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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

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  

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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  

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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.  

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(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  

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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.   

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(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:

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“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”.

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(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  

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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  

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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  

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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  

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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  

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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”

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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  

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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  

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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  

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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  

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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  

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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)                                  

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       ………….…………………………J.                   (RANJANA PRAKASH  

DESAI)   

       ………….…………………………J.                   (RANJAN GOGOI)

NEW DELHI; DECEMBER 6, 2013.        

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