Introduction 

There are several provisions in the Civil Procedure Code, 1908 (CPC) that provide for arrest and detention.

Provisions in CPC Relating to Arrest and Detention 

• Section 51 of CPC 
  • Section 51 provides that the Court may on application of decree holder order execution of the decree by following ways: 
    • By delivery of any property specifically decreed.  
    • By attachment and sale or by sale without attachment of any property. 
    • By arrest and detention in prison. 
    • By appointing a receiver. 
    • In such other manner as the nature of the relief granted may require. 
  • Proviso to Section 51 provides that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied. 
  • That the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree-  
    • Is likely to abscond or leave the local limits of the jurisdiction of the Court, or  
    • Has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or 
  • That the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or 
  • That the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
• Section 55 of CPC 
  • Section 55 of CPC provides for execution of decree by arrest or detention. 
  • Section 55 (1) provides that a judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the State Government may appoint for the detention of persons ordered by the Courts of such district to be detained. 
  • There are four provisos attached to Section 55 (1): 
    • Firstly, that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise; 
    • Secondly, that no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorized to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found; 
    • Thirdly, that, if the room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest; 
    • Fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him. 
  • Section 55 (2) provides that the State Government may, by notification in the Official Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the State Government in this behalf. 
  • Section 55 (3) provides that  where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he may be discharged, if he has not committed any act of bad faith regarding the subject of the application and if he complies with provisions of the law of insolvency for the time being in force. 
  • Section 55 (4) provides that where a judgment-debtor express his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realized or commit him to the civil prison in execution of the decree.
• Section 56 of CPC 
  • Section 56 of CPC provides that the Court shall not order the arrest and detention in civil prison of a woman in execution of a decree for payment of money.
• Section 58 of CPC 
  • Section 58 of CPC provides for provisions relating to detention and release. 
  • Section 58 (1) provides that a person shall be detained in civil prison for following duration: 

• Section 58 (1A) provides that where the amount of decree does not exceed 2,000 no order of detention shall be made. 
• Section 58 (2) provides that a judgment-debtor released from detention under this section -  
  • Shall not merely by reason of his release be discharged from his debt. 
  •  He shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.
• Section 59 of CPC 
  • Section 59 of CPC provides for release on ground of illness. 
  • Section 59 (1) provides that at any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on the ground of his serious illness.  
  • Section 59 (2) provides that where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison. 
  • Section 59 (3) provides that where a judgment-debtor has been committed to the civil prison, he may be released therefrom— 
    • By the State Government, on the ground of the existence of any infectious or contagious disease, 
    • By the committing Court, or any Court to which that Court is subordinate, on the ground of his suffering from any serious illness. 
  • Section 59 (4) provides that a judgment-debtor released under this section may be re-arrested, but the period of his detention in civil prison shall not in the aggregate exceed that prescribed by section 58.   

Provisions in CPC Relating to Exemption from Arrest and Detention 

• Section 135 of CPC 
  • Section 135 of CPC provides for exemption from arrest under civil process. 
  • Section 135 (1) provides that no Judge, Magistrate or judicial officer shall be liable to arrest: 
    • While going to 
    • Presiding in or 
    • Returning from Court 
  • Section 135 (2) provides that where any matter is pending before the Tribunal having jurisdiction or believing it has jurisdiction the parties thereto, their pleaders, mukhtars, revenue-agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal. 
  • Section 135 (3) provides that nothing in sub-section (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution or where such judgment-debtor attends to show cause why he should not be committed to prison in execution of a decree.
• Section 135 A of CPC 
  • Section 135 A of CPC provides for exemption of members of Legislative bodies from arrest or detention under civil process. 
  • Section 135 A (1) provides the following shall be exempted from arrest: 
    • If he is a member of 
      • Either House of Parliament 
      • The Legislative Assembly or Legislative Council of State 
      • Legislative Assembly of Union Territory 
      • During the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council. 
    • If he is a member of any committee of 
      • Either House of Parliament 
      • The Legislative Assembly of a State or Union Territory 
      • The Legislative Council of a State 
      • During the continuance of any meeting of such committee 
    • If he is a member of  
      • Either House of Parliament, or 
      • A Legislative Assembly or Legislative Council of a State having both the houses 
      • During the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or, Houses of the State Legislature, as the case may be, and during the forty days before and after such meeting, sitting or conference 

Arrest under Order XXXVIII and Order XXXIX 

• Order XXXVIII: Arrest Before Judgment: 
  • Order XXXVIII Rule 4 of CPC provides that where the defendant fails to comply with any order under Rule 2 or Rule 3 the Court may commit him to civil prison until the decision of the suit or, where a decree is passed against the defendant, until the decree has been satisfied: 
  • Proviso 1 provides that no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed fifty rupees:  
  • Proviso 2 provides that no person shall be detained in prison after he has complied with the order.
• Order XXXIX: Temporary Injunction 
  • Order XXXIX Rule 2A of CPC provides for Consequence in case of breach or disobedience of injunction. 
  • The consequence of breach or disobedience of injunction is that the person guilty may be detained in civil prison for a term not exceeding 3 months.
• Order XXI of CPC 
  • Order XXI Rule 37 of CPC provides that where application for execution of decree of payment of decree by arrest instead of issuing the warrant of arrest the Court may issue a notice calling upon him to appear before the Court and show cause why he should not be arrested. Where no appearance has been made in obedience of notice the Court may issue a warrant for arrest of the judgment debtor. 
  • Order XXI Rule 38 of CPC provides that every warrant for arrest shall direct the officer entrusted to bring before the court the person liable with all convenient speed. 
  • Order XXI Rule 40 of CPC provides for proceedings on appearance of judgment debtor in obedience to notice or after arrest. 
  • Clause (1) provides that when a person is brought or appears before Court on notice or arrest, the Court shall proceed to hear him and take all evidence in support of application for execution and shall give the judgment debtor opportunity of showing cause why he should not be committed to civil prison. 
  • Clause (2) provides that pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required. 
  • Clause (3) provides that upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of the Code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest. 
  • Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied. 
  • Clause (4) provides that a judgment-debtor released under this rule may be re-arrested. 
  • Clause (5) provides when the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release. 

Conclusion

CPC provides for several provisions with respect to arrest and detention of a person. There are indeed several limitations attached to it. The provisions in CPC itself provide for such limitations.