The top court said this after the Bombay lawyers' Association, which has filed a petition seeking independent probe into the alleged mysterious death of Special CBI judge B H Loya, argued that it was a deliberate attempt to remove Justice Revati Mohite-Dere of the Bombay High Court from hearing the appeals in the Sohrabuddin Sheikh fake encounter case.
"Your arguments may not be correct. It is a routine affair in Bombay High Court which is part of its established tradition there. Every 8-10 weeks the roster changes and no judges are allowed to hear a part-heard matter," said a bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud.
Senior advocate Dushyant Dave, appearing for the lawyers' body, said that a new development has taken place in Bombay High Court recently in which Justice Revati Mohite-Dere, who was hearing the Sohrabuddin Sheikh fake encounter case and asked searching and intriguing questions from the CBI was assigned to hear bail and anticipatory bail applications.
"Those judges, who stood in the way were punished and those who have dealt were awarded. This was a deliberate attempt to take away the case from the judge in the name of roster change," Mr Dave said.
To this, Justice Chandrachud said that he has served in the Bombay High Court and knows the practice of roster change there and which is not common among other high courts of the country.
"Many a times a judge hearing the bail matters or say appeals would like to have change of the roster. There are sometimes personal issues or sometimes institutional issues but in any case part-heard matters are never assigned to the same judge. When I became Chief Justice of Allahabad High Court, the roster system was introduced. Being a Chief Justice you have to sometimes take a considered decision," Justice Chandrachud said.
Mr Dave said that this is a very "serious and complex" case in which "things cannot be wished away" as 30 witnesses have turned hostile till now, 12 persons were discharged by the trial court and CBI "conveniently" filed appeals against the discharge of only six, who were about to give the statements.
"Two sitting judges of the Bombay High Court gave interview in media saying there was no wrong doing in Loya case. Now which district judge has the courage to go against the judges of higher judiciary including one who is in the high court collegium", the senior advocate said.
The court responded, saying, "Your argument that interview of high court judges have influenced the opinion of district judges may not be correct as the statements were given by the judges to intelligence commissioner on November 24, 2017, while the interview was published in the media on November 27, 2017".
The bench observed it is "not wishing away from anything" and it "would not pass any bad-faith judgements against any high court or district judges without looking at the relevant materials" in connection with the death of the special CBI judge.
It however, said that if the petitioners are able to satisfy it that "there is even slightest of suspicion" which "shakes the conscience of court" then it may order independent investigation.
Mr Salve said that Mr Dave was accusing the judges and that the court should not allow such type of insinuation to be made.
"Yes, I am making the allegation with all seriousness. Judges of Bombay High Court are giving interviews that Judge Loya died of heart attack three years ago. Sitting judges are not holy cows," Mr Dave said and later added that Salve was respected member of bar and a guiding light.
Mr Dave further argued that point of suspicion arises as not everyone connected with the judge Loya death are saying in one breath that he had died due to heart attack and why is state shying away from ordering the independent probe.
"Entire judiciary is on the back of one person," he said and added that entire system has worked in a particular manner.
Mr Rohatgi objected to the statement and said that why is he taking the names of judges, lawyers and the court should no tolerate all these things.
Justice Khanwilkar also objected to the statement of Dave and said that "it is too broad statement and should not be made".
The hearing remained inconclusive and would continue on March 8 as the court allowed advocate Prashant Bhushan to argue his intervention application in which he had said that electrocardiogram (ECG) report of judge Loya does not indicate that death was due to heart attack.
Mr Loya, who was hearing the high-profile Sohrabuddin Sheikh fake encounter case, had allegedly died of cardiac arrest in Nagpur on December 1, 2014 when he had gone to attend the wedding of a colleague's daughter.
The bench is hearing batch of pleas including those filed by Congress leader Tehseen Poonawala and Maharashtra-based B S Lone seeking an independent probe into judge Loya's death in 2014.
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