Citizen's Arrest Compromises Right To Life And Personal Liberty, Adherence To Procedure Must Be Strict And Scrupulous: Delhi High Court

Observing that the arrest of any citizen compromises his right to life and personal liberty, the Delhi High Court has said that the adherence to any procedure, which affects the liberty of the citizen, has to be strict and scrupulous."The arrest of any citizen compromises his right to life and personal liberty, which are the most sanctified of the fundamental rights under Part III of the Constitution of India. Liberty is a sanctified preambular constitutional goal," Justice C Hari Shankar said.The court made the observation in an order on a plea filed by Cell Page Communication challenging the issuance of warrants against it by the Additional District Judge in 2019 in an execution proceeding of a money decree. The suit had earlier been decreed in favour of Vijay Shankar Pandey and against the Cell Page Communication for a sum of Rs 25 Lakh with simple interest at 9 percent from May 2014 till filing of the suit and pendente lite.On December 20, the ADJ had issued warrants of attachment of movable properties of the judgment debtor but the same were received back with the endorsement that "JD has left the given address". The same response was received when notice was issued to the judgment debtor on decree holder's application seeking issuance of warrants. On July 17 in 2019, the ADJ finally issued warrants of arrest. On August 16 in 2019, the ADJ directed the Bailiff to execute the warrants of arrest on or prior to October 01.It was then that the Cell Page Communication moved an application seeking recall of the August 16 order and cancellation of earlier warrants. It was argued that the decree holder knew that petitioner had an alternative address in Gurgaon as the same was provided in the memo of parties - the earlier notice and warrant were attempted to be served at its New Delhi address. The application was rejected by the ADJ on October 03, 2019.In the plea before high court against the dismissal order, the judgment debtor's counsel argued that the issuance of warrants of arrest against the petitioner in a case of execution of a money decree could not have been issued without a prior notice to show cause against such proposed arrest. Section 51 read with order XXI Rule 37 and Order XXI Rule 40 of the CPC was cited.Justice Shankar in the judgement dated October 11 said that the ADJ in the impugned order has noted the content that no show cause notice had ever been issued or served on the petitioner prior to issuance of warrants of arrest and that service of all summons and warrants of arrest had been attempted to be effected at the erstwhile New Delhi office of the petitioner, of which the petitioner was no longer in occupation. "The learned ADJ observes, nonetheless, that, as the petitioner had contested the suit instituted by the respondent, the petitioner could not plead ignorance of the judgment and decree dated 29th September 2018. Thereafter, the learned further observes as under: Learned Counsel for JD has failed to show as to why JD should not be sentenced to civil imprisonment for non- payment of the decretal amount. Therefore, no case is made out for recalling of order dated 16.08.2019," reads the order.Earlier, the high court had issued notice on the petition and stayed execution of the warrants of arrest subject to the petitioner deposition a sum of Rs 10 Lakhs with the Registrar General, in addition to an amount of Rs 5 Lakh which already stood deposited. However, petitioner's counsel on October 11 told the court that owing to financial situation, his client has not been able to deposit the Rs 10 Lakh amount as was directed on October 23 in 2019.Taking up the petition for a final decision, Justice Shankar said there is substance in both the contentions raised by the petitioner's counsel."Arrest and detention in prison is one of the modes by which Section 51 permits the executing court to enforce execution of a decree. This power is, however, expressly subject to the proviso to Section 51. It is well settled that a proviso is in the nature of an exception to the main provision. The proviso to Section 51 applies exclusively to a situation in which the decree under execution is a money decree, as in the present case. In such a case, there is an absolute proscription – as is reflected by the use of the words "shall not be ordered" – against execution of a money decree by detention in prison unless the protocol envisaged by the proviso is scrupulously followed," said the court.The court in this regard relied upon Madras & Southern Maharatta Rly. Co. Ltd. v. Bezwada Municipality, Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha.Observing that Section 51 prescribes a very rigid protocol before enforcing execution of a simplicitor money decree by detention of the judgment debtor in prison, the court said this protocol is mandatory and non-negotiable. Further, the court said Order XXI Rule 37 also applies where the execution application seeks execution of a money...

Citizen's Arrest Compromises Right To Life And Personal Liberty, Adherence To Procedure Must Be Strict And Scrupulous: Delhi High Court

Nupur Thapliyal

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