By Tashmayee Sarkhel
Published on: 07 September, 2022 at 19:57 IST
This article includes what is an arrest, what is detention, when arrest and detention may be ordered, who cannot be arrested, procedures to be followed, the period of detention, and many more as such related aspects to the concept of arrest and detention under CPC (Civil Procedure Code).
The court will issue a decree under the Code of Civil Procedure (hence referred to as CPC) to determine the rights and liabilities of the parties involved in a dispute. The decree-holder is the individual who receives the decree, whereas the judgment debtor is the person who receives the decree against them. Under civil law, a decree can be issued in a variety of ways. “Arrest and detention” are one such method. Section 51 to 59 of the CPC, as well as Rules 30 to 40 of Order XXI, deal with the law of arrest and detention.
An arrest is when a person is apprehended and taken into custody (for legal protection or control), usually because they are suspected of or seen committing a crime. The person can be interrogated and/or charged after being taken into custody. An arrest is a practice in the criminal justice system that is occasionally carried out once a court warrant is issued.
Arrest powers are held by police and other officers. A citizen’s arrest is legal in some jurisdictions; for example, in England and Wales, anybody can arrest “anyone whom he has reasonable grounds for thinking is committing, has committed, or is convicted of committing an indictable offense,” albeit certain requirements must be met beforehand.
If a person is caught in the act of committing a crime and is unwilling or unable to show a legitimate ID, similar powers exist in France, Italy, Germany, Austria, and Switzerland.
Detention is the process of a state or private citizen lawfully detaining a person and taking away their freedom or liberty at that moment. This could be due to (pending) criminal charges or to protect a person or property. Being detained does not always entail being brought to a specific location (often referred to as a detention center) for interrogation or punishment for a crime (see prison). For the same reasons, the phrase can be applied to property ownership. An arrest may or may not have preceded or followed the process of detention.
Article 9 of the Universal Declaration of Human Rights provides that “no one shall be subjected to arbitrary arrest, detention or exile.” The Fourth Geneva Convention governs the treatment of detainees during international conflicts.
It’s a corrective provision. It aims to give the decree-holder a remedy when litigation is determined in his favor. If the judgment debtor fails to comply with the decision issued against him, such a remedy can include his arrest and incarceration.
When is it permissible to order arrest and detention?
When a decree-holder approaches the court to have a decree executed, Section 51(c) of the CPC states that the court may execute the order by arresting and detaining the judgment debtor.
The following cases listed in Order XXI may result in an arrest and detention order:
- A decree for the payment of money can be carried out under Rule 30 by the arrest and detention of the judgment debtor.
- When the decree is for a specific moveable person, it can be carried out by the arrest and detention of the judgment debtor under Rule 31.
- When the decree is for a particular execution of a contract or an injunction, the court can enforce it by arresting and detaining the judgment debtor under Rule 32.
Who is immune to being detained?
Under the various provisions of the CPC, certain classes of people are free from arrest and detention. These people include:
- According to Section 56, women.
- Section 135(1) refers to judicial personnel.
- Their pleaders, mukhtars, revenue agents, and witnesses act by a summons when a case is pending 135(2).
- Section 135A refers to members of legislatures.
- Under Section 55(2), classes of persons whose arrest, according to the State Government, may cause public danger or inconvenience, and when the decretal amount is less than two thousand rupees, under Section 58 (1A).
Section 55 outlines the procedures to be followed for arrest and detention. It states that during the execution of a decree, a judgment debtor can be arrested at any hour or on any day and that the individual must then be brought before the court. There are, however, some restrictions on admission and time. These are the details:
- It is forbidden to enter a dwelling house after nightfall and before morning.
- That no outer door shall be smashed to gain access to a house unless the judgment debtor occupies the house and refuses to allow access.
- If the room is occupied by a woman who is not the judgment debtor and does not appear in public due to customs, the officer must provide her with the appropriate time and opportunity to leave.
- He shall not be arrested if there is a decree for the payment of money and the judgment-debtor pays the whole decretal amount as well as the costs of the arrest to the arresting officer.
