When C.B.I. may be directed to enquiry - Kidnap of a minor girl by Forest Officials - only statements of Forest department were recorded but not the eye witnesses and general public who protested the Forest Officials while taking minor girl and another woman who escaped from Forest Geep - Forest officials admitted the galata took place but denied kidnap/forceful taken over the Rajanandini - 14 years minor girl - Habeaus Corpus - modified and Apex court directed for C.B.I enquiry =
It is relevant to note that the statements of Forest Range Officers,
Betul, viz., Dhanraj Singh, Pandari Nath, L.P. Gautam as well as the lady
Forest Guard Sunanda Tekam have been recorded and as per their statements,
on interrogation, only one lady, viz., Sangeeta Pardhi was to be taken into
custody against the offence under the Wildlife (Protection) Act, 1972 being
committed by her on 10.02.2011, but she escaped and no other lady or person
had been taken into custody by them. Though they stated that one person
was taken in the jeep but even that person got released by their community
people. In the light of the conflicting statements by the officers
mentioning that initially two persons were taken into their jeep and they
were released by the Pardhi community, it was proper on the part of the
I.O. concerned to obtain statement from the public who assembled in the
fish market at the relevant time.
Admittedly, for the reasons best known
to the police, they had not examined anyone or obtained statements from the
local people available within the area in question. In the light of the
said infirmity and in view of the categorical statement of Kusum under
Section 164 of the Code before the Magistrate, we are prima facie satisfied
that proper and sincere efforts were not made by the State police in
tracing/producing the girl before the High Court in a habeas corpus
petition.
22) In addition to the above relevant aspect and of the assertion that
the kidnapped girl-Rajnandani belongs to Pardhi community, being a
denotified tribe and also of the assertion that the Pardhi community people
are being constantly harassed by the police and forest officials, we feel
that the appellant has made out a case for fresh investigation by other
agency, viz., Central Bureau of Investigation. Though in the writ petition
before the High Court, a prayer was made for production of the abducted
girl Rajnandani, in view of our discussion and prima facie conclusion, we
mould the relief and appoint the CBI to investigate and proceed further
according to law.
23) The analysis of the materials placed before us clearly brings the
case within the principles laid down by the Constitution Bench of this
Court in Committee for Protection of Democratic Rights (supra).
We hereby
direct the respondents to hand over all the documents to the CBI within a
period of two weeks from the date of receipt of copy of this order.
The
CBI is directed to investigate the case in question, viz., whereabouts of
Rajnandani who is alleged to have been taken by the forest officials on
10.02.2011 and submit its report before the court concerned, within a
period of six months thereafter.
It is further made clear that the above
discussion is only for entrusting the investigation to the CBI and we have
not expressed anything on the merits of the case.
24) With the above observations, the appeal is allowed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 2048 OF 2013
(Arising out of S.L.P. (Crl.) No. 9611 of 2012)
Alsia Pardhi .... Appellant(s)
Versus
State of M.P. & Ors. ....
Respondent(s)
J U D G M E N T
P.Sathasivam, CJI.
1) Leave granted.
2) This appeal is directed against the final judgment and order dated
09.04.2012 passed by the High Court of Madhya Pradesh in Writ Petition No.
3803 of 2011 whereby the Division Bench of the High Court dismissed the
petition filed by the appellant herein.
3) Brief facts:
(a) On 10.02.2011, at about 4 p.m., a posse of forest officials of the
Betul Range, District Betul, forcibly took away one Kusum, W/o Taarbabu
Pardhi and Rajnandani, D/o Ankit Pardhi, aged about 14 years, from the fish
market in their jeep. When the persons present at the site tried to resist
the force of the forest officials, Kusum somehow managed to jump from the
jeep but the minor girl Rajnandani was whisked away by them.
(b) Alsia Pardhi–the appellant herein, being the uncle of the kidnapped
minor girl, on 13.02.2011, made a complaint to the SHO, Kotwali Betul,
alleging that the minor girl is in the custody of the officials of the
Forest Department and requesting to register a case of kidnapping against
them.
(c) On 14.02.2011, the appellant and his community members made a
complaint to the Chief Conservator of Forests, Forest Range, Betul-
Respondent No. 3 herein, requesting him to take punitive action against the
forest officials and to get the minor girl released.
(d) When all the efforts in tracing the girl failed, the appellant, on
24.02.2011, approached the High Court by filing a writ of habeas corpus
praying that Rajnandani be directed to be produced before the Court and the
Superintendent of Police – Respondent No. 2 herein be directed to register
an FIR against the forest officials involved in kidnapping and illegal
detention of the minor girl as well as against those who have been
instrumental in shielding and protecting the accused.
(e) On 01.03.2011, the High Court directed Respondent No. 2 herein to
either produce the corpus of the missing girl or to submit the progress
report. On 19.04.2011, the High Court, considering the seriousness of the
matter, directed the appellant to produce Kusum before the CJM, Betul, on
02.05.2011, on which date, the CJM, Betul shall record her statement and
send it to the Court.
(f) On 02.05.2011, the statement of Kusum was recorded. Vide order dated
13.07.2011, the High Court, taking note of the fact that Kusum also alleged
against the forest officials who caught Rajnandani along with her, held
that the matter deserves to be investigated fairly and effective steps need
to be taken by the State for production of Rajnandani before the Court and
also directed Respondent No. 2 to take effective steps to produce the minor
girl on the next date of hearing.
