Document Fragment View

Matching Fragments

2 Since the petitions are founded on the two articles published in Caravan, it would be necessary to extract them in this judgment:

(i) Caravan article dated 20 November 2017:
“On the morning of 1 December 2014, the family of 48-year-old judge Brijgopal Harkishan Loya, who was presiding over the Central Bureau of Investigation special court in Mumbai, was informed that he had died in Nagpur, where he had travelled for a colleague’s daughter’s wedding. Loya had been hearing one of the most high-profile cases in the country, involving the allegedly staged encounter killing of Sohrabuddin Sheikh in 2005. The prime accused in the case was Amit Shah—Gujarat’s minister of state for PART A home at the time of Sohrabuddin’s killing, and the Bharatiya Janata Party’s national president at the time of Loya’s death. The media reported that the judge had died of a heart attack.
Brijgopal Harkishan Loya was appointed to the special CBI court in June 2014, after his predecessor, JT Utpat, was transferred within weeks of reprimanding Amit Shah for seeking an exemption from appearing in court. According to a February 2015 report in Outlook, “During the CBI court’s hearings that Utpat presided over for this one year, or even after, court records suggest Amit Shah had never turned up even once—including on the final PART A day of discharge. Shah’s counsel apparently made oral submissions for exempting him from personal appearance on grounds ranging from him being ‘a diabetic and hence unable to move’ to the more blase: ‘he is busy in Delhi.’” The Outlook report continued: “On June 6, 2014, Utpat had made his displeasure known to Shah’s counsel and, while allowing exemption for that day, ordered Shah’s presence on June 20. But he didn’t show up again. According to media reports, Utpat told Shah’s counsel, ‘Every time you are seeking exemption without giving any reason.’” Utpat, the story noted, “fixed the next hearing for June 26. But on 25th, he was transferred to Pune.” This was in violation of a September 2012 Supreme Court order, that the Sohrabuddin trial “should be conducted from beginning to end by the same officer.” Loya had at first appeared well disposed towards Shah’s request that he be exempted from personally appearing in court. As Outlook noted, “Utpat’s successor Loya was indulgent, waiving Shah’s personal appearance on each date.” But this apparent indulgence may just have been a matter of procedure. According to the Outlook story, “significantly, one of his last notings stated that Shah was being exempted from personal appearance ‘till the framing of charges.’ Loya had clearly not harboured the thought of dropping charges against Shah even when he appeared to be gentle on him.” According to the lawyer Mihir Desai, who represented Sohrabuddin’s brother Rubabuddin—the complainant in the case—Loya was keen on scrutinising the entire chargesheet, which ran to more than 10,000 pages, and on examining the evidence and witnesses carefully. “The case was sensitive and important, and it was going to create and decide the reputation of Mr Loya as a judge,” Desai said. “But the pressure was certainly mounting.” Nupur Balaprasad Biyani, a niece of Loya’s who stayed with his family in Mumbai while studying in the city, told me about the extent of the pressure she witnessed her uncle facing. “When he was coming from the court, he was like, ‘bahut tension hai,’” she said. “Stress. It’s a very big case. How to deal with it. Everyone is involved with it.” Nupur said it was a question of “political values.” Desai told me, “The courtroom always used to be extremely tense. The defence lawyers used to insist on discharging Amit Shah of all the charges, while we were demanding for the transcripts of the calls, submitted as evidence by the CBI, to be provided in English.” He pointed out that neither Loya nor the complainant understood Gujarati, the language on the tapes.
“..in order to make sure that justice is not only done, but also is seen to be done and considering the involvement of the State police authorities and particularly the high officials of the State of Gujarat, we are compelled even at this stage to direct the CBI Authorities to investigate into the matter.”

4 (1991) 4 SCC 406 5 (2010) 2 SCC 200 PART C After this court directed a CBI investigation into the killings of Sohrabuddin and his wife Kauserbi, a charge-sheet was submitted against a number of accused including Amit Shah, the then Minister of State for Home in the State of Gujarat. Subsequently, in Narmada Bai v State of Gujarat6 this Court directed a separate investigation by the CBI into the killing of Tulsiram Prajapai, which, it has been submitted, was a part of the conspiracy to kill Sohrabuddin and Kauserbi. In issuing these directions, this Court held thus:

(j) The transfer of the earlier judge, Judge Utpat a day before the hearing of the Sohrabuddin trial in the teeth of the judgment in CBI v Amitbhai Anil Chandra Shah14; and

(k) The fact that the incoming judicial officer after Judge Loya’s death discharged one of the accused within a month of his assuming charge. 

C         Mr PV Surendranath:



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

India Lawyers’ Union, an intervenor, submitted that the scope of the present hearing is only confined to the death of Judge Loya on 1 December 2014 and 14 (2012) 10 SCC 545 PART C does not extend to the “Sohrabuddin fake encounter case trial..or its trajectory; the transfer of the predecessor officer etc.” Relying on the decision of this Court in Vineet Narain (supra), Mr Surendranath submitted that the setting up of a Special Investigation Team is warranted, having regard to the nature of the crime in the Sohrabuddin case, the status of the accused, circumstances which led to the transfer of the proceedings from Gujarat to Maharashtra; the discharge of some of the accused after a new judicial officer took charge upon the death of Judge Loya and the absence of security for Judge Loya at the relevant time. In his submissions, the contradictory versions given by close relatives of the deceased judge is in itself a reason to order a formal investigation under the Cr PC by registering an FIR.