danger that the judicial process
will be reduced to a charade, if disputes beyond the ken of legal
parameters occupy the judicial space. [Paras 71-73] [100-E-H;
E 101-A-D; G-H; 102-A-E]
4.2 The present case is indeed a case in point. Repeatedly,
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
F 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
G judicial institutions. Judicial review is a potent weapon to
preserve the rule of law. However, here there has been 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
H vulnerable to wanton attacks on their independence. Supreme
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 15

Court would be failing in its duty if it were not to stand by them. A
Aspersions have been cast on the Administrative Committee of
the Bombay High Court. Supreme Court has been called upon to
issue a notice of contempt to the judges on the Committee at the
relevant time. Even the judges of this Bench hearing the present
proceedings, were not spared from this vituperative assault on
B
the judiciary. 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 C
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 of the judge as
adjudicator. On the well-settled parameters which hold the field,
D
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 the conduct of Judges. Serious attacks have been made
on the credibility of two judges of the Bombay High Court. The E
conduct of the petitioners and the intervenors scandalizes the
process of the court and prima facie constitutes criminal contempt.
However, on a dispassionate view of the matter, proceedings by
way of criminal contempt are chosen not to be initiated if only not
to give an impression that the litigants and the lawyers appearing
F
for them have been subjected to an unequal battle with the
authority of law. One hopes 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 G
is based on its moral authority. It is with that firm belief that the
jurisdiction in contempt has not been invoked. [Paras 74-76] [102-
E-H; 103-A-C, E-H; 104-A-D]

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16 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Conclusion
5. For the above reasons, 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
B 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 conduct of the petitioners and the intervenors lack
in bona fides and reveals a misuse of judicial process. [Paras 77,
78] [104-D-G]
C
Transferred Case (Criminal) No.2 of 2018:
6. This Transferred case was heard together with the
accompanying group of cases (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).
D Since the case also raises certain other matters (other than the
death of Judge Loya), the present case shall be remitted back to
the Nagpur Bench of the High Court of Judicature at Bombay.
However, it is clarified that the circumstances relating to the death
of Judge Loya which have been dealt with by Supreme Court in
the judgment delivered today stands concluded and the High
E Court would be at liberty to deal with other issues raised in the
petition/case. [Para 81] [105-A-D]
Pedda Narayana v State of Andhra Pradesh (1975)
4 SCC 153 : [1975] Suppl. SCR 84; Amar
Singh v. Balwinder Singh (2003) 2 SCC 518 : [2003]
F 1 SCR 754; Radha Mohan Singh Alias Lal Saheb v State
of U.P. (2006) 2 SCC 450 : [2006] 1 SCR 519; Madhu
Alias Madhuranatha v State of Karnataka (2014) 12
SCC 419 : [2013] 12 SCR 947; Manoj Kumar Sharma
v State of Chhattisgarh (2016) 9 SCC 1: [2016] 7 SCR
G 154; Bimla Devi v Rajesh Singh (2016) 15 SCC 448:
[2015] 10 SCR 1087; Yogesh Singh v Mahabeer Singh
(2017) 11 SCC 195 : [2016] 7 SCR713; Bandhua Mukti
Morcha v Union of India (1984) 3 SCC 161 : [1984] 2
SCR 67; State of Uttaranchal v Balwant Singh Chaufal
(2010) 3 SCC 402 : [2010] 1 SCR 678 – relied on.
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 17

Delhi Judicial Service Association, Tis Hazari Court, A
Delhi v State of Gujarat (1991) 4 SCC 406 : [1991] 3
SCR 936; Rubabbuddin Sheikh v State of Gujarat
(2010) 2 SCC 200 : [2010] 1 SCR 991; Narmada Bai v
State of Gujarat (2011) 5 SCC 79 : [2011] 5 SCR 729;
Central Bureau of Investigation v Amitbhai Anil
B
Chandra Shah (2012) 10 SCC 545 : [2012] 8 SCR
945; Ravindra Pal Singh v. Santosh Kumar Jaiswal
(2011) 4 SCC 746; K. Kochunni v State of Madras
[1959] Supp 2 SCR 316; State of Haryana v Bhajan
Lal (1992) Supp (1) SCC 335 : [1990] 3 Suppl. SCR
259; Ashok Kumar Todi v Kishwar Jahan (2011) 3 SCC C
758 : [2011] 3 SCR 597; Zahira Habibullah Sheikh v
State of Gujarat (2006) 3 SCC 374 : [2006] 2 SCR
1081; Vineet Narain v Union of India (1996) 2 SCC
199 : [1996] 1 SCR 1053; Mahendra Rai v. Mithilesh
Rai (1997) 10 SCC 605; Suresh Rai v State of Bihar
D
AIR 2000 SC 2207 : [2000] 2 SCR 796; Shukla Khader
v Nausher Gama (1975) 4 SCC 122; Khujji @ Surendra
Tiwari v State of Madhya Pradesh (1991) 3 SCC 627:
[1991] 3 SCR 1; CS Rowjeev State of AP [1964] 6 SCR
331; Sher Singh in Re (1997) 3 SCC 216 : [1997] 1
SCR 654; Narinder Singh v State of Punjab (2014) 6 E
SCC 466 – referred to.
Case Law Reference
[1991] 3 SCR 936 referred to Para 11
[2010] 1 SCR 991 referred to Para 11
F
[2011] 5 SCR 729 referred to Para 11
(2011) 4 SCC 746 referred to Para 11
[1959] Supp. 2 SCR 316 referred to Para 15
[1990] 3 Suppl. SCR 259 referred to Para 16
[2011] 3 SCR 597 referred to Para 16 G
[2006] 2 SCR 1081 referred to Para 16
[1996] 1 SCR 1053 referred to Para 16
[2012] 8 SCR 945 referred to Para16