(g) On 10.08.2011, i.e., on the next date of hearing, the Deputy Advocate
General for the State filed a report in the matter and submitted that as
per the report of the Police, Rajnandani was not detained by the Forest
Officials. The High Court, after perusing the record and considering the
report to be doubtful, granted further opportunity to the police to produce
corpus of Rajnandani and also directed that in case Respondent No.2 fails
to produce her on the next date of hearing, it would be compelled to direct
the Central Bureau of Investigation (CBI) to take up the investigation into
its hands. On 27.08.2011, Respondent No. 2 again submitted a progress
report. The High Court, being not satisfied with the report, directed the
Superintendent of Police, Betul to appear in person on the next date of
hearing. On 12.09.2011, when the Superintendent of Police, Betul explained
the circumstances in which the investigation was being conducted, the High
Court observed that no proper investigation had been done by the police
with the forest officials against whom the allegations had been made and
gave one more chance to the Respondent No. 2 to produce Rajnandani before
the Court. On 17.10.2011, Respondent No. 2 again filed a progress report
before the Court in which it was stated that Rajnandani had tried to
contact her father thrice from different mobile numbers but still the
police officials were not able to trace her.
(h) On 07.04.2012, Respondent No.2 filed an affidavit accepting the
statements of forest officials and did not give any weightage to the
statement of the eye-witness Kusum. It was also stated that the police
accepted the version of the forest officials verbatim.
(i) On 09.04.2012, the High Court, by accepting the progress report dated
07.04.2012, without taking note of the statement of the eye-witness Kusum,
dismissed the writ petition. The High Court also held that the present
case is not of illegal and forceful confinement warranting issue of a writ
of habeas corpus but is a case of missing person. It was also held that
there is no allegation in the petition to the effect that Rajnandani has
been subjected to wrongful confinement either by the forest authorities or
the police.
(j) Being aggrieved, the appellant herein has filed this appeal by way of
special leave.
4) Heard Mr. Prashant Bhushan, learned counsel for the appellant and Ms.
Vibha Datta Makhija, learned senior counsel for the State of M.P.
5) The only point for consideration in this appeal is
whether there is
any lapse on the part of the State agency in carrying out the investigation and the facts and materials mandate for entrusting the investigation to the CBI?
6) Before going into the merits of the claim of both the sides, it is
useful to refer the decision of the Constitution Bench of this Court in
State of West Bengal and Ors. vs. Committee for Protection of Democratic
Rights, West Bengal & Ors., (2010) 3 SCC 571 in respect of entrusting the
investigation to the CBI in respect of a cognizable offence when the State
has already initiated enquiry through its agency. The Constitution Bench,
after referring earlier decisions, formulated guidelines in paragraphs 68
and 69 which are as under:
“68. Thus, having examined the rival contentions in the context of
the constitutional scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the
Constitution, are inherent and cannot be extinguished by any
constitutional or statutory provision. Any law that abrogates or
abridges such rights would be violative of the basic structure
doctrine. The actual effect and impact of the law on the rights
guaranteed under Part III has to be taken into account in determining
whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks
to protect the persons of their lives and personal liberties except
according to the procedure established by law. The said article in its
broad application not only takes within its fold enforcement of the
rights of an accused but also the rights of the victim. The State has
a duty to enforce the human rights of a citizen providing for fair and
impartial investigation against any person accused of commission of a
cognizable offence, which may include its own officers. In certain
situations even a witness to the crime may seek for and shall be
granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction
conferred on this Court under Article 32 and on the High Courts under
Article 226 of the Constitution the power of judicial review being an
integral part of the basic structure of the Constitution, no Act of
Parliament can exclude or curtail the powers of the constitutional
courts with regard to the enforcement of fundamental rights. As a
matter of fact, such a power is essential to give practicable content
to the objectives of the Constitution embodied in Part III and other
parts of the Constitution. Moreover, in a federal constitution, the
distribution of legislative powers between Parliament and the State
Legislature involves limitation on legislative powers and, therefore,
this requires an authority other than Parliament to ascertain whether
such limitations are transgressed. Judicial review acts as the final
arbiter not only to give effect to the distribution of legislative
powers between Parliament and the State Legislatures, it is also
necessary to show any transgression by each entity. Therefore, to
borrow the words of Lord Steyn, judicial review is justified by
combination of “the principles of separation of powers, rule of law,
the principle of constitutionality and the reach of judicial review”.
(iv) If the federal structure is violated by any legislative
action, the Constitution takes care to protect the federal structure
by ensuring that the Courts act as guardians and interpreters of the
Constitution and provide remedy under Articles 32 and 226, whenever
there is an attempted violation. In the circumstances, any direction
by the Supreme Court or the High Court in exercise of power under
Article 32 or 226 to uphold the Constitution and maintain the rule of
law cannot be termed as violating the federal structure.
(v) Restriction on Parliament by the Constitution and restriction
on the executive by Parliament under an enactment, do not amount to
restriction on the power of the Judiciary under Articles 32 and 226 of
the Constitution.
(vi) If in terms of Entry 2 of List II of the Seventh Schedule on
the one hand and Entry 2-A and Entry 80 of List I on the other, an
investigation by another agency is permissible subject to grant of
consent by the State concerned, there is no reason as to why, in an
exceptional situation, the Court would be precluded from exercising
the same power which the Union could exercise in terms of the
provisions of the statute. In our opinion, exercise of such power by
the constitutional courts would not violate the doctrine of separation
of powers. In fact, if in such a situation the Court fails to grant
relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to
the consent by the State, CBI can take up investigation in relation to
the crime which was otherwise within the jurisdiction of the State
police, the Court can also exercise its constitutional power of
judicial review and direct CBI to take up the investigation within the
jurisdiction of the State. The power of the High Court under Article
226 of the Constitution cannot be taken away, curtailed or diluted by
Section 6 of the Special Police Act. Irrespective of there being any
statutory provision acting as a restriction on the powers of the
Courts, the restriction imposed by Section 6 of the Special Police Act
on the powers of the Union, cannot be read as restriction on the
powers of the constitutional courts. Therefore, exercise of power of
judicial review by the High Court, in our opinion, would not amount to
infringement of either the doctrine of separation of power or the
federal structure.
