Abstract
civil courts of a country are established to settle the dispute of the litigating parties by applying the prevailing civil laws. In civil justice system the provisions of arrest, detention and imprisonment are not common as the aim of this system is to enforce the right of the party on the basis of the evidence produced before the court. But in some exceptional cases the civil courts have to resort to the provisions of arrest, detention and imprisonment specified in the civil procedural law. Applications of these ultimate provisions in civil matters are rarely observed in the civil proceeding in the legal system of Bangladesh. This present writing is aimed at to find out the reasons of practical inapplicability and to recommend the necessary amendments in the provisions of arrest, detention and imprisonment in the civil justice system.
Introduction:
In a given legal system of a country there are two types of justice systems namely civil justice system and criminal justice system to administer justice. The purposes and ends of these two different justice systems are quite different and procedures of administering justice are also significantly different. The main purpose of civil justice system is to determine and uphold the various rights of the people while the main purpose of the criminal justice system is to maintain peace and tranquility in the society by bringing the offenders before courts of law and sentencing the convicts by sending jail in the name of imprisonment. Generally the concept of arrest, detention, imprisonment and fine are available in case of criminal justice system and these are not resorted in civil matter. But in some exceptional civil cases the provisions of arrest, detention and imprisonment come into the scene for smooth administration of civil justice. The nature of arrest, detention and imprisonment in civil justice system is dissimilar in many ways from the provisions of arrest, detention and imprisonment in criminal justice
system. In reality the judges of civil courts are reluctant in application of the provisions of arrest, detention and imprisonment in the judicial proceedings and they use these weapons as the last resort to uphold the rights of the litigants and end of justice.
Different stages of civil suit:
For better understanding of the present topic it is advisable here to discuss the different stages of a civil suit in a short manner. One of the major characteristics of adversarial legal system is that civil litigation process is a contest between two parties. Bangladesh belongs to adversarial legal system and under this system in civil litigation the two parties are the plaintiff on one hand and the defendant on the other hand. Under this process the court takes a non partisan role and the court does not play any role in the inquiry into the events rather arrange a hearing between the parties to decide within the complex set of rule whether the plaintiff is entitled to the right claimed which the defendant denies. In civil proceeding the standard of proof is the balance of probabilities namely more probably true than false. Thus if the plaintiff can establish a prima facie case before the court in favor of his claim and other parties does not adduce any evidence in his defense the court should deliver judgment in favor of plaintiff. Balance of evidence in favor of plaintiff on civil proceeding is also commonly known as the prima facie case and if the plaintiff fails to raise the prima facie case the court should deliver judgment in favor of defendant on the basis of ‘no case to answer’. The whole civil judicial proceeding in courts is regulated by the different provisions of the Code of Civil Procedure-1908 and the Civil Rules and Order (C. R. O).
The stages of civil proceeding may be broadly categorized into the following stages:
(1) Pre-trail stage
(2) Trail Stage
(3) Post trial stage
court. If a proceeding does not commence on the presentation of plaint it is not a suit even if a judgment may be passed in such proceeding. Plaint is considered to be document by presentation of which in a civil court, a party seeks relief from such court.2
Summon: Once the suit is filed successfully a summon is to be issued upon the defendant to appear on a date specified in the summon to appear and answer the claim.
Filing Written Statement:
If the summon is duly served upon the defendant and a written statement containing the answer of the claim of plaintiff and his own claim is to be submitted to the court on the date fixed on the summon. Filing of written statement is obligatory and non-filing of written statement will be considered as of the facts by the defendants3
Alternative Dispute Resolution:
By incorporating section 89A in the Code Alternative Dispute Resolution
(ADR) was formally introduced in our legal system. Incorporation of
ADR in the civil proceeding is groundbreaking step taken by the
Government of Bangladesh.4 At this stage the court takes an attempt to
mediate the dispute between the parties avoiding the formal procedure of
litigation.
First Hearing:
If the ADR process fails the court shall proceed from the stage at which the suit stood before the decision of ADR. At this stage court will examine the pleadings of the parties and try to determine the core of dispute.
