The questions raised by the immediate
family members of Judge B.H. Loya about his sudden death in December 2014 may
or may not have easy answers, but they have raised anew lingering misgivings
over the discharge of BJP president Amit Shah in the Sohrabuddin Sheikh fake
encounter case.
Caravan magazine last week reported the
family’s questions about the circumstances of Loya’s death due to
cardiac arrest. While the Indian Express on Monday quoted two
judges of the Bombay high court, as well as the two hospitals in Nagpur who
attended to him, to say there was nothing suspicious about the death, the paper
noted that family members continue to harbour doubts.
As the CBI did not appeal the December 30,
2014, decision by Judge M.B. Gosavi – who took over the case from Loya – to
discharge Shah, Sohrabuddin’s brother, Rubabuddin Sheikh, challenged it in the
Bombay high court. Rubabuddin, for inexplicable reasons, withdrew his challenge
on October 5, 2015. The Bombay high court allowed him to do so on November 23,
2015, after satisfying itself that he was doing so voluntarily.
The high court judgment shows
that it gave Rubabuddin enough time to reflect on his decision and change it if
necessary. The high court judges, before accepting his application for
withdrawal, heard him in the chamber to ascertain whether it was indeed
voluntary. The high court recorded its satisfaction that the withdrawal was not
made under threat, pressure, inducement or promise.
The withdrawal by Rubabuddin first provoked a
third party, Rajesh M. Kamble, to challenge Gosavi’s discharge of Shah. Kamble
claimed that he was doing so in his capacity of being ‘an alert citizen’. The
high court dismissed his challenge on October 21, 2015.
Social activist Harsh Mander then felt the
need to challenge the discharge of Shah. He filed another application in the
high court during the pendency of Rubabuddin’s withdrawal application. Mander
claimed that he was doing so because the crime, being a gross case of custodial
murder, inflicted violence, trauma, fear and loss not only on the interested
parties but also on the entire law-abiding society.
Mander also claimed that though there was
sufficient prima facie material to proceed against Shah, the
CBI did not challenge the discharge order, which resulted in the abuse of the
processes of law and a gross failure of justice. Mander contended that as
Rubabuddin had sought to withdraw his revision application as well as the
application for condonation of delay, it was left to concerned citizens to
pursue the matter in order to ensure justice in the larger interest of society.
Mander alleged that Rubabuddin’s withdrawal of the revision application
appeared to be suspicious – and that it might have been made under threat,
inducement or promise.
It is interesting to note that in response to
Mander’s application, Shah advanced technical arguments. His counsel, K.V.
Raju, referred to the dismissal of Kamble’s petition, which was similar in
nature, and said Mander had suppressed this material fact. It was his
contention that Mander had approached the court with unclean hands.
Mander’s counsel, Anand Grover, had then told
the high court that the relief sought by Kamble was entirely different from the
relief sought by Mander. The high court agreed with Grover and refused to
dismiss Mander’s petition on the ground of suppression of material facts.
But the high court referred to its order
dismissing Kamble’s petition, holding that he was neither a victim nor an
aggrieved person. The high court had further held that Kamble had not
demonstrated that his legal rights were impaired or that any harm or injury was
caused to him or likely to be caused due to Rubabuddin’s withdrawal petition
being accepted. The high court, therefore, held that Kamble, as the intervenor,
had no legal right to intervene in the proceedings.
High court’s inherent jurisdiction
Grover submitted to the high court that the
withdrawal application by the aggrieved party prompted Mander, a concerned
citizen, to file his application invoking the inherent powers of the high court
under Section 482 of the Code
of Criminal Procedure in order to challenge the discharge order.
The high court held that the case did not
involve the issue of locus standi of a third party/stranger
for setting criminal law in motion. The issue, the high court said, was whether
Mander, who was a total stranger to the proceedings, could invoke the powers of
Section 482 to challenge the discharge order, on which there was no exact
precedent.
Having said that, the high court concluded
that Mander was neither a victim nor an aggrieved person. He did not suffer any
prejudice or demonstrate that his legal rights were impaired or any harm/injury
was caused to him or was likely to be caused, the high court held. “The applicant
has thus not been able to demonstrate that his legal right has been invaded so
as to give him locus standi to challenge the order,” the court said.
In other words, while the high court agreed
that locus standi of a third party/stranger is not required for setting the
criminal law in motion, it could not explain why it should be mandatory for an
application seeking the invoking of the inherent power of the high court to
challenge a discharge order.
Not a rare case?
Instead, the high court faulted Mander for
not setting the criminal law in motion against Shah, before the Supreme Court
intervened on the basis of Rubabuddin’s letter of grievance and constituted the
special investigation team (SIT). The high court also asked Mander why he did
not challenge the discharge order within the period of limitation, although it
was about to consider Rubabuddin’s application for condoning a similar delay
before he withdrew his.
Lastly, although it was clear that Shah was
the most powerful of all the accused, the court asked Mander to explain why he
had restricted his prayer for relief only against the discharge of Shah, and
not against the other persons accused in the case. “The social interest and
responsibility proclaimed by the applicant is thus restricted only to the
relief sought against the respondent No.1 (Amit Shah) and does not even extend
to other accused in the said case much less having larger implications beyond
the case,” the high court made a tongue-in-cheek remark.
The fact that Mander showed a sudden interest
in the matter after a period of over ten years from the principal incident –
the fake encounter which took place in 2005 – was an indication of his lack of
bonafide, the high court concluded. “Needless to state, criminal law cannot be
permitted to be used as an instrument to wreck vengeance due to personal or
political grudge or to spite the accused for any other oblique purpose,” the
high court added, as if giving a clean chit to Shah.
“This is not one of those rare cases which
brings about a situation which is an abuse of the process of the court, which
necessitates exercise of inherent jurisdiction,” the high court concluded while
dismissing Mander’s application.
Had the family members’s doubts over the
cause of Loya’s death been revealed prior to the high court’s judgment,
would it have been sufficient for the high court to conclude that it was indeed
one of those rare cases?
Supreme Court’s double standards
Unfortunately, the Supreme Court, which heard
Mander’s special leave petition against the high court’s judgment, dismissed it on August 1 last year
after hearing his counsel, Kapil Sibal, for half an hour, without a reasoned
judgment. Media reports of the proceedings, however,
show that the bench of Justices S.A. Bobde and Ashok Bhushan questioned
Mander’s locus standi in the case.
Mander’s review petition was also dismissed by the same bench, by
circulation in chambers, on October 19 last year.
Again, the question of whether the outcome in
the Supreme Court would have been different had the family’s questions about
the circumstances surrounding Judge Loya’s death come to light prior to the
dismissal of Mander’s petitions, lingers.
It is also worth contrasting the Supreme
Court’s dismissal of Mander’s appeal on the ground that he lacked locus standi
with the Supreme Court’s inclination to hear the
special leave petition filed against the Bombay high court’s judgment
dismissing the plea to reopen the Mahatma Gandhi assassination case. Why was
the locus standi of the appellant, Pankaj Phadnis, not addressed by the Supreme
Court at the preliminary stage, even while it raised questions about Tushar
Gandhi intervening in the case? Although the court has not yet issued
a notice in the matter, it has underlined its importance by appointing
an amicus curiae in the case and requesting his report before
proceeding further.
The questions Loya’s father and sisters have
raised about the death of the judge only strengthen the case for the Supreme
Court to recall its order dismissing Mander’s appeal last year.-The
Wire
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