69. In the final analysis, our answer to the question referred is
that a direction by the High Court, in exercise of its jurisdiction
under Article 226 of the Constitution, to CBI to investigate a
cognizable offence alleged to have been committed within the territory
of a State without the consent of that State will neither impinge upon
the federal structure of the Constitution nor violate the doctrine of
separation of power and shall be valid in law. Being the protectors of
civil liberties of the citizens, this Court and the High Courts have
not only the power and jurisdiction but also an obligation to protect
the fundamental rights, guaranteed by Part III in general and under
Article 21 of the Constitution in particular, zealously and
vigilantly.”
7) After saying so, the Constitution Bench has also outlined paragraph
70 which reads thus:
“………This extraordinary power must be exercised sparingly, cautiously
and in exception situations where it becomes necessary to provide
credibility and instill confidence in investigations or where the
incident may have national and international ramifications or where
such an order may be necessary for doing complete justice and
enforcing the fundamental rights………………”
8) In the light of the principles enunciated by the Constitution Bench,
let us consider
whether the appellant has made out a case for interference
by this Court.
9) Mr. Prashant Bhushan, learned counsel for the appellant has brought
to our notice that the High Court proceeded on a wrong assumption that
there is no allegation in the petition to the effect that Rajnandani had
been subjected to wrongful confinement either by the forest authorities or
the police in spite of the fact that the appellant had made a specific
allegation against the forest officials.
It is also stated that the High
Court has failed to take note of the statement of the eye-witness Kusum
under Section 164 of the Code of Criminal Procedure, 1973 (in short ‘the
Code’) wherein she had stated that the forest officials abducted herself
and Rajnandani but she somehow managed to escape and the officials took
Rajnandani with them.
Finally, it is pointed out that Pardhi community,
being a denotified tribe, is constantly harassed by the police and forest
officials due to the stigma attached to them and are often arrested for any
crime committed in the nearby area.
He further pointed out that the
investigating agency chose to believe the version of the accused officials
rather the eye-witness account who was abducted along with the minor girl.
10) Ms. Vibha Datta Makhija, learned senior counsel for the State, by
filing status report, highlighted that the concerned police authorities
have already registered a case and intensive efforts are being made by them
to trace the girl in question who is missing since 10.02.2011. It is
further pointed out that in view of the categorical reports by the police
and of the fact that the police authorities have already registered a case
of missing girl and are taking all possible steps to trace out Rajnandani,
the High Court has rightly dismissed the writ petition for issuance of a
writ of habeas corpus. Accordingly, there is no need for fresh
investigation or entrusting the same to the CBI in particular.
11) It is seen from the materials placed that on 10.02.2011, at around
4.00 p.m., forest officials of the Betul Range, District Betul, came to the
fish market and forcibly took away Kusum and Rajnandani. It is also the
claim of the appellant that when the people present there tried to resist
the force of the forest officials, Kusum jumped from the jeep but
Rajnandani was whisked away by the forest officials. It is also the
assertion of the appellant that Rajnandani-the kidnapped minor girl is his
niece (sister’s daughter).
12) On behalf of the State, it is claimed that on 10.02.2011, the forest
officials got a tip off that some of the members of the Pardhi community
are illegally indulging in the sale of prohibited species of animals in the
fish market at Betul. When the forest officials reached the spot, they
found 2-3 women selling the prohibited species, consequently, they were
arrested and the prohibited species were seized. However, before taking
any action by the forest officers, about 100-150 members of the Pardhi
community had suddenly assembled and resisted their detention and managed
to free all of them except one Sangeeta Pardhi who was able to slip away
after causing injury to the lady Forest Guard Sunanda Tekam. The said
claim of the Forest officials has strongly been disputed by the appellant
and their community people.
13) It is useful to refer the letter dated 13.02.2011 by Alsia Pardhi,
President of the Pardhi Rehabilitation Sangh, Betul addressed to the SHO,
Kotwali Betul, which reads as under:
“Pardhi Rehabilitation Sangh, Betul
Utkrisht School Maidan, Pardhi Camp Betul (M.P.)
To
The SHO
Kotwali Betul
Subject: Regarding kidnapping of Pardhi girl
By Forest Officials.
Sir,
On Thursday, 10.2.2011 at 4 p.m. from near the Fish
Market, Kusum W/o Tar Babu and Rajnandani D/o Ankit Pardhi, aged
14 years sitting in the Fish Market were being forcibly taken
away by the Forest Officials of Betul Range in their jeep.
After resistance by Pardhi community, they released Kusum but
Forest Officials succeeded in forcibly kidnapping Rajnandani.
On our reaching Range Office and in spite of repeatedly asking,
the officials of Forest Department are not ready to tell
anything. The parents of victim have been very upset and
shocked after strenuous efforts to locate their daughter. We
have come to know that the girl is in the custody of Forest
Department.
You are, therefore, requested that the case of kidnapping
may be registered against officials of Forest Department and
Rajnandani may be got freed.
Dated: 13.2.2011
Applicant,
Sd/- Alasia
(Alasia Pardhi)
President
Pardhi Rehabilitation Sangh
Betul (M.P.)
Winesses:-
1. Sangita W/o Alasia
2. Saudagar S/o Sadashiv
3. Param Singh S/o Balwant
4. Guni Bai W/o Nandu Dhimar
Mohila Mission School, Patel Ward
5. Gudiya W/o Kamal
Bhagrati Bai W/o Savne Dhimar, Mohila Mission School, Patel Ward
Saudagir, Suddi, Kapurri, Lalita, Rajesh, Salim, Babu, Alagwanti
Laxmi, Latia, Gajra, Kusandi, Langad, Vatia, Kusandi, Langad,
Vatia, Guddi, Anita, Rukhmani, Lagde, Manji, Bharat Singh,
Kishori, Nana Saheb, Durgesh, Sanju, Ritu, Kesho, Bugda, Indura,
Rahul”
14) Again, on 14.02.2011, i.e., on the next day, similar letter was sent
by the appellant to the Chief Conservator of Forests, Forest Range, Betul
regarding kidnapping of minor Pardhi girl by forest officials.