Framing Issues:
At this stage the court will determine the issue of the suit. Issue arises
when material proposition of fact and law is affirmed by one party and
denied by the other party.
Step under Section 30:
After framing issue the court may give order on application of the parties
with regard to the delivery and answering of interrogatories, the admission
of document and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence.
Settling Date (SD):
Now the court settles a date for peremptory hearing that is date for trial.
Trial Stage:
Opening the case:
It is the right of the plaintiff to open the case and at this stage the plaintiff
states the nature of the case, issue in the case, evidence of the witnesses.
Peremptory Hearing (P H):
At this stage the plaintiff and defendant examine their own witness and
cross-examine the witnesses of the other and may re-examine the witness.
Argument:
After hearing the evidence of the witness of both parties the respective
pleaders will be called upon to argue their case.
Post-trial stage:
Pronouncement of judgment:
Once the hearing is complete the court will pronounce judgment at once or reserve the judgment for future date. Every judgment contains (i) a concise statement of the case (ii) points for determination (iii) decision theron (iv) reasons for decision.
Decree:
By the words of decree the court specifically determines and pronounces
the rights of the parties in the present dispute.
Execution of decree:
This is the last stage of a civil proceeding and by application of the decree holder the court takes necessary step to execute the decree.
The question of arrest and detention in the civil proceeding may come either at the trial stage or at the post trial stage. Apart from the two parties namely plaintiff and defendant in civil suit the existence of witness is indispensable for delivery of justice. So the plaintiff, defendant and witness are the role characters in a civil suit.
Arrest and detention at or before trial stage:
Arrest and detention of witness:
Generally it is the duty of the parties of the suit to bring their own witness at their own initiative. But for smooth operation of justice between the parties sometimes the court issues summon to the witness to appear before court to adduce evidence or to produce documents which is to be used as evidence in the present proceeding. If the witness fails to comply with the summon the court may order to arrest and detain him. Section 32 of the Code of Civil Procedure provides that the Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may issue a warrant for his arrest. It is again provided in the Code that where the court see the reason to believe that the evidence of the person summoned or the production of document under the possession of that person is material and that such person has without lawful excuse failed to attend or to produce the document or has intentionally avoided the service it may issue a proclamation requiring him to attend to give evidence or to produce document and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.5 In lieu of or at the time of issuing proclamation or at any time afterwards the court may in its discretion issue a warrant either with or without bail for the arrest of such person.6 Generally the civil courts do not apply this harsh provision for attendance of witness rather in rare case courts use this power to compel the attendance of recalcitrant witness. The rule being highly penal, the court should construe the rule strictly and apply the rule only when the witness summoned neither appears nor gives any lawful excuse.7
Arrest and detention of Defendant:
hi the civil proceeding the presence of defendant is imperative to settle the core of dispute between the parties and to determine the truth of the claim of plaintiff. Again if it is noticed at the earlier stage of the suit that there is strong probability (prima facie) of success of claim of plaintiff it is the duty of court to take necessary steps against any activities of the defendant which is aimed at to frustrate the plaintiffs claim. The Code of Civil
Procedure prescribes specific provision in this regard that where at any stage of the suit the court is satisfied by affidavit or otherwise that the defendant with the intent to delay the plaintiff or to avoid any process of the court or to obstruct or to delay the execution of any decree that may be passed against him (i) has absconded or left the local limit of the jurisdiction of the court or (ii) is about to abscond or leave the local limit of the jurisdiction of the court or (iii) has deposed of or removed from the local limit of the jurisdiction of the court his property or any part thereof the court may issue the warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance.8 Again where at any stage of the suit the court is satisfied by affidavit or otherwise that the defendant is about to leave Bangladesh under the circumstances affording reasonable probability that the plaintiff will or may thereby obstructed or delayed in the execution of any decree that may be passed against defendant in the suit the court may issue the warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance.9 Before exercising this extra-ordinary power the court must be satisfied that the plaintiff must have unimpeachable prima facie case in his favor. For the satisfaction of the court the applicant must make some concrete allegations and produce sufficient materials in support of the allegations.10 Where the suit is for determination of the right to immovable property the court can not pass an order of arrest of the defendant under Order XXXVIII Rule 1 or in exercise of inherent power.11 Again it is provided that where the defendant fails to show such cause the court shall order him to deposit either money or property or furnish security or surety for his appearance. The person who gives the surety for appearance of defendant may apply to the court to be discharged from his obligation and in that case court shall summon or issue warrant of arrest to the defendant to appear before court and furnish fresh security.12
