ARGUMENTS ADVANCED

(MOOT COURT CASE 2)

Issue 1

Whether or not the High Court has the jurisdiction to Suo moto take the
case?

Suo moto cognizance means the power of the court to take up cases on its own.
Art.32 and 226 of the Constitution of India warrants the Supreme Court and the High
Court to take up the matters on its own. Suo moto is a Latin term which means ‘on its
own motion’.

The courts take Suo moto cases after receiving the information through media
or third party. This concept generally is considered to be a part of judicial activism and
increases the speed in delivery of justice.

The public interest litigation has widened the scope of judiciary’s power to
intervene in urgent matters concerning public interest. The rationale behind the Suo
moto actions of the high court and the Supreme court is the desire to deliver justice to
everyone, even to the people who might not be able to afford it.1

If the court finds injustice being done to an individual or a section of the society
on receiving the information from the affected people or through media the courts can
direct any agency or authority responsible to investigate and take necessary actions.

In this case it’s a grave human right violation where the alive people are
declared dead by the concerned authorities and so the Respondent contends that the
high court and supreme court has power to Suo moto the matter.

Further with due respect, the investigation shall be probe as to how and on what
basis the death certificates of the living person have been obtained.

The contention of the respondents is further that the executive branch of

officers are trained well enough to satisfy themselves before issuing the death
certificates, more than the executive officers, those who have obtained the death

1Suo moto cognizance by the Indian Judiciary, MYADVO spoken by Advocate Arif Khan Makki on September
14th 2021.
certificates of the living persons shall be made necessary parties to this case so that
their production of false information shall be tried as per the provisions of IPC.

Issue 2

What are the other remedies available to Nilutpal Hazarika to prove

himself alive?

Firstly, the Petitioner has to file a suit for declaration under the provisions of
Sec.34 of Specific Relief Act, 1963 that he is alive before the Civil Court and change the
records by the order of the Civil Court declaring him to be alive. This section enables a
person who have his right or legal character declared by a court of law. So, for the relief
of declaration, the Plaintiff has to prove his entitlement to the legal character or right
to property which the defendant denied or interested to deny said legal character or
right of the plaintiff.

As per the provisions of the Indian Evidence Act, Sec.108 if a person is missing
for more than 7 years, he can be declared as dead by suit for declaration if satisfactory
reasons have been provided that he is not seen or heard since last 7 years.

So also, is the case of a person who is dead as per the legal records shall bring a
suit for declaration by providing necessary documents, undergoing DNA to prove
himself to be alive before competent civil court.

Usually, the declaration of civil death is an action brought by the legal heirs of
the missing person but on the contrary the person who is declared dead on public
records shall himself bring an action before the competent civil court to declare
himself alive.

In Sanju devi vs. State, it was held that a person must file a suit for
declaration of civil death to establish the factum of death. Death itself is not a fact per
se but is itself in question; it is required that a civil court shall pass a decree declaring
the concerned person’s death. Only when such a estate or succession is made can the
benefits of estate or succession rights vest in the legal heirs.

In this case, as per the facts of the case, nowhere it is mentioned how the death
certificates were obtained? On what basis they were obtained? – if there were to be the
mention of the death certificates of the living person is obtained through Sec.108 of
Indian Evidence Act then the Magistrate declaring the death has to undergo the
provisions contemplated under the Registration of Births and Deaths Act, 1969. If the
death certificate is issued on the basis of hospital records and reports then the
authencity of such incidents has to be verified. It is practically impossible to go and
check the death of each and every individual on his doorstep.

But both the Courts as well as the Executive branches of the Government that
issue the death certificates are very much aware of the procedures established by law.
It is the humble request on behalf fo the respondents that the probe has to be
conducted and the parties involved shall be made parties to the case and then from
grassroot level to the higher administration of justice to be embarked in reaching out
the truth.

Hence, the Petitioner has to file the suit for declaration under the provisions of
Sec.34 of Specific Relief Act, 1963 before the competent court of civil judicature to
declare himself to be alive.

Issue 3

Whether or not this scenario amounts to organised crime against the poor
and helpless?

My contention to the above issue is negative. In this case to prove a case to be

affirmative, the ingredients of organised crime have to be attractable against the
government officials. The government officials are the most trained to issue the birth
certificate as well as the death certificate. There is no provision of law to state a reason
before obtaining the death certificate because it is implied once a person is dead, his
death certificate is required for various legal purposes. If the common man is utilising
this for his selfish motives, what will a government officer know for what purpose he
is obtaining. The government servants shall not be held responsible for the actions of
the people who have their selfish interest in obtaining the death certificate.

