Soldier whose whereabouts unknown for more than 7 years not "deserter", will be presumed dead: Jammu & Kashmir High Court

Desertion is the act of illegally running away from military service and a person, whose whereabouts are unknown and who has not been heard of for the last more than 10 years, cannot be said to have illegally run away from military service, the Jammu & Kashmir High Court held (Madhu Devi v. Union of India)..A single-judge Bench of Justice Sanjay Dhar, therefore, ruled that a Central Reserve Police Force (CRPF) soldier missing for the last seven years can be presumed to be dead in terms of Section 108 of the Indian Evidence Act and hence, directed the CRPF authorities to give all consequential benefits to the family of the missing person. .The Court was hearing a plea by one Madhu Devi (petitioner) who sought a declaration that her husband, Asha Ram be declared dead in terms of Section 108 and to quash the order of respondents whereby Ram had been declared a ‘deserter’.."The word ‘desert’ would mean illegally run away from the military service. A person, whose whereabouts are unknown and who has not been heard of for the last more than 10 years, cannot be stated to have illegally run away from his service.The petitioner’s husband is presumed to be dead because his whereabouts have remained unknown for the last more than seven years, as such, by no stretch of imagination, he can be held guilty of having deserted the service of CRPF," the Court held..Thus, the action of the respondents in declaring the petitioner’s husband as ‘deserter’ and thereafter handing down the punishment of dismissal to him, is unsustainable in law, it was ruled. .The case of the petitioner was that her husband was serving as Head Constable in 16 Battalion CRPF and was last posted at Civil Lines Mathura, Uttar Pradesh. The Group Centre of the said Battalion was at Ban Talab, Jammu where the husband of the petitioner was putting up in a residential quarter allotted to him. In June 2010, the petitioner got a phone call from the Company Commander of the Unit informing her that her husband had gone to fetch some vegetables, but did not return. The petitioner tried to contact her husband, but was unable to do so, whereafter, she informed respondents about the same. The respondents also began a search for the petitioner’s husband, but could not ascertain his whereabouts. The salary of husband of the petitioner was stopped and the burden of rearing children comprising two sons and a daughter fell upon the shoulders of the petitioner..It was further argued that a communication was received by the petitioner in June 2010 from respondents informing her that her husband is absent from duty and that he should report for duty, else warrants of arrest would be issued against him. The petitioner responded to the said communication stating that she has no knowledge about the whereabouts of her husband and requested respondents to trace him at the earliest. Thereafter, the petitioner addressed another communication to respondent requesting to make efforts to locate her husband, but, instead of locating him, the respondents leveled the charge of desertion of the Unit against the husband of the petitioner, the petitioner submitted. Later, a court of enquiry was conducted and petitioner’s husband was declared as 'deserter' from CRPF by an order dated September 6, 2010. .It was the contention of the petitioner that the family has not heard from her husband for the last more than seven years and even the respondents have been unable to trace him despite making efforts including issuance of notices in the print and electronic media..On this ground, it was urged by the petitioner that her husband be declared as dead and the order of the respondents whereby he has been declared as ‘deserter’ be quashed..The Court after hearing the rival contentions said that petitioner has placed on record material to show that her husband could not be traced for more than seven years. Section 108 of Indian Evidence Act, the Court said, casts burden of proving that a person is alive, who has not been heard of for seven years, upon the person who affirms it.In the instant case, respondent authorities are not in a position to state that the petitioner’s husband is alive, the Court observed. ."In fact, the respondents have not disputed that the petitioner’s husband has remained untraceable. Therefore, it is to be presumed that petitioner’s husband is dead as per Section 108 of Indian Evidence Act," the Court held. .Thus, the action of the respondents in declaring the petitioner’s husband as ‘deserter’ and thereafter handing down the punishment of dismissal to him, is unsustainable in law, the Court concluded. .It, therefore, quashed the order of the respondents whereby the petitioner’s husband was declared as ‘deserter’ and dismissed from service.The Court further directed respondents to release all service/pensionary benefits of the petitioner’s husband in favour of the rightful claimant(s) in accordance with the applicable rules..Advocate Aseem Sawhney argued on behalf of the petitioner, while Assistant Solicitor General of India, Vishal Sharma represented the Union of India..[Read Judgment]