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18 SUPREME COURT REPORTS [2018] 9 S.C.R.

A (1997) 10 SCC 605 referred to Para 29
[2000] 2 SCR 796 referred to Para 29
(1975) 4 SCC 122 referred to Para 29
[1975] Suppl. SCR 84 relied on Para 30
B [1991] 3 SCR 1 referred to Para 30
[2003] 1 SCR 754 relied on Para 30
[2006] 1 SCR 519 relied on Para 30
[2013] 12 SCR 947 relied on Para 30
C
[2016] 7 SCR 154 relied on Para 30
[2015] 10 SCR 1087 relied on Para 30
[2016] 7 SCR 713 relied on Para 30
[1964] 6 SCR 331 referred to Para 63
D
[1997] 1 SCR 654 referred to Para 63
(2014) 6 SCC 466 referred to Para 69
[1984] 2 SCR 67 relied on Para 71
[2010] 1 SCR 678 relied on Para 72
E
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
19 of 2018
Under Article 32 of the Constitution of India
WITH
F
W. P. (C) No. 20 of 2018 and W. P. (C) No.73 of 2018
T. C. (Crl.). No. 1 and T. C. (Crl.). No. 2 of 2018.
Mukul Rohatgi, P. V. Surendranath, Ms. Indira Jaising, Sr. Advs.,
Varinder Kumar Sharma, Ms. Suman Rani, Ms. Ashima Mandla, Ms.
G Deepali Dwivedi, Ms. Mandakini Singh, Jatin Sehgal, Ms. Devna Soni,
Mohd. Shahid Hussain, Ms. Srishti Agnihotri, Ms. Anitha Shenoy, Prakash
Kumar Singh, Amir Nabi, Ms. Priyanka Gladson, Dr. Gunratan Sadvarte,
Ranjit Kumar Sharma, Ranjit Kumar Sharma, Nishant R. Katneshwarkar,
Ms. Resmitha R. Chandran, Ms. Lekha Sudhakran, Fuzail Ahmad
Ayyubbi, Sanpreet Singh Ajmani, Kuldeep Rai, Anubhav, Ajay Sharma,
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 19

Ajit Sharma, Prashant Bhushan, Ms. Cheryl D’Souza, O. Kuttan, A
Ms. Amiy Shukla, Ms. Aastha Shan, Advs. for the appearing parties.
The Judgment of the Court was delivered by
Dr DY CHANDRACHUD, J.
A The Context B
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 C
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: D
(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 E
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 home at the time of Sohrabuddin’s killing, and the Bharatiya
F
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 G
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.
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20 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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
C 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
D 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
E 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,
F 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.”
G 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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 21
[DR. D. Y. CHANDRACHUD, J.]

at the facility—”was not working.” Later, Harkishan said, Loya A
“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 B
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 C
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 D
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 E
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 F
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 G
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
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22 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
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.
B
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
C 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.
D “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
E 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
F 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
G 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
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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 23
[DR. D. Y. CHANDRACHUD, J.]

was delivered at around 11.30 pm, after Biyani’s arrival, according A
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
B
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.”
Loya’s wife, Sharmila, and his daughter and son, Apurva and Anuj, C
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 D
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 E
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 F
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 G
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-
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24 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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,
C 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.
D 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 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
E 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,
F 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?”
G 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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 25
[DR. D. Y. CHANDRACHUD, J.]

