Arrest

Arrest Whether there are any limitations: Women are exempted from arrest in execution of money decree (Sec.56 C.P.C) Certain class of persons are exempted from arrest (Sec.55 (2) CPC) If the decree is for not more than Rs.2000/-, arrest cannot be ordered. For restrictions on arrest read Sec. 135 and Sec.135-A C.P.C. Steps to be taken before ordering the detention of the J.Dr. in Civil prison. (a) issue notice under Order 21 Rule 37 – Form No.12/Appendix E of CPC (b) If J.Dr. fails to appear in response to Rule 37 notice; then Rule37 (2) warrant must be issued for production of the J.Dr. – Form No.13/Appendix E of CPC (c) If J.Dr appears in response to Rule 37 notice or if the J.Dr is produced on Rule 37(2) Warrant of arrest, means enquiry must be conducted under Order 21 Rule 40 CPC. The Court has to inform the JDR that he is at liberty to file insolvency proceedings – Sec.55 (3) CPC If the JDR expresses his intention to file I.P within one month he can released on security. Sec.55 (4) CPC If the J.Dr is prepared to give security when he is produced under Rule 37(2) Warrant, he must be released. If the JDR obtains protection order U/s 23 of Provencial Insolvency Act the JDR must be released. If J.Dr has refused to give security, he can be kept under Court guard custody [O.21 R.40(2)] F/14A/Appendix E CPC and the Court should conduct means enquiry expeditiously. The Court has to inform that the J Dr is at liberty to file insolvency proceedings. (d) to order arrest of the J.Dr who is a Government Servant, a seven days prior notice must be given to the Head of the Institution.Rule 241 civil rules of practice (e) The subsistence allowance must be paid by the D.Hr. see Rule O.21 R.39(1) of C.P.C. (f) while conducting the means enquiry, Sec.60 of C.P.C. must also be taken into consideration (g) enquiry as to means is necessary : read R.V.J.Sastry Vs.Bank of India ( 1978 (2) A.L.T.335) Kasi Subbaiah Mudali _vs_ Kasi Veraswamy Mudali & Others( 2002(3) A.L.T. 240) K. Manoharan –vs- A.V.Subbanna (AIR 2002 Mad. 340) K.Harikrishna Vs.Dr.L.Raghunatha Rao 2004 (5) ALT 52) No detailed enquiry is necessary as in a Civil suit. Please Read - (K.Munirathnam Vs. D.Bhaskar Naidu)2006 (4) ALT 169 Challa Sivakumar Reddy Vs Kudumula Surender (2008 (1) ALT 335) (Standard of Proof) (h) The grounds to detain the JDR in civil prison See Sec.51 proviso (i) The period of detention in civil prison – Sec Sec.58 (1) CPC. If the decretal amount is between Rs.2000/- to Rs.5000/-, upto 6 weeks and if the decretal amount is more than Rs.5000/-, upto 3 months (maximum period of detention in a civil prison must not be more than 3 months) (k) Even before sending the J.Dr to civil prison, J.Dr can be released on furnishing security and also can be kept in court guard custody for not more than 15 days, to enable J.Dr to pay the decretal amount. O.21 R.40(3) proviso : Warrant of Commiittal – Form No.14A/Appendix E of CPC {A.P.Amendment} When can be released Read Sec.58 and Sec.59 release Order F/15/E/CPC To whom subsistance allowance must be paid Order 21 Rule 39 (2) Order 21 Rule 39 (3) Order 21 Rule 39 (4) Under Sec.57 amount is to be fixed by the Government. If the scales are not fixed by the court - Order 21 Rule 39 (2) J.Dr cannot be rearrested on release, for execution of the same decree. See Sec.58(2) C.P.C Expenses can be taken as costs of the suit (Or.21 Rule 39 (5) J.Dr can not be rearrested for recovery of the said sum. S.417 of Cr.P.C. --- J.D.R. is in Judicial Custody in Criminal Case