Jammu and Kashmir HC nixes ‘deserter’ tag: ‘Missing constable can be presumed dead’

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

Referring to the Oxford dictionary, Justice Sanjay Dhar said that the word “desert’’, in the context of the present case, would mean illegally running 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,’’ Justice Dhar observed.

Section 108 of Indian Evidence Act, the court said, casts the burden of proving that a person is alive and has not been heard of for seven years, upon the person who affirms it, Justice Dhar said. The court said that in the present case, respondent authorities (CRPF) are 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,” he observed.

Justice Dhar held that the respondents’ action in declaring the petitioner’s husband as “deserter’’, and thereafter handing down the punishment of dismissal to him, is unsustainable in law.

He also directed the respondents to release all service/pension 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 Madhu Devi, who had challenged the declaration of her husband—Asha Ram—as a deserter by the CRPF. In her petition, Madhu Devi sought that her husband should be declared dead in terms of Section 108 of the Evidence Act.

The petitioner’s case was that her husband was serving as Head Constable in 16 Battalion CRPF and was last posted at Civil Lines in Mathura, Uttar Pradesh. The group centre of the battalion was at Ban Talab, Jammu, where Asha Ram lived.

In June 2010, Madhu Devi got a call from the Company Commander of the Unit, informing her that her husband had gone to fetch vegetables and did not return. The petitioner tried to contact him, but in vain. Thereafter, she said, she informed the CRPF respondents. The family has not heard from him since.