recommended the post-mortem, and why? What was suspicious A
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
B
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 C
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 D
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 E
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.”
Even after this, many questions were left unanswered. “We did
try to get the details of the treatment administered in Dande F
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. G
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 “maiyatachachulatbhau”—or the
paternal cousin brother of the deceased. This latter person is
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26 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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.
C
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.”
D
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
E 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
F 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.”
G 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,
smoking, high cholesterol, high blood pressure, obesity, diabetes
are the causes for such coronary artery insufficiency.” Biyani
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 27
[DR. D. Y. CHANDRACHUD, J.]

pointed out that none of these were applicable to her brother. A
“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 B
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: C
“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 D
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. E

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 F
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. G
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
H
28 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
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
B
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
C 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
D 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
E 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
F 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
G 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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 29
[DR. D. Y. CHANDRACHUD, J.]

was coming from the court, he was like, ‘bahut tension hai,’” A
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 B
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 C
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
courtroom, whispering and staring at the complainant’s lawyers
in an intimidating manner.
D
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 E
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 F
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 G
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
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30 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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.”
C
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
D 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.”

E 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.
The same day, news of MS Dhoni’s retirement from test cricket
dominated television screens across the country. As Biyani
F 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
G
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
H them, they can harm anyone of our family members. There is
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 31
[DR. D. Y. CHANDRACHUD, J.]

threat to our lives.” A
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 B
I am extremely scared for the life of my daughters and grand
children.” 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 C

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 D
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 Jayshri Laxmanrao Patil1 and
another by Bandhuraj Sambhaji Lone2. Each of these petitioners has E
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 F
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. G
Procedural directions
4. On 16 January 2018, a two judge Bench of this Court issued
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 H
32 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.”
In view of the direction to put up the case before the appropriate Bench,
B 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
C 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
D 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
E 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.
F Subsequently, Ms Jaising has clarified that since she is appearing for an
intervenor and not for the petitioners in any of those writ 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.
G 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.
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 33
[DR. D. Y. CHANDRACHUD, J.]

6. We have heard Mr Dushyant Dave, Ms Indira Jaising, Mr V A
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 B
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. C

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. D
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 S M Modak(“Judge Modak”) to attend the wedding in the family
of another judicial officer, Smt Swapna Joshi who was then a Member E
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 F
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 G
colleagues are stated to have accompanied him to Meditrina hospital.
Judge Loya died before he was admitted to Meditrina, since he was
stated to 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 H
34 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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.
C 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
D General and Commissioner in the State Intelligence Department. By a
communication dated 23 November 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.
E
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
F iv. Mr R RRathi – 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.”
G
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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 35
[DR. D. Y. CHANDRACHUD, J.]

Chief Justice had granted the permission “to record the say” of the four A
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:
i. Judge Loya was in Nagpur to attend the wedding in the family B
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 C
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 D
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, E
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 F
him to bring the patient to 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 G
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
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36 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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;
C 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;
xi. The Caravan article raised certain doubts about the role of
one Ishwar Baheti. In that context, the report of the
D 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
E 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
F 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-wisher [“karyakarta &
shubh-chintak”] of late Mr Vilasraoji Deskhmukh and that he
was not connected with RSS. Late Mr Brijgopal Loya’s father,
G 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 memory of my father on his first death
anniversary according to panchang on 06-12-2015 at Gategaon,
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 37
[DR. D. Y. CHANDRACHUD, J.]

Latur where everyone from my family including my grandfather A
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 that B
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.
C
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 D
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 E
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;
xiii.The entire sequence of events was narrated in the statements F
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.
G
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
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38 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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;
C
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;
D 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
E 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.
F 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
G
to save him. Judge Loya died as a result of natural causes.
C Submissions:
I The petitioners and intervenors

H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 39
[DR. D. Y. CHANDRACHUD, J.]

A Mr Dushyant Dave A
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 B
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 C
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 D
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.”
After this court directed a CBI investigation into the killings of Sohrabuddin
and his wife Kauserbi, a charge-sheet was submitted against a number E
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, F
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 G
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
4
(1991) 4 SCC 406
5
(2010) 2 SCC 200
6
(2011) 5 SCC 79
H
40 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 Investigationv Amitbhai Anil
Chandra Shah7,while upholding the grant of bail by the Gujarat High
B 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
C 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
D 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 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
E 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.”
F
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.
G 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,
7
(2012) 10 SCC 545
8
(2011) 4 SCC 746
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 41
[DR. D. Y. CHANDRACHUD, J.]

