Soldier Missing for More Than 7 Years can be Presumed to be Dead: J&K HC

A single-judge Bench of Justice Sanjay Dhar ruled that desertion is the act of illegally running away from military service and a person whose whereabouts are unknown for the last more than 10 years cannot be said to have illegally run away from military service.

HC directs CRPF to provide all the benefits to the family of the presumably dead person

The court while hearing a petition filed by the petitioner Madhu Devi (Madhu Devi v. Union of India) held that a CRPF soldier missing for the last seven years can be presumed to be dead under Section 108 of the Indian Evidence Act and therefore, directed the CRPF authorities to provide all the necessary benefits to the family of the missing person.

The petitioner seeks a declaration from the court, stating that Asha Ram (her husband) is dead as per Section 108 and to quash the order of the respondent, declaring him to be a ‘deserter’

An earlier enquiry had declared the missing constable Asharam as deserter

In the present case, Asha Ram was a Head Constable in 16 Battalion CRPF. He was posted at Civil Lines Mathura, Uttar Pradesh. The Group Centre of the stated Battalion was at Ban Talab, Jammu where he was allotted a  residential quarter.

The petitioner in July 2019, received a phone call from the Company Commander of the Unit, informing her that her husband had gone to fetch some vegetables, but didn’t come back. After that, she tried to contact him but was unable to do so.

The respondents also started searching for him, but couldn’t ascertain his whereabouts. 

The respondents stopped Asharam's salary credits and also declared him as a deserter through an order dated September 6, 2010.

Further, it was submitted that in June 2010, It was communicated to her by the respondent that her husband is absent from duty, in case he will not join back, a warrant of arrest will be issued against him. On which she said that she doesn’t have any idea about his whereabouts and pleaded before the respondents to trace him at the earliest.

Now the petitioner argued that she and her family was not aware of her husband's whereabouts for more than seven years, even the respondents have not been able to trace him. Therefore the petitioner's husband should be declared as dead and the order declaring him ‘deserter’ should be quashed.

Declaring Asha Ram as ‘deserter’ and dismissing him from service is unsustainable in law: J&K HC

In light of the arguments, the bench held that the petitioner has provided the necessary evidence to show that her husband couldn’t be traced for more than seven years.

Further, the bench said that Section 108 of Indian Evidence Act, casts the burden of proving that a person is alive, who has not been heard of for seven years, upon the person who affirms it. Thus the respondent cannot state that Asha Ram is alive.

Therefore, the respondent’s action of declaring Asha Ram as ‘deserter’ and thereafter handing down the punishment of dismissal to him, is unsustainable in law.

Further, the court quashed the order declaring Asha Ram as ‘deserter’ and directed respondents to release all service/pensionary benefits of Asha Ram in favour of the rightful claimant in accordance with the applicable rules.