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2024 DIGILAW 637 (AP)

Alla Ramu v. State of Andhra Pradesh

2024-06-18

K.MANMADHA RAO

body2024
ORDER : K. Manmadha Rao, J. 1. This petition is filed under Article 226 of the Constitution of India for the following relief:- "to issue an order direction or writ more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in not issuing the certificate that the whereabouts of petitioner's son Alla Aravidn Babu who has missed from Hostel Room No. 217, NRI Medical College Hostel, China Kakani, Guntur District from 22.02.2006 even after filing a final report that he is undetectable as long back as in the year 2014 even inspite of petitioner's repeated requests last being on 15.06.2016 as being illegal, arbitrary and violative of principles of natural justice and fair play and consequently direct the respondents to issue a certificate certifying that the petitioner's son is undetectable for the past more than decade and pass such other order or orders......." 2. The precise case of the petitioner is that he is the father of Mr. Alla Aravind Babu, who missed from Hostel in NRI Medical Academy due to ragging done by some senior students. Therefore, the petitioner has lodged a complaint before the police, who failed to conduct the investigation. In consequence of this Court order, investigation was entrusted to 3rd respondent and filed a final report bringing to the notice of the Court due to time lapse they were unable to conduct investigation and accordingly they could not trace his son. The petitioner made a representation on 26.02.2016 and 15.06.2016 requesting to issue certificate to the petitioner, but the 3rd respondent had given a reply that the petitioner's petition was received on 17.06.2016 and that it has no power to register and investigate the case or petitioners without the instructions of the Head Office, which is against the order of this Court in W.P. No.8290 of 2006. Therefore, the petitioner has filed a Habeas Corpus Writ Petition No. 20338 of 2012, wherein, the 3rd respondent stated in its counter that investigation is completed and they were not in a position to trace out him, this Court was pleased to record the same and closed the writ petition on 27.07.2012. Therefore, this writ petition came to be filed to issue certificate that the whereabouts of his son, who missed from the Hostel Room No. 217, NRI Medical College Hostel, China Kakani, Guntur District from 22.02.2006. 3. Mr. Therefore, this writ petition came to be filed to issue certificate that the whereabouts of his son, who missed from the Hostel Room No. 217, NRI Medical College Hostel, China Kakani, Guntur District from 22.02.2006. 3. Mr. J.U.M.V. Prasad, learned counsel for the petitioner and Ms. Y.L. Sivakalapana Reddy, learned Standing Counsel for the respondents/ CBCID. 4. During hearing learned counsel for the petitioner reiterated the contents urged in the writ affidavit. Whereas, learned Standing Counsel for the respondents categorically submitted that a case in Crime No. 31 of 2006 under head "Man Missing" was registered on 01.03.2006 at Mangalagiri Rural Police Station, regarding the missing of the son of the petitioner based on the complaint lodged by the Warden of the Boys Hostel, NRI Medical College, Mangalagiri. Subsequently initial investigation was done, later it has transferred to CID. Due to merger of CID, RO, Guntur with the CID, RO, Vijayawada, the said crime was transferred to Vijayawada, who making all possible efforts to trace the son of the petitioner and filed report referring the case as 'undetectable' before the Court of VI Additional Junior Civil Judge, Guntur on 31.10.2013 vide RCS No. 2 of 2015, which was informed to the petitioner under acknowledgement dated 11.04.2014. The petitioner instead of approaching the CID, RO, Vijayawada, again approached CID, RO, Guntur for issue of required certificate. Subsequently considered the representation of the petitioner dated 16.12.2016 and after perused the entire record, issued a certificate to the petitioner stating that after thorough investigation by the police, his son was not traced, that the Crime No. 31 of 2006 was referred as undetectable on 31.10.2013 and filed report before the Court of VI Additional Junior Civil Judge, Guntur. Therefore, requested to pass appropriate orders in this writ petition. 5. Perused the record. 6. It is mainly contended by the learned counsel for the petitioner that the son of the petitioner was missing from the hostel, NRI Medical Academy, since then the respondents/ police did not take any steps to trace the missing person, inspite of repeated representations and also order of this Court. 5. Perused the record. 6. It is mainly contended by the learned counsel for the petitioner that the son of the petitioner was missing from the hostel, NRI Medical Academy, since then the respondents/ police did not take any steps to trace the missing person, inspite of repeated representations and also order of this Court. Whereas, learned Standing Counsel for the respondents vehemently argued that a crime was registered and took up investigation and subsequently the case was transferred to CID, Vijayawada, who filed final report as 'undetectable' on 31.10.2013 before the Court of VI Additional Junior Civil Judge, Guntur vide RCS No. 2 of 2015, dated 28.02.2015. The petitioner herein also acknowledged receipt of the said Certificate on the same day i.e on 16.12.2016. Therefore, no further certificate is required to issue to the petitioner and requested to dismiss the writ petition. 7. In similar circumstances, the Madras High Court in the case of "Balambal v. Kannamal @ Pazhaniammal (died)", Indian Kanoon - http://indiankanoon.org/doc/1612095, wherein it was held as follows: "10. The decision in Lai Chand Marwari v. Mahant Ramrup Gir A.I.R. 1926 PC. 9, was Privy Council one arising out of a case decided by the Patna High Court reported in Ramrup Gir v. Lal Chand Marwarii A.I.R. 1922 Pat. 243; wherein it has been observed by the Privy Council that there is no presumption that a person not heard of for seven years was dead at the end of 7 years and where the plaintiff in that case claimed as heir to the life-holder Who was not heard of for over 7 years and defendants were found to be in possession for over 12'years, the plaintiff was to prove the date of death within 12 years of the suit vis-à-vis Article144 of the Limitation Act, 1908. In Jumilal v. Mt. Halki A.I.R. 1924 Nag. 387, a Division Bench of that court hold that the relief of declaration being a discretionary relief, courts are not ordinarily prepared to grant such relief where it would be only by way of anticipation or where the main basis of the plaintiff's complaint have filed. It was also observed therein that a declaration of the plaintiff being the next presumptive heir of the last holder was one such, and need not be granted." 