Judge Loya was appointed as CBI judge in which assignment he A
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
B
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 police officers.
Rubabuddin, the original petitioner also challenged the order of discharge C
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 D
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, E
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 F
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 G
which is not ordinarily found amongst public functionaries.
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:
H
42 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “(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;
B
(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
C suffered chest pain. The bill prepared by Meditrina hospital
inexplicably contains charges for non-invasive lab, neurosurgery,
diet consultationand 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
D 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
E 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
F 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 caston the histo-pathologialreport of 5
G 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

H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 43
[DR. D. Y. CHANDRACHUD, J.]

Brijgopal Harikishan Loya. It has been urged that if Judge Loya A
was accompanied by his colleagues, his name would not have
been furnished incorrectly to the hospital;
(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 B
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 C
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.” D
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;
E
(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 F
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
G
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

H
44 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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
C be relied upon;
(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
D 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;
E (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;
F (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
G 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
H taken, Judge Rathi in his statement has recorded that at Dande
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 45
[DR. D. Y. CHANDRACHUD, J.]

hospital the ECG machine was not working.” A
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 B
to the media.
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 C
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, D
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
E
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 F

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
G
11 Dr Anuradha BalaprasadBiyani, 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
H
46 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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
C 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;
D v. The statement of judge Rathi that the ECG facility at Dande
hospital was not working;
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;
E
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
F 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
G 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;
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 47
[DR. D. Y. CHANDRACHUD, J.]

x. The failure to produce the case diary of PS Sitabardi or Sadar; A
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; B

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 C
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 CrPC. The submission is that the expression “reason to suspect the D
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 E
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 F
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 G
public rights and duties, which affects the whole community as a
community and is harmful to society in general. The concept of

10
(1992) Supp (1) SCC 335
11
(2011) 3 SCC 758
12
(2006) 3 SCC 374 H
48 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 justice—often
B
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
C 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.
D
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.”
E 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,
F 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
G
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
13
(1996) 2 SCC 199
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 49
[DR. D. Y. CHANDRACHUD, J.]

circumstances which warrants a court monitored investigation. These A
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 B
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;
C
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;
D
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 E
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 F
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
G
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 does not extend to the “Sohrabuddin fake
encounter case trial..or its trajectory; the transfer of the predecessor
14
(2012) 10 SCC 545
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50 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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:
C
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
D 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 expert opinion of Dr RK
E 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.
F
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:
G
“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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 51
[DR. D. Y. CHANDRACHUD, J.]

muscle consistent with his death being due to acute myocardial A
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 B
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. C

The histo-pathology of heart muscle says it is normal. The coronary
artery block in LAD could be an innocent bystander.
2. Unlikely to be because of a recent MI but could be because of
an intensive CPR.” D
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
E
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 F
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
G
matter there.
E Mr PallavShishodia:
20. Mr Pallav Shishodia, learned senior counsel, has urged in his
submissions that:
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52 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “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
B
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:
C
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
D Loya were a party to the conspiracy.
II State of Maharashtra
A Harish Salve:
22. Mr Harish Salve, learned senior counsel submitted that judicial
E 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 the district judiciary are in a
F 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:
G 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 Chaufal 15. The petitions as well as
the submissions urged in support constitute an attempt to scandalise the
15
H (2010) 3 SCC 402
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 53
[DR. D. Y. CHANDRACHUD, J.]

judiciary and sensationalise the issue. A
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 B
flurry of writ petitions;
(ii) Ordinarily, this Court would not entertain a petition only on
the basis of news reports, because they are hear say in the
nature. All the petitions are based entirely on news reports.
The source of knowledge is the reports which appeared in C
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 D
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 E
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 F
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
G
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
H
54 SUPREME COURT REPORTS [2018] 9 S.C.R.

A indicate that the death was 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
B 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
C 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
D 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
E 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
F Medical College at Nagpur. 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
G 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
H taken to Dande hospital and later to Meditrina. The error
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 55
[DR. D. Y. CHANDRACHUD, J.]

was corrected on 10 December 2014; A
(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 B
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 C
inquiry by the Commissioner, SID. The inquiry was initiated
after news reports appeared in Caravan on 20 and 21
November 2017. While conducting 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 D
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;
E
(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 F
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 G
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
H
56 SUPREME COURT REPORTS [2018] 9 S.C.R.

A February 2018 containing a reference to the opinion purportedly
given by Dr Sharma, two letters dated 14 February 2018 were
addressed to AIIMS 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
B
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
C 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
D 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
E 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
F the Gujarat Assembly. It is urged that the purpose is to target
a political opponent by engaging the process of the Court.
24. The rival submissions would now be analysed.
D Analysis
25. Mr Dave submitted that notice be issued formally in the writ
G
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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 57
[DR. D. Y. CHANDRACHUD, J.]

that in pursuance of the procedural directions which were issued during A
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
B
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 C
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 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
D
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 E
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
F
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. G
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. H
58 SUPREME COURT REPORTS [2018] 9 S.C.R.