15) An analysis of the above letters shows that there is a specific
reference about the picking up of two persons, viz., Kusum and Rajnandani.
16) After filing of the Writ Petition before the High Court, pursuant to
the request made, the High Court directed the petitioner therein to produce
Kusum before the Chief Judicial Magistrate, Betul on 02.05.2011 for
recording of her statement. Her statement before the Magistrate is also
relevant, which reads as under:
“As per Order of the Hon’ble High Court in Writ Petition No.
3803/11
Witness No. 1 for …Deposition taken on 02.05.2011.
Witness apparent age 25 years.
States on affirmation that my name is Kusum wife of Tar
Babu, Occupation – Labour, address Utkrisht School Ground,
Betul, Distt. Betul.
The incident is about two three months old. I had gone to
Betul to buy fish. There woman named Nandini was selling
partridges when vehicle of Forest Department came there, the
staff in the Forest Department vehicle apprehended Nandini, when
I went for her rescue, the Forest Staff apprehended me too and
put me in the vehicle, then after some time, I got down from the
vehicle and went to my Dera and I shouted in the Dera that
Forest staff are taking away Nandini, Forest staff has taken
away Nandini and since then whereabouts of Nandini is not known.
RO& AC Typed out on my direction
Sd/- Sd/-
K.C. Yadav K.C. Yadav
Chief Judicial Magistrate Chief Judicial Magistrate
Betul. Betul”
17) In her statement, Kusum stated that the forest officials picked up
both of them viz., herself and Rajnandani, and after some time she somehow
managed to jump from the vehicle. However, the forest staff took
Rajnandani and her whereabouts is not known to her. As rightly pointed
out, her statement under Section 164 of the Code before a Magistrate has
not been properly looked into by the High Court.
18) It is the grievance of learned counsel for the appellant that the
police authorities have inquired only the forest officials and in spite of
the fact that many local people were also present in the fish market, they
were not inquired and their statements were not recorded.
19) In the light of the above allegation, we perused the statements
recorded by the police. It is clear that one Durgesh Kushram, Forest
Guard, Office of Forest Range Betul, in his statement, mentioned that two
women were found selling Titar and Bater and they were apprehended by the
lady Forest Guard Sunanda Tekam. He also stated that the people of Pardhi
community resisted the action being taken and got freed both women by
manhandling the Forest Guard Sunanda Tekam and started stone pelting at
their party. In the same way, one Sanjay Dhote, another Forest Guard, has
also made a similar statement about taking of two women and how both were
got freed by manhandling the Forest Guard. Yogesh Chaudhary, Chandra
Shekhar Singh and Pandhri Nath, Forest Guards, also made similar
statements. One Laxmi Prasad Gautam, Forest Range Officer, in his
statement, also reiterated the same. Similarly, all other officials of the
forest department made similar statements.
20) A perusal of the above shows that based on the complaint of the appellant, the I.O. has only recorded the statements of the officials of the Forest Department. It is not clear as to why the police authorities did not inquire about the same from the persons present at the spot when both the women were picked up from a busy fish market and also in the light of the statement of Kusum before the Magistrate under Section 164 of the
Code specifically alleging that she alone managed to escape and Rajnandani was taken in a vehicle by the forest officials.
21) It is relevant to note that the statements of Forest Range Officers,
Betul, viz., Dhanraj Singh, Pandari Nath, L.P. Gautam as well as the lady
Forest Guard Sunanda Tekam have been recorded and as per their statements,
on interrogation, only one lady, viz., Sangeeta Pardhi was to be taken into
custody against the offence under the Wildlife (Protection) Act, 1972 being
committed by her on 10.02.2011, but she escaped and no other lady or person
had been taken into custody by them. Though they stated that one person
was taken in the jeep but even that person got released by their community
people. In the light of the conflicting statements by the officers
mentioning that initially two persons were taken into their jeep and they
were released by the Pardhi community, it was proper on the part of the
I.O. concerned to obtain statement from the public who assembled in the
fish market at the relevant time.
Admittedly, for the reasons best known
to the police, they had not examined anyone or obtained statements from the
local people available within the area in question. In the light of the
said infirmity and in view of the categorical statement of Kusum under
Section 164 of the Code before the Magistrate, we are prima facie satisfied
that proper and sincere efforts were not made by the State police in
tracing/producing the girl before the High Court in a habeas corpus
petition.
22) In addition to the above relevant aspect and of the assertion that
the kidnapped girl-Rajnandani belongs to Pardhi community, being a
denotified tribe and also of the assertion that the Pardhi community people
are being constantly harassed by the police and forest officials, we feel
that the appellant has made out a case for fresh investigation by other
agency, viz., Central Bureau of Investigation. Though in the writ petition
before the High Court, a prayer was made for production of the abducted
girl Rajnandani, in view of our discussion and prima facie conclusion, we
mould the relief and appoint the CBI to investigate and proceed further
according to law.
23) The analysis of the materials placed before us clearly brings the
case within the principles laid down by the Constitution Bench of this
Court in Committee for Protection of Democratic Rights (supra).
We hereby
direct the respondents to hand over all the documents to the CBI within a
period of two weeks from the date of receipt of copy of this order.
The
CBI is directed to investigate the case in question, viz., whereabouts of
Rajnandani who is alleged to have been taken by the forest officials on
10.02.2011 and submit its report before the court concerned, within a
period of six months thereafter.
It is further made clear that the above
discussion is only for entrusting the investigation to the CBI and we have
not expressed anything on the merits of the case.
