Ram Sharan Baghel vs State Of Madhya Pradesh

With the consent of parties, this petition is disposed of finally.

The petitioner who is father of his minor daughter namely Preeti aged about 15 years has filed this writ petition seeking issuance of writ of

habeas corpus for producing the daughter who has been kidnapped on 26/07/2014 when she had gone to the school, by respondent No. 4.

The grievance of the petitioner is that immediately after receiving the information with regard to kidnapping of his daughter Ms. Preeti on

26/07/2014 alleging therein that the respondent No. 4 had forcefully taken her along with him and has kept her in his illegal confinement. The

respondents No. 5 & 6 are also having hand in glove with the respondent No. 4 and are equally involved in the offence. The wife of the petitioner has

lodged complaint at police station Morar, District Gwalior after two days of the incident i.e. on 28/07/2014 and FIR was registered bearing crime No.

554/2014 against the respondent No. 4 for the offence punishable under section 363 of IPC. The respondent No. 5 is friend of respondent No. 4

whereas, the respondent No. 6 is the landlord of the house in which the respondent No. 4 lived. Soon after the incident, respondent No. 5 contacted

the petitioner's wife and requested her not to lodge a complaint before the police and gave assurance that child shall be returned back within two days.

After FIR was lodged against respondent No. 4, respondent No. 5 threatened the petitioner as well as his family members with dire consequences, if

report is not taken back immediately. The petitioner informed the police with regard to the connivance of the respondents 5 & 6 with respondent No. 4

and on 02/08/2014 requested them to take immediate action, but no heed was paid to the request and no concrete efforts were made by the police.

Considerable time had been lapsed after daughter of the petitioner was kidnapped on 26/07/2014, but the police is not able to trace the corpus or give

any clue with regard to her whereabout.

Learned counsel for the petitioner has emphasized that in the facts and circumstances of the case, the police authorities have failed miserably and

are unable to trace the corpus even after lapse of four years. The entire proceedings go to show that there are various infirmities in the investigation

and the status report filed from time to time does not disclose that concrete steps were made by the police authorities to trace the corpus. The

investigation and inquiry are not being conducted in the proper manner. In these circumstances, prima facie case is made out for investigation and

inquiry to be done by Central Bureau of Investigation. In support of his contentions, learned counsel for the petitioner has placed reliance on the

judgments in the case of Kedarnath Sharma vs. Union of India and Ors. reported in 2008 (1) MPHT 233, Azija Begum vs. State of Maharashtra

reported in 2012 (II) MPWN 29, Paramjit Kaur (Mrs.) vs. State of Punjab and Ors. reported in (1996) 7 SCC 20, Dharam Pal vs. State of Haryana &

Ors. reported in (2016)Â 4 SCC 160.

Learned counsel for the petitioner has also pointed out that first progress report was filed on 20/08/2014 and the last was filed on 10/08/2017

(total eight progress report have been filed) but the police authorities are unable to trace out the corpus. He further contended that fundamental rights

enshrined in part 3 of Constitution are inherent and cannot be extinguished by any constitutional or statutory provisions. Article 21 of the Constitution in

its broad perspective seeks to protect the person's life and personal liberty except according to the procedure established by law. The said Article in its

broad application not only take steps for enforcement of rights of the citizen, but also to protect the rights of the victim. The State has a duty to

enforce and protect the rights of the citizen and to provide for fair and impartial investigation of a person accused of cognizable offence which may

include its own officer. In certain situation, even a witness to the crime may seek for and shall be granted protection by the State.

The respondents have filed in all eight progress report from time to time and have submitted that full and effective efforts have been made from

time to time to trace the corpus. The respondents have denied the fact of irregularity or illegality in the matter of investigation. It is submitted that

investigation is being conducted properly and there is no illegality as alleged by the petitioner.

Learned State counsel has argued that no case is made out for transfer of the case to the Central Bureau of Investigation.

The respondent No. 7/CBI has also filed a short reply and it is stated that petitioner has sought direction to CBI to liberate the corpus from unlawful

confinement and investigate the matter of alleged kidnapping of 15 years old daughter of the petitioner. It is further submitted that Central Bureau of

Investigation is a specialized investigation agency of Government of India, dealing with the cases of corruption by public servants of Central

Government Department and its Public Sector undertakings, etc. and cases having inter state or international ramifications and the present case is

related to the alleged kidnapping and, therefore, there is no need to refer the matter to CBI and the matter may best be dealt with by the local police.

Learned counsel for the CBI in support of his contentions has relied upon the judgment of the Apex Court delivered in the case of State of West

Bengal and Ors. vs. Committee of Protection of Democratic Rights, West Bengal and Ors. reported in (2010) 3 SCC 571, wherein, the Apex Court

has held as under :-

“This extra ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility

and instill confidence in investigations or where the incident may have national or international ramifications or where such an order may be necessary

for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited

resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory

investigations.â€​

Heard the learned counsel for the parties.