A (1) When the officer in charge of a police station or some other
police officer specially empowered by the State Government in
that behalf receives information that 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
B
committed an offence, he shall immediately give intimation thereof
to the nearest Executive Magistrate empowered to hold inquests,
and, unless otherwise directed by any rule prescribed by the State
Government, or by any general or special order of the District or
Sub- divisional Magistrate, shall proceed to the place where the
C body of such deceased person is, and there, in the presence of
two or more respectable inhabitants of the neighbourhood, shall
make an investigation, and draw up a report of the apparent cause
of death, describing such wounds, fractures, bruises, and other
marks of injury as may be found on the body, and stating in what
manner, or by what weapon or instrument (if any); such marks
D
appear to have been inflicted.
(2) The report shall be signed by such police officer and other
persons, or by so many of them as concur therein, and shall be
forthwith forwarded to the District Magistrate or the Sub- divisional
Magistrate.
E (3) 1 When-
(i) the case involves suicide by a woman within seven years of
her marriage; or
(ii) the case relates to the death of a woman within seven years
of her marriage in any circumstances raising a reasonable
F suspicion that some other person committed an offence in relation
to such woman; or
(iii) the case relates to the death of a woman within seven years
of her marriage and any relative of the woman has made a request
in this behalf; or
G (iv) there is any doubt regarding the cause of death; or
(v) the police officer for any other reason considers it expedient
so to do, he shall. subject to such rules as the State Government
may prescribe in this behalf, forward the body, with a view to its
being examined, to the nearest Civil Surgeon, or other qualified
H medical man appointed in this behalf by the State Government, if
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 59
[DR. D. Y. CHANDRACHUD, J.]

the state of the weather and the distance admit of its being so A
forwarded without risk of such putrefaction on the road as would
render such examination useless.
(4) The following Magistrates are empowered to hold inquests,
namely, any District Magistrate or Sub- divisional Magistrate and
any other Executive Magistrate specially empowered in this behalf B
by the State Government or the District Magistrate.”
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 C
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. D
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 E
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 F
perspective. Hence it is the post-mortem report that 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
G
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
H
60 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.
B 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
C 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:
D “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
E in which the incident took place or the names of the accused
should be mentioned in the 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)”
F 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:
G “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
18
(1991) 3 SCC 627
19
(2006) 2 SCC 450
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 61
[DR. D. Y. CHANDRACHUD, J.]

has died under circumstances raising a reasonable suspicion that A
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.”
B
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 C
or suspicious 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.
D
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 E
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 F
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 G
judge Bench in Yogesh Singh v Mahabeer Singh23:

20
(2014) 12 SCC 419
21
(2016) 9 SCC 1
22
(2016) 15 SCC 448
23
(2017) 11 SCC 195 H
62 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “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
B
the apparent cause of death, namely, whether it is suicidal,
homicidal, accidental or caused by animals 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.,
C (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
D
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)
E 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
F 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
G 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
H empowered to hold an inquest shall hold an inquiry into the cause of
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 63
[DR. D. Y. CHANDRACHUD, J.]

death instead of or in addition to the investigation held by the police A
officer. In any other case mentioned in sub-section (1) of Section 174
the Magistrate may hold an inquiry. Sections 175 and 176 provide as
follows:
“175. Power to summon persons.
(1) A police officer proceeding under section 174, may, by order B
in writing, summon two or more persons as aforesaid for the
purpose of the said investigation, and any other person who appears
to be acquainted with the facts of the case and every person so
summoned shall be bound to attend and to answer truly all questions
other than questions the answers to which would have a tendency C
to expose him to a criminal charge or to a penalty or forfeiture.
(2) If the facts do not disclose a cognizable offence to which
section 170 applies, such persons shall not be required by the
police officer to attend a Magistrate’ s Court.
176. Inquiry by Magistrate into cause of death. D
(1) 2 when the case is of the nature referred to in clause (i) or
clause (ii) of sub- section (3) of section 174] the nearest
Magistrate- empowered to hold inquests shall, and in any other
case mentioned in sub- section (1) of section 174, any Magistrate
so empowered may hold an inquiry into the cause of death either E
instead of, or in addition to, the investigation held by the police
officer; and if he does so, he shall have all the powers in conducting
it which he would have in holding an inquiry into an offence.
(1A) Where –
F
a. any person dies or disappears, or
b. rape is alleged to have been committed on any woman,
while such person or woman is in the custody of the police or in
any other custody authorized by the Magistrate or the Court, under
this Code in addition to the inquiry or investigation held by the G
police, an inquiry shall be held by the Judicial Magistrate or the
Metropolitan Magistrate, as the case may be, within whose local
jurisdiction the offence has been committed.
(2) The Magistrate holding such an inquiry shall record the
H
64 SUPREME COURT REPORTS [2018] 9 S.C.R.