24) With the above observations, the appeal is allowed.
………….………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(RANJANA PRAKASH DESAI)
………….…………………………J.
(RANJAN GOGOI)
NEW DELHI;
DECEMBER 6, 2013.
-----------------------
16
It is relevant to note that the statements of Forest Range Officers,
Betul, viz., Dhanraj Singh, Pandari Nath, L.P. Gautam as well as the lady
Forest Guard Sunanda Tekam have been recorded and as per their statements,
on interrogation, only one lady, viz., Sangeeta Pardhi was to be taken into
custody against the offence under the Wildlife (Protection) Act, 1972 being
committed by her on 10.02.2011, but she escaped and no other lady or person
had been taken into custody by them. Though they stated that one person
was taken in the jeep but even that person got released by their community
people. In the light of the conflicting statements by the officers
mentioning that initially two persons were taken into their jeep and they
were released by the Pardhi community, it was proper on the part of the
I.O. concerned to obtain statement from the public who assembled in the
fish market at the relevant time.
Admittedly, for the reasons best known
to the police, they had not examined anyone or obtained statements from the
local people available within the area in question. In the light of the
said infirmity and in view of the categorical statement of Kusum under
Section 164 of the Code before the Magistrate, we are prima facie satisfied
that proper and sincere efforts were not made by the State police in
tracing/producing the girl before the High Court in a habeas corpus
petition.
22) In addition to the above relevant aspect and of the assertion that
the kidnapped girl-Rajnandani belongs to Pardhi community, being a
denotified tribe and also of the assertion that the Pardhi community people
are being constantly harassed by the police and forest officials, we feel
that the appellant has made out a case for fresh investigation by other
agency, viz., Central Bureau of Investigation. Though in the writ petition
before the High Court, a prayer was made for production of the abducted
girl Rajnandani, in view of our discussion and prima facie conclusion, we
mould the relief and appoint the CBI to investigate and proceed further
according to law.
23) The analysis of the materials placed before us clearly brings the
case within the principles laid down by the Constitution Bench of this
Court in Committee for Protection of Democratic Rights (supra).
We hereby
direct the respondents to hand over all the documents to the CBI within a
period of two weeks from the date of receipt of copy of this order.
The
CBI is directed to investigate the case in question, viz., whereabouts of
Rajnandani who is alleged to have been taken by the forest officials on
10.02.2011 and submit its report before the court concerned, within a
period of six months thereafter.
It is further made clear that the above
discussion is only for entrusting the investigation to the CBI and we have
not expressed anything on the merits of the case.
24) With the above observations, the appeal is allowed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 2048 OF 2013
(Arising out of S.L.P. (Crl.) No. 9611 of 2012)
Alsia Pardhi .... Appellant(s)
Versus
State of M.P. & Ors. ....
Respondent(s)
J U D G M E N T
P.Sathasivam, CJI.
1) Leave granted.
2) This appeal is directed against the final judgment and order dated
09.04.2012 passed by the High Court of Madhya Pradesh in Writ Petition No.
3803 of 2011 whereby the Division Bench of the High Court dismissed the
petition filed by the appellant herein.
3) Brief facts:
(a) On 10.02.2011, at about 4 p.m., a posse of forest officials of the
Betul Range, District Betul, forcibly took away one Kusum, W/o Taarbabu
Pardhi and Rajnandani, D/o Ankit Pardhi, aged about 14 years, from the fish
market in their jeep. When the persons present at the site tried to resist
the force of the forest officials, Kusum somehow managed to jump from the
jeep but the minor girl Rajnandani was whisked away by them.
(b) Alsia Pardhi–the appellant herein, being the uncle of the kidnapped
minor girl, on 13.02.2011, made a complaint to the SHO, Kotwali Betul,
alleging that the minor girl is in the custody of the officials of the
Forest Department and requesting to register a case of kidnapping against
them.
(c) On 14.02.2011, the appellant and his community members made a
complaint to the Chief Conservator of Forests, Forest Range, Betul-
Respondent No. 3 herein, requesting him to take punitive action against the
forest officials and to get the minor girl released.
(d) When all the efforts in tracing the girl failed, the appellant, on
24.02.2011, approached the High Court by filing a writ of habeas corpus
praying that Rajnandani be directed to be produced before the Court and the
Superintendent of Police – Respondent No. 2 herein be directed to register
an FIR against the forest officials involved in kidnapping and illegal
detention of the minor girl as well as against those who have been
instrumental in shielding and protecting the accused.
(e) On 01.03.2011, the High Court directed Respondent No. 2 herein to
either produce the corpus of the missing girl or to submit the progress
report. On 19.04.2011, the High Court, considering the seriousness of the
matter, directed the appellant to produce Kusum before the CJM, Betul, on
02.05.2011, on which date, the CJM, Betul shall record her statement and
send it to the Court.
(f) On 02.05.2011, the statement of Kusum was recorded. Vide order dated
13.07.2011, the High Court, taking note of the fact that Kusum also alleged
against the forest officials who caught Rajnandani along with her, held
that the matter deserves to be investigated fairly and effective steps need
to be taken by the State for production of Rajnandani before the Court and
also directed Respondent No. 2 to take effective steps to produce the minor
girl on the next date of hearing.
(g) On 10.08.2011, i.e., on the next date of hearing, the Deputy Advocate
General for the State filed a report in the matter and submitted that as
per the report of the Police, Rajnandani was not detained by the Forest
Officials. The High Court, after perusing the record and considering the
report to be doubtful, granted further opportunity to the police to produce
corpus of Rajnandani and also directed that in case Respondent No.2 fails
to produce her on the next date of hearing, it would be compelled to direct
the Central Bureau of Investigation (CBI) to take up the investigation into
its hands. On 27.08.2011, Respondent No. 2 again submitted a progress
report. The High Court, being not satisfied with the report, directed the
Superintendent of Police, Betul to appear in person on the next date of
hearing. On 12.09.2011, when the Superintendent of Police, Betul explained
the circumstances in which the investigation was being conducted, the High
Court observed that no proper investigation had been done by the police
with the forest officials against whom the allegations had been made and
gave one more chance to the Respondent No. 2 to produce Rajnandani before
the Court. On 17.10.2011, Respondent No. 2 again filed a progress report
before the Court in which it was stated that Rajnandani had tried to
contact her father thrice from different mobile numbers but still the
police officials were not able to trace her.
