Alsia Pardhi vs. State of Madhya Pradesh & Ors

Guest Post by Rajashree Rajasekaran

It is not often that a case concerning the writ of Habeas Corpus finds its way to the Supreme Court of India. As observed by the Supreme Court in a recent case, a writ of habeas corpus is a writ of highest constitutional importance being a remedy available to the lowliest citizen against the most powerful authority.

The instant case and the judgment passed by the SC on 6thDecember 2013 (found here), is an interesting study in this regard. The SLP herein relates to the impugned order of the Madhya Pradesh High Court dated 09.04.2012.
Facts of the case
The incident in question took place at 4 PM on 10.02.2011, where Forest officials of the Betul Range in the Betul District of MP forcibly took away one Ms.Kusum, aged 25 years and Ms. Rajnandini, aged about 14 years belonging to the Pardhi Community from the fish market for having indulged in the sale of prohibited species of animals. Kusum, however managed to escape from the jeep but Rajnandini’s whereabouts remain a mystery till date.

The Petitioner herein, who is the Uncle of the missing minor girl, filed a complaint to the SHO, Kotwali Betul on 13.02.2011, alleging that the minor girl was forcibly kidnapped and is in custody of the officials of the Forest Department thereby requesting that a case of kidnapping be registered against them.
In the High Court
Consequently, the petitioner filed a Writ petition seeking a writ of habeas corpus for production of Rajnandini in WP No.3803/2011, citing that no action had been taken by the police authorities. The Respondents, in their reply have stated that upon information of the sale of prohibited animals, the Range officers along with Forest guards, one of whom was a female forest guard by name Sunanda Tekam visited the fish market and arrested 2-3 women. However, the Respondents claim that they were immediately surrounded by 100 – 150 members of the Pardhi Community, who managed to free all detained, except one Ms. Sangeetha Pardhi, who freed herself after having injured Ms. Tekam. The respondents state that no minor girl was present or arrested by them and that the report filed by the petitioner herein is false and has been done so with intent to harass the forest officials.
The progress reports submitted by Superintendent of Police (Respondent No.2) on 10.08.2011, 27.08.2011, 17.10.2011 to the HC, state that a missing persons case has been registered as  Rajnandini was not detained by the police, and that she had tried to contact her father thrice from different mobile numbers but still remains untraceable. On 02.05.2011, Kusum, in her recorded statement alleged against the Forest officials. In the light of these findings, the HC in its order dated 09.04.2012 (found here), dismissed the Writ petition on the grounds that there was no allegation of wrongful confinement by the forest officials or the Police, that intensive efforts were being made by the Police to trace the missing girl and that the writ of habeas corpus cannot be granted in  relation to a missing person in respect of whom a case has been registered in the Police Station. The High Court in this regard has relied on its Division Bench decision in the case of Sulochana Bai vs. State of M.P. and others, 2008 (1) MPLJ 339.
Before the Supreme Court
The main issue for consideration herein was whether the investigations carried on by the concerned state authorities were so inadequate so as to justify the entrusting of this case to the CBI for further investigation.
The submissions made by Mr.Prashant Bhushan, for the Appellant was three fold. Firstly, that the HC proceeded on a wrong assumption that there was no allegation of wrongful confinement. Secondly, the HC failed to consider the statement of Ms.Kusum under section 164 of the Cr.P.C and thirdly, that the Pardhi community, which is a denotified tribe is often victimised and harassed by the police and forest authorities by reason of stigma attached to them. Ms. Vibha Dutta Makhija, appearing on behalf of the respondents, submitted that the impugned order of the HC is correct in its dismissal of the Writ Petition and reiterated the various reasons of the HC in arriving at that conclusion.
The SC in this instance has taken refuge in the decision of the Constitutional bench in the case of State of West Bengal and Ors vs. Committee for Protection of Democratic Rights, West Bengal and Ors (2010) 3 SCC 571, where it was held that a direction by the High Court under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within 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. The State has an inherent duty to conduct a fair and impartial investigation even if it be against its own officers. Judicial review, being a basic structure of the Constitution, acts as the final arbiter to give effect to the distribution of legislative powers between Parliament and the State Legislatures. The power exercised by the constitutional courts in ordering an investigation by another agency in an exceptional situation, would not violate the doctrine of separation of powers. 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.
The SC also noted that conflicting statements were made by the Forest officers as regards how many women were taken into custody and that the police had failed to obtain statements from the persons who were present at the time of the incident. Also, considering categorical assertions made in Ms. Kusum’s statement, the SC has directed the CBI to investigate into the whereabouts of Ms.Rajnandini and submit its report before the concerned court within a period of six months.
(Rajashree Rajasekaran is a fourth year student at The National University of Advanced Legal Studies(NUALS), Kochi)
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