This court initially issued notices to the respondents on 05/08/2014 with direction to the police authority to file status report with regard to missing

minor daughter. Thereafter, various progress reports were filed from time to time. On going through the progress report, it reveals that proper steps

have not been taken to find out the corpus. This Court vide order dated 28/06/2016 did not find the compliance report dated 27/10/2015 upto the mark

since the same did not disclose exact steps taken by the police authorities for recovery of the girl or information regarding her whereabout, therefore,

Superintendent of Police was directed to personally supervise the matter and submit exact status report in respect of case in hand. In the light of order

dated 28/06/2016 status report was filed which also did not reveal about concrete steps being taken to trace the corpus. The Special Investigation

Team (SIT) was constituted vide order dated 05/07/2016, which also failed to trace the corpus. Thereafter, on various occasions progress report was

filed, but to no avail. The S.P. Dist. Gwalior was directed to supervise the investigation carried out by the SIT, but again the police has failed to

produce the corpus. Thereafter, the Inspector General of Police, Gwalior Range, Gwalior was directed to constitute a Special Investigating Team,

which would be headed by an officer not below the rank of Deputy Superintendent of Police and would make all possible efforts to trace the corpus

with further direction to Inspector General of Police, Gwalior Range, Gwalior to personally supervise the functioning of the Special Investigating

Team. Since the police as well as SIT constituted for this purpose failed to produce the corpus even after lapse of four years, the petitioner has

confined his prayer seeking direction to the CBI to take over the investigation in its hand and investigate the matter.

On going through the record of the case as well as various status report filed from time to time, this Court is of the considered view that

sufficient prima facie material is available on record to indicate that inquiry conducted by the State police or by SIT is not convincing enough to hold

that they have conducted proper and impartial inquiry into the matter. At this stage, it would be proper to take note of certain observations made by

the Supreme Court in the case of Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr.Speaking for the Bench and writing the

judgment, Hon'ble Mr. Justice Arijit Pasayat in the said case started the judgment with a quotation by Abraham Lincoln. The quotation reads as under:

“If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem.â€​

After reproducing the aforesaid quotation, the Supreme Court has expressed serious concern with regard to custodial violence, torture and abuse

of police power which are not peculiar to this country, but is widespread.

In Paragraph 3 of the judgment, it is so observed:

“If it is assuming alarming proportions, nowadays, all around, it is merely on account of the devilish devices adopted by those at the helm of affairs

who proclaim from roof tops to be the defenders of democracy and protectors of people's rights and yet do not hesitate to condescend behind the

screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace-loving puritans and

saviours of citizen's rights.â€​

Thereafter taking note of Article 21 of the Constitution, a sacred and cherished right, i.e., life or personal liberty the human dignity approach is

highlighted. In Paragraph 35 after observing the principles laid down by the English Court in the case of Jennison v. Baker All ER P. 106 d, it has been

observed by the Supreme Court that the Courts have to ensure that accused persons are punished and if deficiency in investigation or prosecution is

visible or can be perceived by lifting the veil trying to hide the realities or covering the deficiencies, deal with the same appropriately within the

framework of law. It has been held by the Court that justice has no favourite, except the truth.

Keeping in view the principle laid down by the Supreme Court in the case of Shakila Abdul Gafar Khan (Smt.) (supra), and analyzing the manner

in which the investigation has progressed in the peculiar facts and circumstances of the present case, this Court is of the considered view that

apprehension of the petitioner that justice is not being done to him is not free from doubt, that being so, interest of justice require that part of relief

claimed by the petitioner pertaining to transfer of the investigation to the CBI should be allowed.

It is well settled in law that in a given case, if the material indicate prima facie irregularity in the matter of investigation, the Supreme Court and the

High Court have power to order for investigation by CBI or by any independent agency. These principles are enumerated in the judgment of the

Supreme Court in the case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. vs. Sahngoo Ram Arya and Anr. reported in

AIR 2002 SC 2225 and Mohammed Anis vs. Union of India and Ors. reported in 1994 Supp. (1) SCC 145. After considering the principles laid down

in all these judgments, there cannot be any iota of doubt that in a given case jurisdiction in a writ petition under Article 226 of the Constitution can be

exercised by this Court for ordering investigation by CBI or an independent agency.

In the present case, prima facie the inquiry and investigation being conducted by the police as well as SIT is found to be not in conformity with the

requirements of conducting a proper investigation into the matter. Interest of justice requires that the investigation and inquiry should be done by an

independent agency. Looking to the fact that whereabout of the minor daughter is not known for about four years and particularly when the allegation

of kidnapping has been levelled, the police authorities have utterly failed to carry out investigation and search the corpus inspite of possible lead

available with them. Therefore, investigation and inquiry is required to be done by any independent agency which is not influenced in any manner

whatsoever either by SIT or the Local Police Authorities.

Accordingly, the petition is allowed. The respondent No. 7, Director, Central Bureau of Investigation (CBI) is directed to take over the

investigation of the matter and on the basis of the material available on record, proceed to inquire into the matter and bring it to its logical conclusion in

accordance with law.

The respondent No. 2 is directed to hand over the case diary/other case paper to the respondent No. 7 after completing all due formalities. The

respondent No. 7 is directed to nominate an officer or a team of officers under his control to conduct investigation and proceed to investigate into the

matter in accordance with law. It is expected that the State Government and the Local Police Authorities shall co-operate with respondent No. 7.

Before parting, it would be appropriate to observe that this Court has not given any conclusive finding with regard to any of the allegations made

by the petitioner or refuted by the respondents. The findings recorded and the observations made in this order are only prima facie assessment of the

material to find out existence of a prima facie case for transfer of the investigation to the CBI. The observations made are only to that extent and shall

not be construed to mean that the findings are conclusive finding on any fact or material indicated therein. Needless to emphasis that it is for the

Investigating Authority, CBI to investigate and inquire into the matter in accordance with law and come to an independent conclusion uninfluenced by

any observation made in this order.

Accordingly, this petition is allowed to the extent indicated hereinabove and disposed of without any order so as to cost.