# TEHSEEN POONAWALLA v. UNION OF INDIA AND ANR

- **Citation:** [2018] 9 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2018-04-19
- **Bench:** Dipak Misra, A.M. Khanwilkar, Dr. D.Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tehseen-poonawalla-v-union-of-india-and-anr-33812
- **Pages:** 105

## Headnote

Constitution of India - Art.32 - Judge Loya death case -
Writ petitions seeking inquiry into the circumstances of the death of
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
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
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
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
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
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[2018] 9 S.C.R.
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
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 - Crossexamination 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
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 crossexamined - Held: Under Or.IX of the 2013 Rules discretion is vested
in the court to allow cross-examination of a person who has filed
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 crossexamination has been sought is a witness in the present proceedings
- Petitioners cannot assert as of right that they should be allowed
to cross-examine - No justification to allow the request for crossexamination - Constitution of India - Art.32.
Public Interest Litigation - Purpose of, and its misuse -
Discussed - Constitution of India - Arts.32 and 226.
Judicial Discipline - Recusal of Judges - Held: A decision
as to whethe

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[2018] 9 S.C.R. 1
 1
 TEHSEEN POONAWALLA
v.
UNION OF INDIA AND ANR.
(Writ Petition (Civil) No. 19 of 2018)
APRIL 19, 2018
[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
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
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
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
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
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
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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
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 - Crossexamination 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
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 crossexamined - Held: Under Or.IX of the 2013 Rules discretion is vested
in the court to allow cross-examination of a person who has filed
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 crossexamination has been sought is a witness in the present proceedings
- Petitioners cannot assert as of right that they should be allowed
to cross-examine - No justification to allow the request for crossexamination - Constitution of India - Art.32.
Public Interest Litigation - Purpose of, and its misuse -
Discussed - Constitution of India - Arts.32 and 226.
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
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'AS', National President of the Bharatiya Janata Party (then
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
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
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
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
of having died under circumstances raising a reasonable suspicion
that some other person has committed an offence. In any of these
situations, the police officer is required to furnish intimation
immediately to the nearest Executive Magistrate who is
empowered to hold inquests. He is required to proceed to the
place where the body is situated and in the presence of two
witnesses to make an investigation and draw up a report of the
apparent cause of death. The report would describe the wounds
including marks of injury which are found on the body and in what
manner or by what weapon or instrument if any they appear to
have been inflicted. The purpose of holding an inquest is limited.
The inquest report does not constitute substantive evidence.
Hence matters relating to how the deceased was assaulted or
who assaulted him and under what circumstances are beyond the
scope of the report. The report of inquest is primarily intended
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to ascertain the nature of the injuries and the apparent cause of
death. On the other hand, it is the doctor who conducts a postmortem 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]
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
(iv) deals with a situation where there is any doubt regarding the
cause of death while clause (v) deals with a case where the police
officer considers it expedient to do so. Sub-section (4) of Section
174 specifies that the District Magistrate, Sub-Divisional
Magistrate and any other Executive Magistrate especially
empowered may hold inquests. Under Section 175, the police
officer proceeding under Section 174 is empowered to summon
for the purposes of the investigation any person who appears to
be acquainted with the facts of the case. Under Section 176,
where the case is of the nature specified in clauses (i) or (ii) of
sub-section (3) of Section 174, the nearest Magistrate empowered
to hold an inquest shall hold an inquiry into the cause of death
instead of or in addition to the investigation held by the police
officer. In any other case mentioned in sub-section (1) of Section
174 the Magistrate may hold an inquiry. [Para 31] [62-E-H]
The submissions analysed
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
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
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procrastinate or delay the submission of their statements. There
is no basis whatsoever to make any imputation against the four
officers of the state judiciary. They were present with Judge Loya
at Nagpur to attend a wedding in the family of a colleague. Each
of them responded, as judges of the district judiciary, to the
permission which was granted by the Chief Justice of the High
Court to the Commissioner, SID to record their say. The judges
have spoken about the facts of the case as they could recall, with
details. Each of the judges has spoken in detail of the facts and
events which were within their personal knowledge. The
statements contain matters of detail which would be known to
those who were present with Judge Loya. They have a ring of
truth. They had nothing to conceal nor an axe to grind. 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.
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
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
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
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
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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
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
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
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
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
'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
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'
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made the same statement. The progress notes also noted a "tall
'T'" in the anterior lead which indicates that the ECG was seen
by the doctors attending to Judge Loya at Meditrina hospital.
These progress notes are contemporaneous, since they also form
part of the communication addressed by the doctor at Meditrina
to the PSI at Sitabardi (within whose jurisdiction Meditrina
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
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
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, EF]
1.5 Judge 'M' in his statement observed that he and Judge
'K' 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. 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?
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
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]
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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
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
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
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
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
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
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
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together with the judges who had accompanied him to Nagpur.
[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,