A evidence taken by him in connection therewith in any manner
hereinafter prescribed according to the circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an
examination of the dead body of any person who has been already
interred, in order to discover the cause of his death, the Magistrate
B may cause the body to be disinterred and examined.
(4) Where an inquiry is to be held under this section, the Magistrate
shall, wherever practicable, inform the relatives of the deceased
whose names and addresses are known, and shall allow them to
remain present at the inquiry.
C (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
D 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.”
E 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
F 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
G 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 attenda function.
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 65
[DR. D. Y. CHANDRACHUD, J.]

The person who admitted the patient is recorded as Shrikant D Kulkarni. A
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 B
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 C
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 D
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 E
statement of Dr Prashant B Rathi. The statement is to the effect that
the deceased was related 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 F
report (margkhabri) 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 G
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
H
66 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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 is no evidence of bodily injury. The dura and brain are found to
C 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
D
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
E 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 CrPC. The death report
contains a statement that PSI Warpade, the day duty officer on 1
F 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.
G 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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 67
[DR. D. Y. CHANDRACHUD, J.]

19 January 2015. On 5 February 2015 the Assistant Chemical Analyser A
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, B
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 C
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 D
PSI at Sadar police station addressed a letter to Government Medical
Hospital seeking a correction in the name of the deceased 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 E
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 F
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 G
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

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68 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 records that Judge
B
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
C 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
D 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
E for the procedure which is to be followed in conducting discreet inquiries.
In the present case, following the newsreports 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
F executive power.
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,
G 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 -
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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 69
[DR. D. Y. CHANDRACHUD, J.]

signed statements. A
44. The statement of Judge Kulkarni dated 24 November 2017 is
extracted below:
“Reference: Your letter No-COI/PA/Loya/DE/2017-165.
Sir, B
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 C
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. D
Accordingly, I alongwith 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.
On the night of 30th November, 2014 we attended reception E
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 F
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. G

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

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70 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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.
C 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
D 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.
E
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.”
The statement of Judge SM Modak, Principal District Judge, Pune dated
F 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,
G
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
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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 71
[DR. D. Y. CHANDRACHUD, J.]

requested me to give my say in the captioned matter. There is gap A
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
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. C

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 D
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. E
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.
F
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 G
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.
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72 SUPREME COURT REPORTS [2018] 9 S.C.R.

A m. In a car we took Judge Loya to Dande Hospital. After initial
checkup, 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.
B 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.
C r. Few Lordship have also attended the hospital. Further events took
place as per their directions.
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.
D
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.
E 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.”

F 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,
G 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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 73
[DR. D. Y. CHANDRACHUD, J.]

Civil Judge, should come to Ravi Bhavan Govt. Guest House, A
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 B
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. and
D.M., as a Doctor at Meditrina Multispecialty Hospital, whom he C
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 D
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 E
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 F
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. G
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

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74 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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,
B 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.
C 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.”
D
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
E 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 5th Civil Judge Shri V C Barde phoned
me on mobile and asked for my help by stating that Judge Loya is
F 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
G
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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 75
[DR. D. Y. CHANDRACHUD, J.]

Nagar i.e. Dr Dande Hospital that hospital was on 1 st Floor and A
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
B
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 C
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
D
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 E
this. Hence this say.”
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 F
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. G
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
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76 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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
C 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
D
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
E 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
F
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
G submitted that the statements of the judicial officers cannot be regarded
as independent, in view of the fact that 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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 77
[DR. D. Y. CHANDRACHUD, J.]

plea at variance with what was stated by the two judges of the High A
Court. He urged that disciplinary action should be initiated against the
two High Court judges. This submission is preposterous. It constitutesan
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
B
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 C
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.
D
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 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 E
of Ravi Bhavan. This line of argument is without merit. Judge Loya, as
the statements of Judge Kulkarni and Judge S M 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 F
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 G
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
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78 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
contacted him on phone and it was at his suggestion that the judges took
a decision to shift Judge Loya to Meditrina. To 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
C 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-
D
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
E 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
F 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 hospital. Judge
Vijay Barde who was present at Dande hospital specifically stated that
G 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
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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 79
[DR. D. Y. CHANDRACHUD, J.]

progress notes at Meditrina hospital. The death summary (extracted A
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
B
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 C
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 D
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 the E
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 F
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 G
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
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80 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B has been urged to cast doubt on the sequence of events as set out in the
statements of the four 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
C 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
D 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
E 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
F 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 Nagpur, attended the wedding and
remained in the company of each other and their friends in the judicial
fraternity.
G 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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 81
[DR. D. Y. CHANDRACHUD, J.]

surmises. The occupancy register does show that the room was in the A
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
B
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 C
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 D
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 E
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 F
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, G
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,

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82 SUPREME COURT REPORTS [2018] 9 S.C.R.