Organised crime means the commission of a crime at regular intervals in order

to make money or profits. Some examples could include human trafficking, money
laundering, smuggling, etc. Certain characteristics of organised crimes have been
discussed hereafter to get a better understanding of the concept.

Nature and characteristics of organised crime

Presence of mens rea and actus reus: In this case, there is no mens rea and actus reus
as the Pettioner is a stranger to the respondent. The respondents have done their jobd
in their respective individual capacity

Commission of crime: The Respondents have not committed any crime rather they
have done their duties as is assigned to them.

Objective of earning profits: Here in this case, the Respondents have not earned
anything out of doing their job except their salaries. Nowhere in the facts, there is an
allegation of respondents being bribed or given anything in cash or kind.

Regularity: The act of the Respondents in issuing a death certificate to the legal heirs
of the deceased persons who are alive are only in few cases not all. Most of the cases
where death certificates are issued are genuine exceptionally a few due to the
manipulation made by the parties who obtain the death certificates, our Respondents
have been blamed unnecessarily.

Types of organised crimes

There are various activities that may be termed as organised crimes. Though
there cannot be a definite list, some of the most common types of organised crimes in
India have been discussed below.

❖ Money laundering; Smuggling; Drug trafficking ; Human trafficking; Contract

killings and kidnapping

None of the above acts are forthcoming from the facts of the case and so it is not
an organised crime.

Issue 4

What action can be taken against the government officials for declaring
the alive people dead?
 Crime rates are among the country’s highest and lawlessness is deeply
intertwined with politics and policing. The victim’s identity plays a crucial role in
delayed justice, but people from all castes, religions, genders or creeds in these cases.
The victims are usually the weak links in society . Tussles over private property have
led to extreme violence in India.

Section 404 of the Indian Penal Code deals with dishonest misappropriation of
a dead man’s property.2 The object behind Section 404, IPC is to afford protection of
property which by reason of its being peculiarly needs protection where the person
who could look after it is dead and the person, who is expected and entitled to look
after it after the death of the aforesaid person has not appeared on the scene. A person
prosecuted under Section 404 of IPC, can be punished with imprisonment either
description for a term which may extend to 3 years and also shall liable to fine and if
the offender is a clerk or a servant of the deceased person, the imprisonment may
extend upto 7 years.3

Public servants in India can be penalized for corruption under the Indian Penal
Code, 1860 and the Prevention of Corruption Act, 1988.

The IPC defines “public servant” as a government employee, officers in the

military, navy or air force; police, judges, officers of Court of Justice, and any local
authority established by a central or state Act.

Section 169 pertains to a public servant unlawfully buying or bidding for

property. The public servant shall be punished with imprisonment of upto two years
or with fine or both. If the property is purchased, it shall be confiscated.

Section 409 pertains to criminal breach of trust by a public servant. The public
servant shall be punished with life imprisonment or with imprisonment of upto 10
years and a fine.

2 Sec.404 of IPC explain

3 Punishment for the offence under Sec,404
Punishments under the provisions of The Prevention of Corruption Act, 1988

In addition to the categories included in the IPC, the definition of “public

servant” includes office bearers of cooperative societies receiving financial aid from
the government, employees of universities, Public Service Commission and banks.

If a public servant takes gratification other than his legal remuneration in

respect of an official act or to influence public servants is liable to minimum
punishment of six months and maximum punishment of five years and fine. The Act
also penalizes a public servant for taking gratification to influence the public by illegal
means and for exercising his personal influence with a public servant.

If a public servant accepts a valuable thing without paying for it or paying

inadequately from a person with whom he is involved in a business transaction in his
official capacity, he shall be penalized with minimum punishment of six months and
maximum punishment of five years and fine.

It is necessary to obtain prior sanction from the central or state government in

order to prosecute a public servant.

In this case, the case lies on the Petitioners to prove that the public servants
have been corrupted or involved in helping the assailants obtaining death certificates.
If the guilt of the public servants is proved then they should be held liable for the
punishment pronounced by the court. No where in the facts it is mentioned that the
public servants who are serving the people in their individual capacity are corrupted
or involved in the issue of death certificate.

PRAYER

WHEREFORE, in the light of the issues raised, arguments advanced and the
authorities cited, I humble pray before this Hon’ble Court

a. To bring the assailants on record before prosecuting the public servants;

b. To provide a fair enquiry and investigation in the matter;
c. To declare the alive people alive on record who are declared dead;
d. And pass any other equitable order which this court may deem fit to grant in
the circumstances of case, in the interest of justice, equity and good conscience.