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| HC presumes “missing” CRPF soldier to be “dead” | | Quashes orders declaring soldier as deserter, directs all benefits for soldier’s family | | EARLY TIMES REPORT
JAMMU, Jan 2: 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 the CRPF authorities to give all consequential benefits to the family of the said missing person. Justice Sanjay Dhar has quashed the order of the 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 M/s 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 the order of respondents whereby the missing husband of the petitioner has been declared as ‘deserter’ has also been sought.
Justice Sanjay Dhar observed “ 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.” “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 Judge further observed “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. “
The High Court allowed the writ petition and the 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, are quashed. The respondents are directed to release all the service/pensionary benefits of the petitioner’s husband in favour of the rightful claimant(s) in accordance with the applicable rules. (JNF)
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