(h) On 07.04.2012, Respondent No.2 filed an affidavit accepting the
statements of forest officials and did not give any weightage to the
statement of the eye-witness Kusum. It was also stated that the police
accepted the version of the forest officials verbatim.
(i) On 09.04.2012, the High Court, by accepting the progress report dated
07.04.2012, without taking note of the statement of the eye-witness Kusum,
dismissed the writ petition. The High Court also held that the present
case is not of illegal and forceful confinement warranting issue of a writ
of habeas corpus but is a case of missing person. It was also held that
there is no allegation in the petition to the effect that Rajnandani has
been subjected to wrongful confinement either by the forest authorities or
the police.
(j) Being aggrieved, the appellant herein has filed this appeal by way of
special leave.
4) Heard Mr. Prashant Bhushan, learned counsel for the appellant and Ms.
Vibha Datta Makhija, learned senior counsel for the State of M.P.
5) The only point for consideration in this appeal is
whether there is
any lapse on the part of the State agency in carrying out the investigation and the facts and materials mandate for entrusting the investigation to the CBI?
6) Before going into the merits of the claim of both the sides, it is
useful to refer the decision of the Constitution Bench of this Court in
State of West Bengal and Ors. vs. Committee for Protection of Democratic
Rights, West Bengal & Ors., (2010) 3 SCC 571 in respect of entrusting the
investigation to the CBI in respect of a cognizable offence when the State
has already initiated enquiry through its agency. The Constitution Bench,
after referring earlier decisions, formulated guidelines in paragraphs 68
and 69 which are as under:
“68. Thus, having examined the rival contentions in the context of
the constitutional scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the
Constitution, are inherent and cannot be extinguished by any
constitutional or statutory provision. Any law that abrogates or
abridges such rights would be violative of the basic structure
doctrine. The actual effect and impact of the law on the rights
guaranteed under Part III has to be taken into account in determining
whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks
to protect the persons of their lives and personal liberties except
according to the procedure established by law. The said article in its
broad application not only takes within its fold enforcement of the
rights of an accused but also the rights of the victim. The State has
a duty to enforce the human rights of a citizen providing for fair and
impartial investigation against any person accused of commission of a
cognizable offence, which may include its own officers. In certain
situations even a witness to the crime may seek for and shall be
granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction
conferred on this Court under Article 32 and on the High Courts under
Article 226 of the Constitution the power of judicial review being an
integral part of the basic structure of the Constitution, no Act of
Parliament can exclude or curtail the powers of the constitutional
courts with regard to the enforcement of fundamental rights. As a
matter of fact, such a power is essential to give practicable content
to the objectives of the Constitution embodied in Part III and other
parts of the Constitution. Moreover, in a federal constitution, the
distribution of legislative powers between Parliament and the State
Legislature involves limitation on legislative powers and, therefore,
this requires an authority other than Parliament to ascertain whether
such limitations are transgressed. Judicial review acts as the final
arbiter not only to give effect to the distribution of legislative
powers between Parliament and the State Legislatures, it is also
necessary to show any transgression by each entity. Therefore, to
borrow the words of Lord Steyn, judicial review is justified by
combination of “the principles of separation of powers, rule of law,
the principle of constitutionality and the reach of judicial review”.
(iv) If the federal structure is violated by any legislative
action, the Constitution takes care to protect the federal structure
by ensuring that the Courts act as guardians and interpreters of the
Constitution and provide remedy under Articles 32 and 226, whenever
there is an attempted violation. In the circumstances, any direction
by the Supreme Court or the High Court in exercise of power under
Article 32 or 226 to uphold the Constitution and maintain the rule of
law cannot be termed as violating the federal structure.
(v) Restriction on Parliament by the Constitution and restriction
on the executive by Parliament under an enactment, do not amount to
restriction on the power of the Judiciary under Articles 32 and 226 of
the Constitution.
(vi) If in terms of Entry 2 of List II of the Seventh Schedule on
the one hand and Entry 2-A and Entry 80 of List I on the other, an
investigation by another agency is permissible subject to grant of
consent by the State concerned, there is no reason as to why, in an
exceptional situation, the Court would be precluded from exercising
the same power which the Union could exercise in terms of the
provisions of the statute. In our opinion, exercise of such power by
the constitutional courts would not violate the doctrine of separation
of powers. In fact, if in such a situation the Court fails to grant
relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to
the consent by the State, CBI can take up investigation in relation to
the crime which was otherwise within the jurisdiction of the State
police, the Court can also exercise its constitutional power of
judicial review and direct CBI to take up the investigation within the
jurisdiction of the State. The power of the High Court under Article
226 of the Constitution cannot be taken away, curtailed or diluted by
Section 6 of the Special Police Act. Irrespective of there being any
statutory provision acting as a restriction on the powers of the
Courts, the restriction imposed by Section 6 of the Special Police Act
on the powers of the Union, cannot be read as restriction on the
powers of the constitutional courts. Therefore, exercise of power of
judicial review by the High Court, in our opinion, would not amount to
infringement of either the doctrine of separation of power or the
federal structure.
