HC presumes ‘missing’ CRPF soldier as ‘dead’, directs all benefits for Jawan’s family



JAMMU: The High Court of J&K at Jammu- Bench comprising of Justice Sanjay Dhar has in a significant judgment has presumed a CRPF soldier missing from last seven years as dead and directed CRPF authorities to give all consequential benefits to family of aforesaid missing person. Justice Sanjay Dhar has also quashed order of respondents’ authorities declaring missing person as ‘deserter’.
This significant order was passed by the High Court after hearing Aseem Sawhney Advocate for the petitioner and Vishal Sharma ASGI for the respondents – Union of India in a petition filed by one Madhu Devi. The petitioner had filed this writ petition though A K Sawhney and Aseem Sawhney Advocates 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 and to quash order of respondents, whereby missing husband of the petitioner has been declared as ‘deserter’.
Aseem Sawhney argued before the Court that case of the petitioner is that her husband was serving as Head Constable in 16th Battalion CRPF and was last posted at Civil Lines Mathua (UP). The Group Centre of aforesaid Battalion is stated to be at Ban Talab, Jammu where 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 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 petitioner’s husband, but could not ascertain his whereabouts. The salary of husband of petitioner was stopped and burden of rearing children comprising two sons and a daughter, fell upon shoulders of petitioner. In June 2010, a communication was received by 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 aforesaid communication vide letter dated June 12, 2010 informing respondent No.3 that she has no knowledge about whereabouts of her husband and requested respondent No.2 to inform her about the whereabouts of her husband at the earliest. On November 09, 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 charges of desertion of Unit against 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 through A K Sawhney and Aseem Sawhney Advocates, whereby she sought a writ of Habeas Corpus directing respondents herein as well as the State of UP to produce her husband, namely Asha Ram before the Court. Various status reports were called from concerned police authorities in aforesaid petition to indicate whereabouts of the petitioner’s husband, but it was reported that he could not be traced. It is contention of the petitioner that her husband has not been heard of by family for the last more than seven years and even respondents have been unable to trace him despite making all out efforts including issuance of notices in Print and Electronic Media. On this ground, it is urged by the petitioner that her husband be declared as OWP No. 1440/ dead and order of the respondents whereby he has been declared as ‘deserter’ be quashed.
The respondents through Vishal Sharma ASGI resisted petition by filing objections thereto. In their objections, the respondents have submitted that on June 03, 2010 when the husband of the petitioner was posted in 16 Bn of CRPF at FCI Campus, Ganeshra (Mathura), he went to 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. A FIR was lodged in this regard with Highway Police Station, Mathura on June 4, 2010 and a letter was also addressed to SP District Chamoli (Uttrakhand), but the petitioner’s husband could not be traced.
Justice Sanjay Dhar observed, “From aforesaid sequence of events, it is established that the petitioner’s husband has remained untraceable and his whereabouts are not known since June 3, 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. 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 June 3, 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 Judge further observed, “In context of the present case, the word ‘deserter’ would mean illegally run away from military service. A person, whose whereabouts are unknown and who has not been heard of for last more than 10 years, can’t be stated to have illegally run away from his service. As already noted, having regard to 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 respondents in declaring the petitioner’s husband as ‘deserter’ and thereafter handing down the punishment of dismissal to him, is unsustainable in law. As such, the High Court allowed the writ petition and petitioner’s husband, namely Asha Ram is presumed to be dead. The orders of the respondents whereby the petitioner’s husband has been declared as ‘deserter’ and has been dismissed from service, were also quashed. The respondents were directed to release all the service/ pensionary benefits of the petitioner’s husband in favour of rightful claimant(s) in accordance with the applicable rules.


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