11....... It was also observed therein that a declaration of the plaintiff being the next presumptive heir of the last holder was one such, and need not be granted." 11....... In N. Jayalakshmi v. R. Gopala Pathar (1995) 1 S.C.C. (Supp.) 27, the Apex Court was dealing with an appeal from this Court from the decision in Gopal Pathar v. Jayalakshmi Ammal. Their Lordships of the Apex Court held that there was not presumption under Section 108 of the Evidence Act that the person who was not heard of for more than 7 years, had died on any exact time of death and such position has to be established on evidence by the person who claims a right that the establishment of that fact is essential. Such observation came to be made in that case mine context of the right claimed on the basis of a title said to have been acquired on coming into force of the Hindu Women's Right to Property Act on 14.4.1937. In American Express Bank Limited v. Calcutta Steel Co., the Apex Court had occasion to deal with the case of grant of relief of declaration under Section 34 of the Specific Relief Act, 1963 and held that discretionary power of court has to be exercised with circumspection, ex debito justitiae, having regard to pros and cons in the facts and circumstances of each case and the court also cannot convert itself into an instrument of injustice or vehicle of oppression. Their Lordships also emphasised the need, while exercising the discretionary power of courts, to keep in mind the well settled principles of justice and fair play and the discretion exercised keeping in view the ends of justice since justice is the hallmark and it cannot be administered in vacuum. In M/s. Sodhi Transport Co. v. State of U.P., the Apex Court while dealing with the claim of presumption under Sections 111 and 114 of the Evidence Act observes that presumption is not itself an evidence. It only makes a prima facie case for party in whose favour it exists and it is a rule. Concerning evidence which also indicates the person on whom the burden of proof lies. It only makes a prima facie case for party in whose favour it exists and it is a rule. Concerning evidence which also indicates the person on whom the burden of proof lies. It was also observed therein that when presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts and it is only when it is a rebuttable presumption the provisions further pointed out the party on whom lies the duty of going forward with the evidence on the fact presumed and when the party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. The rules of presumption are said to be deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances. .... 13. In Venkatasubba Rao v. Jaladi Burreyya 43 M.L.J. 725, yet another Division Bench of this Court dealt with a case where the person who was not heard of and the presumption of death became available after the coming into force of the Indian Evidence Act, and adverting to the rule of Hindu Law in vogue that at lease 12 years should lapse before a man unheard of should be treated as dead held the same was inapplicable after the coming into force of the Evidence Act, but that the 7 years rule under Section 108 of the Act alone applied and since one 'K' in that case has not been heard for 10 years before the suit, he must be presumed to be dead on the date of the suit. 14. 14. In H.J. Bhagar v. L.I. Corporation, O.C.J., while dealing with the scope of Section 108 observed that Section 108 is founded upon the principles of the English Common Law and therefore, the burden is on the person who asserts that a person is living when such a person has disappeared and has not been heard of for more than seven years and that it cannot be laid in India as a general principle of law applicable to all cases that where a person has disappeared and has not been heard of for seven years the presumption of death might be made not merely with reference to the point of time at which the question arose after the expiry of 7 years, but even with reference to the point of time when the person actually disappeared without any other light being thrown upon the facts of that disappearance. 8. In the instant case, the son of the petitioner is whereabouts are not known from 2005, when he admittedly disappeared from the hostel i.e nearly about 18 years as on date and there is no information worth evidence about the whereabouts, existence or otherwise of him even now. In view of the indisputable circumstances and the lapse of about 18 years from the date of missing, this Court is of the view that in any manner the son of the petitioner would not come in future. Further, respondents issued certificate to the petitioner on 16.12.2016 under due acknowledgement as his son was referred as undetectable and filed final report before the concerned court, no further orders are required to be passed in this writ petition. Therefore, the writ petition is not maintainable and more over, the respondents/ police have no authority to issue such certificates in favour of the petitioner in the light of decision cited supra. 9. As per Section 108 of Indian Evidence Act, it is made clear that "if a man is not heard of for seven years, the burden of proving that he is alive is shifted to the person who affirms it. Two questions arise, one is as to the position at the end of the period of seven years and the other is about the burden of proof within the period of seven years". Section 34 of Specific Relief Act, which reproduced hereunder: "34. Two questions arise, one is as to the position at the end of the period of seven years and the other is about the burden of proof within the period of seven years". Section 34 of Specific Relief Act, which reproduced hereunder: "34. Discretion of Court as to declaration of status or right: Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: PROVIDED that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation: A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee." 10. Since the son of the petitioner was missing in the year 2005, since then, whereabouts are not known. Therefore, it is left open for the petitioner to file civil suit in terms of Section 108 of Indian Evidence Act and Section 34 of the Specific Relief Act and obtained necessary orders from the competent civil court, in accordance with law. 11. With the above observation, this Writ Petition is disposed of. There shall be no order as to costs. The miscellaneous applications pending, if any, shall also stand closed.