One whose whereabouts unknown for more than 7 years not “deserter”, but be presumed dead: HC


Jammu: Setting aside a 10-year-old order of the CRPF declaring a missing head constable as “deserter’’, the Jammu and Kashmir High Court here ruled that he can be presumed “dead’’.

Referring to the Oxford Dictionary, Justice Sanjay Dhar said that the word “desert’’ in context of the present case, 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,’’ he observed.

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, Justice Dhar said, adding that 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,” he observed, holding that the action of the respondents in declaring petitioner’s husband as “deserter’’ and thereafter handlin down the punishment of dismissal to him, is unsustainable in law.

He 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.

The court was hearing a plea by one Madhu Devi who had challenged the declaration of her husband Asha Ram as deserter and sought he be declared dead in terms of Section 108 of the Indian Evidence Act.

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.