Soldier whose whereabouts unknown for more than 7 years, presumed dead and not a ‘deserter’: Jammu & Kashmir High Court

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU THROUGH VIRTUAL MODE) OWP No. 1440 2017 Reserved on 17.12.2020 Pronounced on 24 .12.2020 Madhu Devi Union of India and others Through : Mr. Aseem Sawhney Advocate Through : Mr. Vishal Sharma ASGI Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE JUDGEMENT The petitioner has filed the instant writ petition seeking declaration that her husband namely Asha Ram HC GD No.861330131 be declared as dead in terms of Section 108 of India Evidence Act. A Writ of Certiorari to quash the order of respondents whereby the missing husband of the petitioner has been declared as ‘deserter’ has also been sought. Briefly stated the case of the petitioner is that her husband was serving as Head Constable in 16 Battalion CRPF and was last posted at Civil Lines Mathua UP. The Group Centre of the said Battalion is stated to be 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 back. The petitioner tried to contact her husband but was unable to do so whereafter she informed respondent No.3 about the same. The respondents also began a search for the OWP No. 1440 2017 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. In June 2010 a communication was received by the petitioner from respondents No.3 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 vide letter dated 12.06.2010 informing respondent No.3 that she has no knowledge about the whereabouts of her husband and requested respondent No.2 to inform her about the whereabouts of her husband at the earliest. On 09.11.2010 the petitioner addressed another communication to respondent No.2 requesting him to make all out 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. In the above circumstances the petitioner was left with no option but to approach this Court by filing a petition bearing HC(W) No. 53 2011 whereby she sought a Writ of Habeas Corpus directing the respondents herein as well as the State of UP to produce her husband namely Asha Ram before this Court. Various status reports were called from the concerned police in the aforesaid petition to indicate the whereabouts of the petitioner’s husband but it was reported that he could not be traced. It is the contention of the petitioner that her husband has not been heard of by the family for the last more than seven years and even the respondents have been unable to trace him despite making all out efforts including issuance of notices in the Print and Electronic Media. On this ground it is urged by the petitioner that her husband be declared as dead and the order of the respondents whereby he has been declared as OWP No. 1440 2017 ‘deserter’ be quashed. The respondents have resisted the petition by filing objections thereto. In their objections the respondents have submitted that on 03.06.2010 when the husband of the petitioner was posted in 16 Bn of CRPF at FCI Campus Ganeshra he went to the market to purchase vegetables etc. for the Mess but did not return to Campus. The search parties were sent out to trace him in local area Bus Stand and Railway Station but to no avail. FIR came to be lodged in this regard with Highway Police Station Mathura on 04.06.2010 and a letter was also addressed to SP District Chamoli but the petitioner’s husband could not be traced. It is further averred in the objections that on 10.06.2010 a warrant of arrest was issued against the petitioner’s husband in accordance with the standing procedure but in spite of this he could not be traced. A Court of Enquiry was also conducted and petitioner’s husband was declared as deserter from CRPF w.e.f 03.06.2010 in terms of order dated 06.09.2010. A Departmental Enquiry was ordered against the petitioner’s husband under Section 11(1) of CRPF Act 1979 read with Rule 27 of CRPF Rules 1955 and on the basis of the said Departmental Enquiry charges were found established against the petitioner’s husband. Consequently in terms of order dated 31.03.2011 punishment of dismissal from service was imposed upon the petitioner’s husband. I have heard learned counsel for the parties and perused the record of the It is an admitted case of the parties that the petitioner’s husband is missing from 03.06.2010. FIR has been registered in this regard with Highway Police Station Mathura. The respondents wrote a communication to the petitioner in June 2010 informing her that her husband was missing w.e.f OWP No. 1440 2017 03.06.2010 and she was asked to direct her husband to report for duty. The petitioner has placed on record a letter dated 12.06.2010 whereby she had responded to letter dated 04.06.2010 of respondents informing them that her husband had not come to home and she had made a further request to the respondents to trace out her husband as at the time when he went missing he was on duty in the CRPF Unit at Mathura. Again on 09.12.2010 the petitioner addressed another communication to the Director General of CRPF making a similar request. The petitioner also filed a Habeas Corpus Petition bearing HCP(W) No. 53 2011 before this Court. The record of the said petition is connected to the instant case and a perusal thereof shows that from time to time the Court has sought status reports from the respondents with regard to whereabouts of the petitioner’s husband. All these status reports reveal that the respondents herein as well as the UP Police have made all out efforts to trace out the husband of the petitioner for all these years but without any success. From the aforesaid sequence of events it is established that the petitioner’s husband has remained untraceable and his whereabouts are not known since 03.06.2010. Section 108 of Indian Evidence Act casts burden of proving that a person is alive who has not been heard of for seven years upon the person who affirms it. The provision reads as under: “108. Burden of proving that person is alive who has not been heard of for seven years—Provided that when the question is whether a man is alive or dead and it is proved that he 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 isthe person who affirms it ” OWP No. 1440 2017 Here the petitioner has placed on record material to show that her husband could not be traced for more than seven years i.e. w.e.f 03.06.2010. The respondents are also not in a position to state that the petitioner’s husband is alive. 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 question remains as to whether the respondents could have on the basis of an enquiry declared petitioner’s husband as ‘deserter’ in the circumstances as narrated hereinbefore. The word ‘desert’ has been defined in Oxford English Dictionary to mean: callous or treacherously abandon leave causing it to appear empty andillegaly run away from the military service. In the context of the present case 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. As already noted having regard to the facts of the instant case 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. It is a case where the petitioner’s husband was not available at all for joining the duties as such he could not report for duty. 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. In my aforesaid view I am supported by the judgment of Madras High Court in N. Pankajam vs. State of Tamil Nadu in accordance with the With the aforesaid observations this petition stands disposed of. applicable rules. 24 .12.2019 Sanjeev PS Judge Sanjay Dhar) Whether order is speaking: Yes Whether order is reportable:Yes 

Summary: If any soldier’s whereabouts are unknown or who has not been heard of from the last ten years will be presumed “dead”. The Jammu &amp; Kashmir High Court presided over by Hon’ble Justice Sanjay Dhar in the case of Madhu Devi V/s Union of India &amp; Ors., [OWP 1440 of 2017]. Desertion is an act of abandonment of military duty without permission and with an intention of not returning back for more than 10 years. In the instant case, it was found that husband of Madhu devi (Petitioner), serving as Head constable in 16 Battalion CRPF went missing in June 2010. Petitioner was being informed by the Company Commander Unit about the missing of her husband. Both respondent and petitioner tried to contact the soldier, but were unable to do so. As a result, on September 6, 2010, petitioner’s husband was declared as ‘Deserter’ from CRPF by the court. Later on, Petition was being filed by the petitioner asking to declare her husband as ‘Dead’ and not ‘Deserter” on the grounds that from the last 7 years since she’s been trying to find her husband and has also issued notices on different media platforms but all her efforts went in vain. Petitioner also argued that respondents themselves couldn’t trace her husband’s whereabouts in the last more than 7 years i.e, w.e.f 3-06-2010. The court relied on the case of N. Pankajam V/s State of Tamil Nadu (Writ Petition No. 5480) where Madras court dealt with somewhat similar circumstances. The Court after hearing the arguments of both the parties came to a conclusion that since it’s been more than 7 years from the day soldier went missing and none of the parties have been able to trace and prove if the soldier is still alive, he’s no more to be considered as ‘Deserter’ and must be presumed ‘Dead’ according to Section 108 of Indian Evidence Act.