HC amends rules to bolster legal safeguards for soldiers
Srinagar, Jul 26: The High Court of J&K and Ladakh has carried out an amendment to Jammu and Kashmir General Rules (Civil) for the guidance of District and Subordinate Courts of Jammu and Kashmir and Ladakh to safeguard the legal rights of the military personnel.
The Registrar General (officiating) of the High Court, M K Sharma, issued a notification in this regard on July 25.
“In exercise of the powers conferred by Article 227 of the Constitution of India read with Section 122 of the Code of Civil Procedure, 1908 and all other powers enabling in this behalf, the High Court of Jammu and Kashmir and Ladakh with the previous approval of the Lieutenant Governor, hereby makes amendment to the ‘Jammu and Kashmir General Rules (Civil) of Svt 1978, (for the Guidance of District and Subordinate Courts of J&K and Ladakh),” reads the notification.
Regarding the amenability to the civil courts of persons subject to military law, all persons belonging to the armed forces are amenable to the jurisdiction of ordinary civil courts subject and are liable to certain procedural requirements as regards their personal appearance in court and execution of decree against their persons, pay and allowances and military equipment, according to the amendment.
According to the notification, a memorandum has been drawn by the Government of India showing the legal position concerning the persons belonging to the Army officers.
“When any officer or soldier actually serving government in military capacity is a party to a suit and cannot obtain leave of absence for prosecuting or defending a suit, he can appoint some other person to act on his behalf by an authority in writing given in the manner prescribed in Order XXVIII of the Code of Civil Procedure,” the notification reads.
The amendment refers to Section 29 of the Army and Air Force Act that provides that no person subject to either of these acts, so long as he belongs to the armed force, can be arrested for debt under any process issued by or by the authority of a civil or revenue court or a revenue officer.
“Where, in spite of this, any such arrest is made, the court of the revenue officer concerned, on receipt of a complaint by such person or by his superior officer to that effect, may discharge him and award reasonable costs to the complainants,” the notification read.
The amendment underscores that the costs may be recovered in like manner as if they were awarded to him by a decree against the person obtaining the processes.
“No court fees are payable for the recovery of such costs,” it says.
It also has a provision for the immunity of persons attending courts martial from arrest.
The amendment underlines that “under Section 30 of the Army and Air Force Act, no presiding officer or member of a court martial, no judge, advocate, no party to any proceedings before a court martial, or his legal practitioner or agent, and no witness acting in obedience to a summons to attend a court martial while proceeding to, attending or returning from, a court martial is liable to be arrested under civil or revenue process”.
“If any such person is arrested under any such process, he may be discharged by order of the court martial,” it says.
The amendment also delineates priority in respect of Army Air Force personnel’s litigation, stating that under Section 32 of the Army and Air Force Act on the presentation to any court by or on behalf of any person subject to either of these acts of a certificate, from the proper military and Air Force authority, of leave of absence having been granted to or applied for by him for the purpose of prosecuting or defending any suit or other proceeding in such court, court shall on the application of such person, arrange, so far as may be possible, for the hearing and final disposal of such suit or other proceedings within the period of the leave so granted or applied for.
The amendment also provides clarification regarding succession certificate proceedings under the Indian Succession Act, 1925.
“A ‘party to any proceeding’ is a person actually impleaded for example a plaintiff or defendant or an appellant or respondent - and the phrase does not include persons named under section 372, sub section (1), clause (c) of the Indian succession Act, 1925, in an application for the grant of a certificate until the court has, by order under Section 373 (1) (a) of that Act, expressed the opinion that special notice of the application should be given to them,” it reads.