69. In the final analysis, our answer to the question referred is
that a direction by the High Court, in exercise of its jurisdiction
under Article 226 of the Constitution, to CBI to investigate a
cognizable offence alleged to have been committed within the territory
of a State without the consent of that State will neither impinge upon
the federal structure of the Constitution nor violate the doctrine of
separation of power and shall be valid in law. Being the protectors of
civil liberties of the citizens, this Court and the High Courts have
not only the power and jurisdiction but also an obligation to protect
the fundamental rights, guaranteed by Part III in general and under
Article 21 of the Constitution in particular, zealously and
vigilantly.”
7) After saying so, the Constitution Bench has also outlined paragraph
70 which reads thus:
“………This extraordinary power must be exercised sparingly, cautiously
and in exception situations where it becomes necessary to provide
credibility and instill confidence in investigations or where the
incident may have national and international ramifications or where
such an order may be necessary for doing complete justice and
enforcing the fundamental rights………………”
8) In the light of the principles enunciated by the Constitution Bench,
let us consider
whether the appellant has made out a case for interference
by this Court.
9) Mr. Prashant Bhushan, learned counsel for the appellant has brought
to our notice that the High Court proceeded on a wrong assumption that
there is no allegation in the petition to the effect that Rajnandani had
been subjected to wrongful confinement either by the forest authorities or
the police in spite of the fact that the appellant had made a specific
allegation against the forest officials.
It is also stated that the High
Court has failed to take note of the statement of the eye-witness Kusum
under Section 164 of the Code of Criminal Procedure, 1973 (in short ‘the
Code’) wherein she had stated that the forest officials abducted herself
and Rajnandani but she somehow managed to escape and the officials took
Rajnandani with them.
Finally, it is pointed out that Pardhi community,
being a denotified tribe, is constantly harassed by the police and forest
officials due to the stigma attached to them and are often arrested for any
crime committed in the nearby area.
He further pointed out that the
investigating agency chose to believe the version of the accused officials
rather the eye-witness account who was abducted along with the minor girl.
10) Ms. Vibha Datta Makhija, learned senior counsel for the State, by
filing status report, highlighted that the concerned police authorities
have already registered a case and intensive efforts are being made by them
to trace the girl in question who is missing since 10.02.2011. It is
further pointed out that in view of the categorical reports by the police
and of the fact that the police authorities have already registered a case
of missing girl and are taking all possible steps to trace out Rajnandani,
the High Court has rightly dismissed the writ petition for issuance of a
writ of habeas corpus. Accordingly, there is no need for fresh
investigation or entrusting the same to the CBI in particular.
11) It is seen from the materials placed that on 10.02.2011, at around
4.00 p.m., forest officials of the Betul Range, District Betul, came to the
fish market and forcibly took away Kusum and Rajnandani. It is also the
claim of the appellant that when the people present there tried to resist
the force of the forest officials, Kusum jumped from the jeep but
Rajnandani was whisked away by the forest officials. It is also the
assertion of the appellant that Rajnandani-the kidnapped minor girl is his
niece (sister’s daughter).
12) On behalf of the State, it is claimed that on 10.02.2011, the forest
officials got a tip off that some of the members of the Pardhi community
are illegally indulging in the sale of prohibited species of animals in the
fish market at Betul. When the forest officials reached the spot, they
found 2-3 women selling the prohibited species, consequently, they were
arrested and the prohibited species were seized. However, before taking
any action by the forest officers, about 100-150 members of the Pardhi
community had suddenly assembled and resisted their detention and managed
to free all of them except one Sangeeta Pardhi who was able to slip away
after causing injury to the lady Forest Guard Sunanda Tekam. The said
claim of the Forest officials has strongly been disputed by the appellant
and their community people.
13) It is useful to refer the letter dated 13.02.2011 by Alsia Pardhi,
President of the Pardhi Rehabilitation Sangh, Betul addressed to the SHO,
Kotwali Betul, which reads as under:
“Pardhi Rehabilitation Sangh, Betul
Utkrisht School Maidan, Pardhi Camp Betul (M.P.)
To
The SHO
Kotwali Betul
Subject: Regarding kidnapping of Pardhi girl
By Forest Officials.
Sir,
On Thursday, 10.2.2011 at 4 p.m. from near the Fish
Market, Kusum W/o Tar Babu and Rajnandani D/o Ankit Pardhi, aged
14 years sitting in the Fish Market were being forcibly taken
away by the Forest Officials of Betul Range in their jeep.
After resistance by Pardhi community, they released Kusum but
Forest Officials succeeded in forcibly kidnapping Rajnandani.
On our reaching Range Office and in spite of repeatedly asking,
the officials of Forest Department are not ready to tell
anything. The parents of victim have been very upset and
shocked after strenuous efforts to locate their daughter. We
have come to know that the girl is in the custody of Forest
Department.
You are, therefore, requested that the case of kidnapping
may be registered against officials of Forest Department and
Rajnandani may be got freed.
Dated: 13.2.2011
Applicant,
Sd/- Alasia
(Alasia Pardhi)
President
Pardhi Rehabilitation Sangh
Betul (M.P.)
Winesses:-
1. Sangita W/o Alasia
2. Saudagar S/o Sadashiv
3. Param Singh S/o Balwant
4. Guni Bai W/o Nandu Dhimar
Mohila Mission School, Patel Ward
5. Gudiya W/o Kamal
Bhagrati Bai W/o Savne Dhimar, Mohila Mission School, Patel Ward
Saudagir, Suddi, Kapurri, Lalita, Rajesh, Salim, Babu, Alagwanti
Laxmi, Latia, Gajra, Kusandi, Langad, Vatia, Kusandi, Langad,
Vatia, Guddi, Anita, Rukhmani, Lagde, Manji, Bharat Singh,
Kishori, Nana Saheb, Durgesh, Sanju, Ritu, Kesho, Bugda, Indura,
Rahul”
14) Again, on 14.02.2011, i.e., on the next day, similar letter was sent
by the appellant to the Chief Conservator of Forests, Forest Range, Betul
regarding kidnapping of minor Pardhi girl by forest officials.