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
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
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
'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
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
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
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to the family. Judge Loya had died. If a considered decision was
taken by the members of his family to proceed to Gategon instead
of travelling first to Nagpur and then traversing a distance of
nearly 450 kilometres by road to the place where the funeral was
to be held, such a decision has to be respected. Moreover, the
allegation that the body was sent unaccompanied to Gategaon is
contrary to what has emerged on the record. Judge '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
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
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
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
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
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
Affidavits. Rule 1 empowers the court to allow facts to be proved
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on affidavit for sufficient reason. However, if the court is of the
view that the production of a witness for cross-examination has
been desired by a party bona fide and that such a witness can be
produced, an order shall not be made authorising the evidence
of the witness to be given by affidavit. Under rule 2, a discretion
is vested in the court to order the attendance for crossexamination 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
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
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
to whether the inquiry which has been conducted by the State is
vitiated and if circumstances have been brought to the notice of
the court which cast a reasonable suspicion about the events
leading upto the death of Judge Loya. The petitioners cannot
assert as of right that they should be allowed to cross-examine a
host of persons including the doctors and judicial officers. By
casting unfounded aspersions on the judicial officers who had
accompanied Judge Loya, the petitioners have revealed the real
motive of these proceedings which is to bring the judiciary into
disrepute on the basis of scurrilous allegations. There is no basis
or justification to allow the request for cross-examination. The
application shall accordingly stand rejected. [Paras 63] [86-B, EG; 88-C-F]
Intervention by Centre for Public Interest Litigation
3. The facts have emerged from the record which indicate
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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,
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
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
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
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
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
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
tool to espouse the cause of the marginalised and oppressed.
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Indeed, that was the foundation on which public interest
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
is that a citizen may approach the court to ventilate the grievance
of a person or class of persons who are unable to pursue their
rights. Public interest litigation has been entertained by relaxing
the rules of standing. The essential aspect of the procedure is
that the person who moves the court has no personal interest in
the outcome of the proceedings apart from a general standing as
a citizen before the court. This ensures the objectivity of those
who pursue the grievance before the court. Environmental
jurisprudence has developed around the rubric of public interest
petitions. Environmental concerns affect the present generation
and the future. Principles such as the polluter pays and the public
trust doctrine have evolved during the adjudication of public
interest petitions. Over time, public interest litigation has become
a powerful instrument to preserve the rule of law and to ensure
the accountability of and transparency within structures of
governance. Public interest litigation is in that sense a valuable
instrument and jurisdictional tool to promote structural due
process. This jurisdiction is capable of being and has been brazenly
mis-utilised by persons with a personal agenda. At one end of
that spectrum are those cases where public interest petitions
are motivated by a desire to seek publicity. At the other end of
the spectrum are petitions which have been instituted at the
behest of business or political rivals to settle scores behind the
facade of a public interest litigation. The true face of the litigant
behind the façade is seldom unravelled. 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
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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legitimate expectation of early justice. It is a travesty of justice
for the resources of the legal system to be consumed by an
avalanche of misdirected petitions purportedly filed in the public
interest which, upon due scrutiny, are found to promote a personal,
business or political agenda. This has spawned an industry of
vested interests in litigation. There is a grave danger that if this
state of affairs is allowed to continue, it would seriously denude
the efficacy of the judicial system by detracting from the ability of
the court to devote its time and resources to cases which
legitimately require attention. Worse still, such petitions pose a
grave danger to the credibility of the judicial process. This has
the propensity of endangering the credibility of other institutions
and undermining public faith in democracy and the rule of law.
This will happen when the agency of the court is utilised to settle
extra-judicial scores. Business rivalries have to be resolved in a
competitive market for goods and services. Political rivalries
have to be resolved in the great hall of democracy when the
electorate votes its representatives in and out of office. Courts
resolve disputes about legal rights and entitlements. Courts
protect the rule of law. There is a 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;
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
good faith has been sought to be created by submitting that the
true purpose of seeking an inquiry into the circumstances relating
to the death of Judge Loya is to protect the district judiciary. But
as the submissions have evolved, it has become clear that the
petition is a veiled attempt to launch a frontal attack on the
independence of the judiciary and to dilute the credibility of
judicial institutions. Judicial review is a potent weapon to
preserve the rule of law. However, here 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
vulnerable to wanton attacks on their independence. Supreme
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Court would be failing in its duty if it were not to stand by them.
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
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
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,
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
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
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
is based on its moral authority. It is with that firm belief that the
jurisdiction in contempt has not been invoked. [Paras 74-76] [102E-H; 103-A-C, E-H; 104-A-D]
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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
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]
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).
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
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]
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
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.
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Delhi Judicial Service Association, Tis Hazari Court,
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
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
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
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
SCC 466 - referred to.
Case Law Reference
[1991] 3 SCR 936
referred to
Para 11
[2010] 1 SCR 991
referred to
Para 11
[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
[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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(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.