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2010 DIGILAW 132 (GAU)

Rita Debbarma v. State of Tripura

2010-02-19

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. Heard Mr. R. Datta, learned Counsel for the petitioner, and Ms. S. Guha, learned Government Advocate, Tripura. 2. According to the petitioner, on the night of 6.1.2001, while working as a Group. D employee, under the Public Works Department, Government of Tripura, at Mohanpur, which falls under the office of the Executive Engineer, PWD, Division No. 2, Agartala, petitioner's father, namely, Ramesh Debbarma, was abducted by unknown extremists from his residence and, on the police having been informed about the said abduction. Sidhai Police Station GD Entry No. 445, dated 11.1.2001, was made. 3. On 6.8.2001, i.e., barely after 7 months of the alleged abduction, the petitioner submitted an application to the Executive Engineer stating to the effect, inter alia, that her father had been abducted by extremists and that she should be provided with a suitable job as well as pensionary benefits under the State Government's relevant scheme meant for providing benefit to the next kin of persons missing after abduction by extremists and suspected to have been killed by extremists. The petitioner places reliance on three memoranda, dated 8.12.1998, 14.5.1999 and 7.1.2000, issued, in this regard, by the State Government, for sustaining her claim for seeking benefit of the scheme aforementioned. 4. Before proceeding further, it needs to be noted that by the Memorandum, dated 8.12.1998, aforementioned, issued by the Department of Appointment and Services, Government of Tripura, the Government brought out a scheme for providing benefit to the next kin of persons missing after abduction by extremists and suspected to have been killed by extremists. This memorandum made it clear that before the benefit is provided to the next kin of the person missing, it shall be ascertained, through the Superintendent of Police of the district concerned, as to whether the missing person had died or had been killed. By the Memorandum, dated 14.5.1999, the conditions of the Memorandum, dated 8.12.1998, aforementioned, were reiterated. Thereafter, by the Memorandum, dated 7.1.2000, an amendment to the scheme, under discussion, was introduced on the ground that in many cases, the Superintendent of Police of the district concerned was found hesitant in taking a final decision as to whether the person had died or had been killed or not even if the person concerned remains missing for more than two years unless irrefutable evidence were found to exist in this regard. The relevant portion of the memorandum, dated 7.1.2000, aforementioned, lays down as follows: It is, therefore, decided that the next of kin of persons abducted by extremists, who is missing for 2 (two) years or more, shall be eligible for benefits admissible to next of kin of persons killed in extremists' violence after ascertaining the following: (i) There shall be a report to the Police Station about abduction. (ii) The Superintendent of Police has to submit a report confirming the abduction. 5. From a careful reading of the memorandum, dated 7.1.2000, what becomes more than abundantly clear is that in order to enable a next of kin of a missing person receive the benefits of the scheme, in question, the next of kin of the person, who is claimed to have been killed in extremists' violence, shall report to the police station about the abduction and the Superintendent of Police has to submit a report confirming the abduction. Logically, therefore, it follows that in the absence of a clear finding, reached by the Superintendent of Police of the district concerned, that the person, who is claimed to be missing, was, as a matter of fact, abducted by extremists, no benefit of the scheme can be made available to the next of kin of such a person, who is claimed to have been abducted by extremists. The report, which the Superintendent of Police, Agartala, has issued, in the present case, is to the effect that on 5.1.2001, at about 1600 hrs., Ramesh Debbarma, i.e., the petitioner's father, was in the house of one Keshab Debbarma, at Chachu Bazar, which falls under Sidhai Police Station, when 3/4 tribal youths visited the said house and discussed something, inside the house, with Ramesh Debbarma in low voice and, after a little while, Ramesh Debbarma left the house along with said 3/4 tribal youths in normal course and did not return back. Having not found any material to show that Ramesh Debbarma had been abducted, police submitted, in terms of Section 173(2), CrPC, a final report in the case, which was registered with regard to the said alleged abduction. This final report has been accepted by a competent Magistrate and the acceptance of the final report has not been challenged in any proceeding including the present one. 6. This final report has been accepted by a competent Magistrate and the acceptance of the final report has not been challenged in any proceeding including the present one. 6. In the backdrop of the fact that there is no confirmation from the Superintendent of Police of the district concerned that the petitioner's father was abducted and, particularly, when the report, given by the police of Sidhai police station, shows that the petitioner's father left willingly, the mere fact that the petitioner's father has been missing would not, in the absence of anything more, entitle the petitioner to receive the benefit of the scheme, in question, which is available to the next kin of the person, who is missing after abduction by extremists and suspected to have died or have been killed by extremists. 7. At any rate, it has, now, become a disputed question of fact as to whether the petitioner's father had or had not been abducted and/or whether the persons, with whom the petitioner's father had left his locality, were or were not extremists. In the face of such unascertained facts, there can be no mandamus issued to the respondents directing them to extend to the petitioner the benefit of the scheme, embodied in the memorandum, dated 7.1.2000, aforementioned, when there is no definite finding that the petitioner's father had been abducted and the persons abducting him were extremists. In other words, in the absence of any proof of the fact that the petitioner's father has been abducted and his abductors are extremists, no mandamus can be issued to the respondents directing them to make available to the petitioner the benefit of the scheme aforementioned. 8. Because of what have been discussed and pointed out above, this writ petition fails, the same is not admitted and shall accordingly stand dismissed. 9. Notwithstanding the dismissal of this writ petition, the writ petitioner shall remain at liberty to approach this Court with appropriate application(s) if further materials surface showing that the petitioner's father had been abducted and his abductors were extremists. 10. No order as to costs. 11. Before parting with this writ petition, it is, however, made clear that the petitioner shall remain at liberty to challenge the acceptance of the final report, which has been submitted by the police under Section 173, CrPC, in respect of Sidhai Police Station GD Entry No. 445, dated 11.1.2001.