Review and recall ‘erroneous’ order in Judge Loya case: Bombay Lawyers Association

In a Review petition filed in the Supreme Court, Bombay Lawyers Association has pleaded for the recall of the court’s order of April 19 dismissing petitions demanding an independent enquiry into the mysterious death of CBI Special Judge B.H. Loya in December, 2014 at Nagpur.

The three-judge bench comprising the Chief Justice Dipak Misra, Justice Khanwilkar and Justice Chandrachud had pulled up the petitioners for misusing the judicial process and launching a frontal attack on the independence of the judiciary. The court had castigated the petitioners for doubting the statements given by Bombay High Court judges to Maharashtra Police that judge Loya had died of a heart attack.

The Review Petition pleads that the conclusions drawn by the Supreme Court were unwarranted and erroneous and deserved to be recalled and reviewed. In support of its contention, the Association submitted the following arguments:

1. The Association had not approached the Supreme Court but had filed a petition in the Bombay High Court. It was the Supreme Court which ordered the petition to be transferred to it.
2. The petition had sought an independent enquiry into the judge’s death, which could not have been construed as misuse of the judicial process.
3. The Government of Maharashtra had no reason to refuse and resist such an enquiry.
4. The Government of Maharashtra ordered a departmental enquiry on November 23, 2017, four days after Caravan magazine published a report raising doubts about the death.
5. Maharashtra’s Commissioner, Intelligence submitted his report on November 28 without personally meeting any one concerned with the case.
6. While the report in Caravan magazine had mentioned the name of only one judge, Judge Barde, the Commissioner, Intelligence wrote a letter to the Chief Justice of the Bombay High Court seeking statements of five judges.
7. The five judges addressed a section of the media on November 27, a day before the Commissioner submitted his report, which reproduced what the judges had said.
8. The Maharashtra Government erred by not filing an affidavit or a counter-affidavit to the petitions and the Supreme Court erred by relying upon the unaffirmed report of a police officer and by denying an opportunity to the petitioners to cross-examine the judges.
9. The petition points to the Catch-22 situation in which had the Association accepted the Commissioner’s report, its petition for an enquiry would have been dismissed. But by questioning and assailing the report, the Association attracted the ire of the Supreme Court for allegedly diluting the credibility of judicial institutions.
10. The Supreme Court also erred in not serving a notice to Caravan magazine, by not summoning the father, son and sisters of the deceased judge Loya and by not calling for the full video-recorded interview to Caravan by them.

The dismissal of the petition for an independent probe, the Review Petition pleads, was also erroneous because it was based on the premise that the statements given by the five judges to police ‘must be accepted and cannot be questioned by anybody’.

The apex court also overlooked the fact that several lawyers representing the state of Maharashtra had also represented one of the accused in the case being handled by judge Loya at the time of his death.