A since they relate to events which took place after his death. But it is
necessary in the present judgment to discuss the submissions because
ona 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
B
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
C 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
D
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
E 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
F 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 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.”
G
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

H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 83
[DR. D. Y. CHANDRACHUD, J.]

colleague who in December 2014 was the Member Secretary of A
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
B
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 C
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
D
veracity of the natural account of the above three judicial officers (Judge
Kulkarni, Judge Modak and Judge Barde). The court is requested to do
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 E
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
F
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 G
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.
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84 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 in its decision in CBI v Amitbhai
Anil Chandra Shah (supra), JT Utpat who was nominated by the
B
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
C 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
D
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
E 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
F 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 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
G 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.

H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 85
[DR. D. Y. CHANDRACHUD, J.]

61. During the course of his submissions in rejoinder, Mr Dave A
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
B
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 C
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 face of the contemporaneous documentary
D
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 E
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, F
Nagpur,
3 Mr Niranjan Takle, Reporter of CARAVAN,
4 Shri Srikant D Kulkarni, Member Secretary, Maharashtra State
Legal Service Authority,
G
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,
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86 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.”
B 63. Order IX of the Supreme Court Rules 2013 deals with
Affidavits. Rules 1 and 2 provide as follows:
“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
C 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
D 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
E 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
F 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
G 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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 87
[DR. D. Y. CHANDRACHUD, J.]

filing of those affidavits, they should be produced for cross-examination A
by him. In support of his 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 B
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 C
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 D
cogent reason for refusing to entertain the petition under Article
32 on the ground that it involves disputed questions of fact.”
In CS Rowjeev 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 E
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 F
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 G
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

24
(1964) 6 SCR 331
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88 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 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
B
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.
C 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
D 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
E 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
F 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.
Intervention by Centre for Public Interest Litigation
64. Mr Prashant Bhushan appeared in these proceedings at the
G 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
25
(1997) 3 SCC 216
26
H I.A.No.31086 of 2018
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 89
[DR. D. Y. CHANDRACHUD, J.]

represents as counsel has sought to intervene by an application26. The A
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
B
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 C
Bhushan himself addressed an 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
D
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 E
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 F
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 G
a letter seeking a clarification from Dr RK Sharma. The letter extracts
the following reply sent by Dr RK Sharma to AIIMS:
“Thanks for your mail, I would like to state that I have been grossly
misquoted by Caravan magazine regarding death of Judge Loya.
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90 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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
C 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.”
D
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:
E
“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
F with the interaction with the doctors who conducted the post-
mortem, for medico legal opinion, since 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
G 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
H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 91
[DR. D. Y. CHANDRACHUD, J.]

to Dr Harish Pathak, Professor and Head of the Department of Forensic A
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
B
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: C

“I have carefully perused the following documents:
1. Autopsy note of Shri Loya
2. ECG report
D
3. Histopathology report.
4. ADR.
5. Panchnama.
6. C.A. Report.
E
7. Statement of Dr Rathi, Dr Gavande, Dr Harkut, Dr Ganar.
8. Hospital (Meditrina) reports (Progress notes & MLC).
9. Two Articles from the Caravan magazine dated 26/01/18 &
11/02/18.
F
Based upon all the documents made available to me and the recent
medical literature, I would like to state as under:
1. As per Doctor’s progress notes of Meditrina Hospital
(Annexure, 1 Page 1) and statement given by Dr Pankaj
Harkut (Annexure 2, Page 2),
G
On 01st December 2014, at around 04 am (As per Autopsy
notes). When Mr Brijgopal H Loya complained of chest pain
and restrosternal pain. (Doctor progress Notes Annexure 1)
According to Principles of Internal Medicne, Harrison,
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92 SUPREME COURT REPORTS [2018] 9 S.C.R.