A person who is to be arrested is handed a show-cause notice, which requires him to appear before the court and explain why he should not be committed to the civil prison in execution of the judgment. However, if the court is satisfied, by affidavit or otherwise, that delaying the execution will result in the judgment debtor absconding from the jurisdiction, such notification is not required.
If the judgment debtor fails to appear in court after being served with the notice, the court may issue an arrest warrant if the decree-holder so requests.
According to Order XXI Rule 40, if a person comes to court after receiving the notice under Rule 37, the court shall hear the decree-holder for the implementation of the decree and then provide the judgment-holder the opportunity to argue why he should not be arrested.
In the case of Mayadhar Bhoi v. Moti Dibya, the court held that if a money decree is not paid by the judgment debtor within thirty days of the date of the order, the court may order the judgment debtor to give an affidavit stating the particulars of his assets, and if the person disobeys the order, he can be detained for three months.
Court’s authority and responsibility:
Section 55 states that if a judgment debtor is arrested in the execution of a money judgment and is brought before the court, the court shall inform him that he is insolvent and that he can be discharged if he has not acted in bad faith about the subject of the application and complies with the insolvency law in effect at the time.
A judgment debtor shall not be arrested for the execution of the decree unless the decree-holder deposits the amount to the court, as determined by the judge, for the judgment debtor’s subsistence from the moment of arrest until he is taken before the court.
And, if such a person is committed to a civil prison, the court shall determine the subsistence as a monthly allowance by Section 57, or, if such scales are not fixed, the court shall fix what it thinks sufficient for that kind of person.
A judgment debtor may not be arrested to carry out the judgment unless the decree-holder pays the court an amount established by the judge to cover the judgment debtor’s subsistence from the time he is arrested until he is brought before the court.
If such a person is committed to a civil prison, the court shall calculate the subsistence as a monthly allowance by Section 57, or, if such scales are not determined, the court shall decide what it considers adequate for that type of person.
Reasons are written down:
Section 51 states that when a person has been allowed to show cause why he should not be detained, the court must be satisfied for reasons documented in writing:
- That the judgment debtor is likely to flee the jurisdiction of the court, or has dishonestly transferred, concealed, or removed his property, or has done any other conduct done in bad faith, with the intent of delaying the decree’s execution, or
- That the judgment debtor has the financial means to pay the full sum or a significant portion of it but refuses to do so, or
- Because of the fiduciary connection, the decretal amount must be paid.
Section 58 stipulates the length of time that a person can be detained, which is determined by the amount of the court’s decree against him and whether or not he has paid that decreed amount. It states that a person cannot be imprisoned for more than three months if the decretal sum exceeds five thousand rupees, and six weeks if the amount is between two and five thousand rupees. No order for detention of the judgment debtor can be made if the sum is less than two thousand rupees.
Debtor’s judgment is released:
A court-issued warrant for the arrest of a person can be rescinded at any moment if the judgment-debtor is suffering from a serious illness, according to Section 59. If such an arrest has already been made and the court determines that the person is not suitable to stay in jail, the court may order his release.
If the judgment debtor has been put to prison, he may be released by the State Government, if an infectious or contagious disease exists, or by the court that awarded the execution; or by any court superior to the above court, if the judgment debtor is suffering from a serious illness.
Re-arrest of judgment-debtor:
Any individual who has been freed on the grounds of serious illness under Section 59 can be arrested again, but the total period of custody should not exceed the time limit outlined in Section 58. Any person whose time of detention under Section 58 has expired may not be arrested again under the decree under which he was detained in the civil prison. Anyone who has been freed under Order XXI Rule 40 is subject to re-arrest.
The goal of arrest and detention is to provide relief to the decree-holder and to put the judgment debtor in civil prison if he fails to pay the decretal amount despite having the financial means to do so. It does, however, safeguard honest debtors whose inability to pay is due to a valid reason. To ensure adequate justice, the court must allow debtors to be heard.
Author – Tashmayee Sarkhel, currently pursuing a B.A.LL.B. (Hons.) at University Law College and Department of Studies in Law, Bangalore University.