DECLARATION OF CIVIL DEATH

RELATED PROVISIONS

SPECIFIC RELIEF ACT 1963 - SEC 34

CODE OF CIVIL PROCEDURE  1908 - SEC 9

INDIAN EVIDENCE ACT 1872 - SEC 107 & 108

(Should be Filed as Civil Suit)

It is undisputed that a declaration as to civil death is a declaration as to the status of a person. A declaration as to civil death can be granted by a civil court under section 34 of the Specific Relief Act 1963 read with section 9 of the Code of Civil Procedure 1908. The grant of decree of declaration to declare a civil death of a person is structured on the presumption envisaged in Section 108 of the Indian Evidence Act, 1872. The said provision propounds that if a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted upon the person who affirms it.

In effect section 108 of Evidence Act is an exception to the rule enacted in Section 107 of Evidence Act. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the facts and circumstances under which the person may have died.

In LIC of India –Vs- Anuradha [(2004) 10 SCC 131, it was observed by the SC as follows: "Neither Section 108 of the Evidence Act nor logic, reason or sense permits a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years' absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence- factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death."

PROCLAIMED OFFENDER (PO)

  Publication & Declaration of Proclaimed Offender (PO) and Related Procedures 

Who is a Proclaimed Offender? 

If any Court has reason to believe that any person against whom a warrant of arrest has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. Where a proclamation published is in respect of a person accused of certain specified heinous offences and such person fails to appear at the specified place and time required by the proclamation may pronounce him a ‘Proclaimed Offender’ and make a declaration to that effect. s.82 CrPC 

What are the offences for which the Court may declare an absconder to be a Proclaimed Offender? 

The Court may pronounce an absconder as a proclaimed offender if he is accused of any of the following offences punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860),

• Murder; Culpable homicide not amounting to murder 
• Kidnapping or abducting in order to murder; Kidnapping or abducting in order to subject person to grievous hurt, slavery etc. 
• Committing theft after making preparation for death, hurt or restraint in order to commit the theft; Committing robbery or attempting to do so; Causing hurt in committing robbery; Committing dacoity/ dacoity with murder; Committing robbery/dacoity with attempt to cause death or grievous hurt; Attempting to commit robbery/dacoity when armed with deadly weapon; Preparing to commit or assembling to commit dacoity; Belonging to a gang of dacoits, 
• Causing mischief by fire or explosive substance with intent to destroy house, etc. 
• Committing house-trespass in order to commit offence punishable with death; Causing grievous hurt/death while committing lurking house-trespass or house-breaking; Being member of group that causes grievous hurt/death while committing lurking house-trespass or house-breaking by night 

What is the language of the Proclamation?

PROCLAMATION REQUIRING THE APPEARANCE OF A PERSON ACCUSED Whereas complaint has been made before me that ______ (name, description and address) has committed (or is suspected to have committed) the offence of _______ punishable under ______ section of the Indian Penal Code, and it has been returned to a warrant of arrest thereupon issued that the said ________ (name) cannot be found, and whereas it has been shown to my satisfaction that the said ________ (name) has absconded (or is concealing himself to avoid the service of the said warrant); Proclamation is hereby made that the said _______ of ________ is required to appear at ________ (place) before this Court (or before me) to answer the said complaint on the ________ day of _________ Dated, this _______ day of _______, 20___

(Seal of the Court) (Signature)

How is the Proclamation published? 

The proclamation is published as follows: 

• It is publicly read in some conspicuous place of the town or village in which such person ordinarily resides > 
• It is affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village > 
• A copy of the proclamation is affixed to some conspicuous part of the Court-house

Who can arrest a Proclaimed Offender?

The primary responsibility for securing the arrest of a proclaimed offender rests with the police of the station in which he is a resident. A Proclaimed Offender may, however, be arrested by any police officer without any order from a Magistrate and without a warrant. Any private person may arrest a PO and hand him over without unnecessary delay to a police officer/ nearest police station.

What is the punishment for non-appearance in response to the proclamation under section 82 of the Code of Criminal Procedure?

• Whoever fails to appear at the specified place and the specified time as required by a proclamation by the Court of the type described above is punishable with imprisonment for a term which may extend to 3 years or with fine or with both, and 
• Where a declaration has been made by the Court pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to 7 years and shall also be liable to fine. s. 174-A IPC 

What are the duties of the Village Panchayat etc.? 

Every member of the village panchayat, chowkidaar, numberdaar or the officer employed in connection with the affairs of the village and every person residing in the village must communicate to the nearest magistrate / police station the resort to any place within or the passage through such village of any person whom he knows or reasonably suspects to be a proclaimed offender. As soon as a police station receives intimation of the proclamation of a resident of its jurisdiction, the sarpanch and chowkidaar of the village where the PO resides or has relatives or friends that he is likely to visit, are informed about the same. 

Can a Proclaimed Offender’s property be attached? 

The Court issuing a proclamation may order the attachment of any property belonging to the proclaimed person in order to compel his appearance before the Court. s. 83 CrPC 

Is the harbouring of a PO punishable under law? 

Yes, whoever knowingly harbours a proclaimed offender to prevent his apprehension is liable to be punished under section 216 IPC with imprisonment upto 7 years in certain cases. 

Is the name of the PO displayed? 

A list is hung up in the office of each police station and a duplicate is displayed on the police station notice board of all proclaimed offenders who are absconding in cases registered in the home police station or in cases registered in other police stations, but resident of or likely to visit the home police station. The names of all such proclaimed offenders are also entered in the Police Station Register No.10 (Surveillance Register). The CRO Branch of the SP Office maintains a register of proclaimed offenders in two parts: 

• Part I contains the names of all residents of the home district irrespective of the districts in which proclaimed. The names shall be entered according to the police station of which the proclaimed offenders are resident. 
• Part II contain the names of all offenders proclaimed in but not resident of the district. These will be entered according to the district of which they are said to be resident.

Are the lists of Proclaimed Offenders revised periodically? 

The Superintendent of Police periodically revises the list of POs and the names of persons accused of trivial offences or concerned in cases where from lapse of time, no sufficient evidence is on record or is procurable, are omitted after consultation with the District Magistrate and the SP of the district in which such person was proclaimed. Whenever a PO is arrested intimation is sent to the police station and district of which he was a resident so that his name can be struck off the register/list of POs. The name is likewise struck off on receipt of intimation of the death of the proclaimed person. 

NB: Difference between 'Publication of Proclamation' and 'Declaration of Proclaimed Offender'

• Publication of Proclamation and its procedures are explained in Section 82 (1) of CrPC, which says " Any person against whom a warrant has peen issued by it has absconded or is concealing himself so that such warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specific place and at specific time not less than thirty days from the date of publishing such proclamation". and failing to appear as per published proclamation will attract penal proceedings under 174(A) of IPC and attachment proceedings under Section 83 of CrPC 
• Declaration of Proclaimed offender is explained under Section 82(4) of CrPC, which says " Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect."

Not complying with the terms & conditions of of Published Proclamation and failed to appear in court as per mentioned date in it by a Person accused of an offence punishable under any sections of IPC other than mentioned in Section 82(4) CrPC will attract only proceeding under 174 (A) IPC and 83 CrPC but not be declared as 'PROCLAIMED OFFENDER'

but the same act of non-compliance with the Published Proclamation by a Person accused of an offence punishable under any sections of IPC mentioned under 82 (4) CrPC will be declared as 'PROCLAIMED OFFENDER' by the Court.