15) An analysis of the above letters shows that there is a specific
reference about the picking up of two persons, viz., Kusum and Rajnandani.
16) After filing of the Writ Petition before the High Court, pursuant to
the request made, the High Court directed the petitioner therein to produce
Kusum before the Chief Judicial Magistrate, Betul on 02.05.2011 for
recording of her statement. Her statement before the Magistrate is also
relevant, which reads as under:
“As per Order of the Hon’ble High Court in Writ Petition No.
3803/11
Witness No. 1 for …Deposition taken on 02.05.2011.
Witness apparent age 25 years.
States on affirmation that my name is Kusum wife of Tar
Babu, Occupation – Labour, address Utkrisht School Ground,
Betul, Distt. Betul.
The incident is about two three months old. I had gone to
Betul to buy fish. There woman named Nandini was selling
partridges when vehicle of Forest Department came there, the
staff in the Forest Department vehicle apprehended Nandini, when
I went for her rescue, the Forest Staff apprehended me too and
put me in the vehicle, then after some time, I got down from the
vehicle and went to my Dera and I shouted in the Dera that
Forest staff are taking away Nandini, Forest staff has taken
away Nandini and since then whereabouts of Nandini is not known.
RO& AC Typed out on my direction
Sd/- Sd/-
K.C. Yadav K.C. Yadav
Chief Judicial Magistrate Chief Judicial Magistrate
Betul. Betul”
17) In her statement, Kusum stated that the forest officials picked up
both of them viz., herself and Rajnandani, and after some time she somehow
managed to jump from the vehicle. However, the forest staff took
Rajnandani and her whereabouts is not known to her. As rightly pointed
out, her statement under Section 164 of the Code before a Magistrate has
not been properly looked into by the High Court.
18) It is the grievance of learned counsel for the appellant that the
police authorities have inquired only the forest officials and in spite of
the fact that many local people were also present in the fish market, they
were not inquired and their statements were not recorded.
19) In the light of the above allegation, we perused the statements
recorded by the police. It is clear that one Durgesh Kushram, Forest
Guard, Office of Forest Range Betul, in his statement, mentioned that two
women were found selling Titar and Bater and they were apprehended by the
lady Forest Guard Sunanda Tekam. He also stated that the people of Pardhi
community resisted the action being taken and got freed both women by
manhandling the Forest Guard Sunanda Tekam and started stone pelting at
their party. In the same way, one Sanjay Dhote, another Forest Guard, has
also made a similar statement about taking of two women and how both were
got freed by manhandling the Forest Guard. Yogesh Chaudhary, Chandra
Shekhar Singh and Pandhri Nath, Forest Guards, also made similar
statements. One Laxmi Prasad Gautam, Forest Range Officer, in his
statement, also reiterated the same. Similarly, all other officials of the
forest department made similar statements.
20) A perusal of the above shows that based on the complaint of the appellant, the I.O. has only recorded the statements of the officials of the Forest Department. It is not clear as to why the police authorities did not inquire about the same from the persons present at the spot when both the women were picked up from a busy fish market and also in the light of the statement of Kusum before the Magistrate under Section 164 of the
Code specifically alleging that she alone managed to escape and Rajnandani was taken in a vehicle by the forest officials.
21) It is relevant to note that the statements of Forest Range Officers,
Betul, viz., Dhanraj Singh, Pandari Nath, L.P. Gautam as well as the lady
Forest Guard Sunanda Tekam have been recorded and as per their statements,
on interrogation, only one lady, viz., Sangeeta Pardhi was to be taken into
custody against the offence under the Wildlife (Protection) Act, 1972 being
committed by her on 10.02.2011, but she escaped and no other lady or person
had been taken into custody by them. Though they stated that one person
was taken in the jeep but even that person got released by their community
people. In the light of the conflicting statements by the officers
mentioning that initially two persons were taken into their jeep and they
were released by the Pardhi community, it was proper on the part of the
I.O. concerned to obtain statement from the public who assembled in the
fish market at the relevant time.
Admittedly, for the reasons best known
to the police, they had not examined anyone or obtained statements from the
local people available within the area in question. In the light of the
said infirmity and in view of the categorical statement of Kusum under
Section 164 of the Code before the Magistrate, we are prima facie satisfied
that proper and sincere efforts were not made by the State police in
tracing/producing the girl before the High Court in a habeas corpus
petition.
22) In addition to the above relevant aspect and of the assertion that
the kidnapped girl-Rajnandani belongs to Pardhi community, being a
denotified tribe and also of the assertion that the Pardhi community people
are being constantly harassed by the police and forest officials, we feel
that the appellant has made out a case for fresh investigation by other
agency, viz., Central Bureau of Investigation. Though in the writ petition
before the High Court, a prayer was made for production of the abducted
girl Rajnandani, in view of our discussion and prima facie conclusion, we
mould the relief and appoint the CBI to investigate and proceed further
according to law.
23) The analysis of the materials placed before us clearly brings the
case within the principles laid down by the Constitution Bench of this
Court in Committee for Protection of Democratic Rights (supra).
We hereby
direct the respondents to hand over all the documents to the CBI within a
period of two weeks from the date of receipt of copy of this order.
The
CBI is directed to investigate the case in question, viz., whereabouts of
Rajnandani who is alleged to have been taken by the forest officials on
10.02.2011 and submit its report before the court concerned, within a
period of six months thereafter.
It is further made clear that the above
discussion is only for entrusting the investigation to the CBI and we have
not expressed anything on the merits of the case.
24) With the above observations, the appeal is allowed.
………….………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(RANJANA PRAKASH DESAI)
………….…………………………J.
(RANJAN GOGOI)
NEW DELHI;
DECEMBER 6, 2013.
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