A (Annexure 3, Page 4) Chest discomfort is among the most
common reasons for which patients present for medical attention
at either an emergency department or an outpatient clinic.
Retro-sternal pain is the typical clinical feature of myocardial
ischemia (Annexure 3, Table on Page 5). Chest discomfort
associated with Myocardial Infraction is typically more severe,
B
is prolonged usually lasting more than 30 minutes and is not
relieved by rest (Annexure3, Page6).
According to Oxford Dictionaries, (URL:https://
oxforddictionaries.com/definition/us)
C Retro-sternal: Behind the breastbone. (Annexure 4, Page7)
(Retrosternal chest pain is pain felt behind the sternum bone-a
flat bone located in the middle of the chest. This bone may
also referred to as the breastbone)
Myocardium: The muscular tissue of the heart. (Annexure5,
D Page 8)
Ischemia :An inadequate blood supply to an organ or part of
body, especially heart muscles. (Annexure 6, Page 9)
Infraction: Obstruction of the blood supply to an organ or region
of tissue, typically by thrombus or embolus, causing local death
E
of tissue. (Annexure 7, Page 10)
2. The ECG showed tall “T-waves” in the anterior leads. This
is consistent with the history indicative of myocardial ischemia.
According to Principles of Internal Medicine, Harrison,
F 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
G 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,

H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 93
[DR. D. Y. CHANDRACHUD, J.]

Annexure 17, Page 34) A
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), B
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 C
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, D
Page 33)
The body was shifted to Government Medical College mortuary
and Panchnama was done wherein no external marks of injuries
were noted.
E
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
F
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. G

7A “Dura congested”
According to Snell’s Textbook of Anatomy, Dura is a fibrous

H
94 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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.
C
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
D 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
E
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
F
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.
G
7D. “Abdomen- All organs were congested and stomach
contains 10 ml of yellowish juicy material, with no peculiar
odour” – No comment required.
8. Routine vescera were preserved for chemical analysis and
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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 95
[DR. D. Y. CHANDRACHUD, J.]

the report of the same did not reveal any presence of poison. A
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.
B
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 C
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 D
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) E
· 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 F
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 G
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
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96 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B can be blocked by the dislodges thrombus and I find no merit
in it and disagree with this opinion.
8.3 Once person alive for 30 minutes after symptoms condition
of heart will have clear signs, (The Caravan, Annexure
19, Page 47)
C
· 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
D 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)
E · 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.
F
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
G (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.
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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 97
[DR. D. Y. CHANDRACHUD, J.]

· When clothes are put back on the body after autopsy by the A
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 B
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. C

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 D
of congestions of almost all the organ is an expected finding.
In fact, congestion is such a common and nonspecific finding
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, E
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 F
would be unreasonable and unjustifiable to doubt sanctity of
evidence.
8.8The 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,
G
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.
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98 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.
B
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
C 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.”
D
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 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
E 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
F 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
G 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

H
TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 99
[DR. D. Y. CHANDRACHUD, J.]

under Section 482 of the Cr PC (Criminal Application 824 of 2014) before A
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 Fadnav is, the Chief Minister of Maharashtra.
The case relates to an incident which took place on 7 June 1991 on
B
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 C
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 D
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 E
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 F
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 G
position to maintain peace and harmony in the area where they
reside.”

27
(2014) 6 SCC 466
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100 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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
C 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
D 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
E 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.
Public Interest Litigation

F 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
G 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
28
(1984) 3 SCC 161
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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 101
[DR. D. Y. CHANDRACHUD, J.]

rights. Public interest litigation has been entertained by relaxing the rules A
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
B
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 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 C
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 D
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 E
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 F
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 G
steps to prevent and cure its abuse on the basis of monetary and
non-monetary directions by the courts.”
73. The misuse of public interest litigation is a serious matter of
29
(2010) 3 SCC 402
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102 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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
C 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
D
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
E out of office. Courts resolve disputes about legal rights and entitlements.
Courts protect the rule of law. There is a 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
F 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
G 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

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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 103
[DR. D. Y. CHANDRACHUD, J.]

scurrilous allegations. Absent any tittle of proof that they are conspirators A
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 B
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 been called upon to issue a notice of
contempt to the judges on the Committee at the relevant time. Ms Jaisingh
as joined the fray by requesting that this court to issue contempt notices C
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 D
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 E
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 F
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 G
civilities between or towards judges is distinct from the fiercely
independent role 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

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104 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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
C 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.
D
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.
E Conclusion
77. For the above reasons, we have come to the conclusion that
E 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.
F
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
G 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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TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR. 105
[DR. D. Y. CHANDRACHUD, J.]

80. The transferred cases and pending applications, if any, are A
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 B
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 C
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 today stands concluded and the High Court would D
be at liberty to deal with other issues raised in the petition/case.
82. Ordered accordingly.

Divya Pandey Matters disposed of. E

F

G

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
H