A person can be arrested when he/she go against the law. In Criminal procedure code, 1908 the provisions relating to the arrest of a person been stated in chapter V, section 41 – 60. This code does not define the term arrest. Physical restraint and deprivation of liberty is not arrest. Arrest means “apprehension of person by legal authority resulting in deprivation of his liberty”. This code permits two mode of arrest (a) with warrant (b) without warrant (sec.46). A person can be arrested by police officer, magistrate, and any private person. When non-bailable offence and cognizable offence are held in presence of private person, then the person have right to arrest the offender (sec.43). The police can arrest the offender with warrant in case of non-cognizable offence and without warrant in case of cognizable offence (sec.41). There is no need of warrant when the arrest is done by magistrate (sec.44).[i]
In civil court, various civil cases are been handled. When a person (plaintiff) filing a complaint against another person to solve a dispute or problem between them. Agency or business can also file a case or be sued in civil court. There are different types of claims in civil cases, here are some
- Tort claims
- Equitable claims
- Breach of contract claims
- Tenant / Landlord claims[ii]
The plaintiff usually claims for damages or injunction. To win a civil case the person should have strong evidence i.e. preponderance of the evidence than the other side. The decree holder has many options for executing a decree. In absence of any special circumstances the court cannot compel him to invoke a particular mode of execution. The decree can be executed by arrest and detention of the judgment debtor when the decree is for payment for money for specific performance of a contract or for injunction. On the other hand when the decree is against a corporation, it can be executed by detention of its directors in the civil prison.
Person who are exempted from arrest in civil case
- Judicial officers
- Members of legislative bodies
- Any person or classes of persons, whose arrest, might cause danger / inconvenience to the public (sec.55 (2))
- When the amount does not exceed Rs. 2,000 then the judgment debtor cannot be arrested
- The parties, their pleaders, revenue agents and recognised agents and their witness cannot be arrested
Provisions under CPC
Arresting a judgment debtor in execution of a decree can be done at any hour, any day, and to be presented before the court as soon as possible, detention can be in civil prison of the district, when it is not suitable for accommodation the state government may appoint in any of the court.
Firstly, no person shall be arrested on dwelling house after sunset and before sunrise.
Secondly, no door to be broken on dwelling house unless the judgment debtor is hiding or refuses to appear before the officer the door can be broken in dwelling.
Thirdly, if judgment debtor is occupied in a room along with a woman, whose custom not to appear in the public, then the officer can ask the women to withdraw her custom by giving a notice.
Fourthly, where the judgment debtor is arrested in execution of a decree for payment of money, when the judgment debtor pays the amount back then he shall be released (sec.55 (1)).
Where the judgment debtor can state in court that he is insolvent, and it should be complied with the provisions of the law of insolvency (sec.55 (3)). In this code where the judgment debtor is not prevented from arrest, even second time on same decree, where he is released on the application of the judgment creditor.[iii] Where the judgment debtor cannot be arrested or imprisoned for the default in payment of instalments.[iv] Where the judgment debtor should apply for insolvency within one month, the court shall not extent the period of one month. This is not applicable to section 148.[v]
Women can be exempted from arrest in execution of decree in payment of money. In case a woman is a plaintiff, then she is asked to give security. When the sum not exceeding five thousand rupees, then the period shall not exceed three months, where the sum which is not exceeding two thousand rupees, then the period not to exceed six weeks (sec.58). When the decree against him is fully satisfied then he shall be released. This section does not apply to cases of imprisonment for contempt of court.[vi] Where the warrant has been issued against the judgment debtor, the court may cancel the arrest due to serious illness, and he can also be released if health condition is not good. The judgment debtor can be rearrested, the period which may exceed in section 58.
Yes, the person can be arrested in the civil case. The law regarding the arrest and detention under section55- 59, 135, 135 – A, Order XXI, rules 37 – 40, under Civil Procedure code. Where the period in which he sent to jail is less when compared to criminal case. Arrest can be made in mesne or final process.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[iii] Subhani v. Sadho ram,37 P.R. 1873
[iv] Damodar v. Malhari, I.L.R. 7 bom 106
[v] Narasinha v. Rangachari, AIR 1926 mad 689
[vi] Martin v. Lawrence, (1879) 4 cal 655