Arrest and detention at post trial stage:
As mentioned earlier that the last stage of a civil proceeding is the execution of the decree passed by the court. Apart from the other modes of execution of decree the court may on the application of the decree holder
8 The Code of Civil Procedure, Order XXXVIII Rule l(a)
9 The Code of Civil Procedure, Order XXXVIII Rule 1 (b)
10 Lawrence Loat Ltd Vs AJAX Inc 1997 BLD 159 Mosharraf Hossain Vs Hasian Begum, 43 DLR 254
12The Code of Civil Procedure, Order XXXVIII Rule 2 and 3
order the execution of the decree by arrest and detention in prison. Provided 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-
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree, –
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or
(ii) 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
(b) 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
(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.13 The provision of execution of decree by arrest and detention in civil prison should be applied by the court as the last resort of execution of decree. Simple default by the judgment debtor in paying the decretal amount is not enough for ordering arrest rather it must be shown that the judgment debtor is having funds and he is purposely delaying payment.14 In case of decree to pay the money the judgment debtor must be given the opportunity to pay the amount by installments. Again it is provided that where an application is for the execution of a decree for the payment of money by the arrest and detention in the in the civil prison of judgment debtor who is liable to be arrested in pursuance of the application the court shall instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on the day to specified in the notice and show cause why he should not be committed to the civil prison.
Provided that such notice shall not be necessary if the court is satisfied that with the object or effect of delaying the execution of the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the court. Where appearance is not made in obedience to
The Code of Civil Procedure, Section 51. Alagapon Vs Rajaguru & Co, AIR 1985 Mad 353.
the notice the court shall if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.15
Procedure of arrest in civil proceeding:
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 Government may appoint for the detention of persons ordered by the Courts of such district to be detained:
Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise:
Provided, 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.16
Provided, 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.
Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the court with all convenient speed unless the amount which he has been ordered to pay be sooner paid.17
Period of Detention in Civil Prison:
Every person detained in the civil prison in execution of a decree shall be so detained,-
15 The Code of Civil Procedure, Order XXI Rule 37
16 The Code of Civil Procedure, Section 55.
17 The Code of Civil Procedure, Order XXI Rule 37
(a) Where the decree is for the payment of a sum of money exceeding fifty Taka, for a period of six months, and,
(b) hi any other case for a period of six weeks.18
In case of arrest before pronouncing judgment no person shall be detained in prison for a longer period than six months nor for the longer period than six weeks when the amount or value of the subject matter of the suit does not exceed fifty taka.1 The court has no power to fix a shorter period than prescribed time.20
Subsistence allowance for detainee:
Unlike the criminal justice system the government does not pay any subsistence allowance for any person who is undergoing civil imprisonment. Subsistence allowance of the person in civil prison has to be provided to prison authority by the person on whose application the judgment debtor is kept in prison. The Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors. No judgment debtor shall be arrested in execution of a decree unless and until the decree holder pays to the court such sum as the judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the court. Where a judgment debtor is committed to the civil prison in execution of a decree the court shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fixed by the government or where no such scale have been fixed as it considers sufficient with reference to the class to which he belongs. The monthly allowance fixed by the court shall be supplied by the party on whose application the judgment-debtor has been arrested by monthly payment in advance before the first day each month. The first payment shall be made to the proper officer of court for such portion of the current month as remains unexpired before the judgment-debtor is committed to the civil prison and the subsequent payment shall be made to the officer in charge of the civil prison.21 The rules of subsistence allowance for judgment-debtor apply to the case of arrest before judgment.22
8 The Code of Civil Procedure, Section 58.
19 The Code of Civil Procedure, Order XXXVIII Rule 4
20 Sujan Vs Sagor, 5 CWN 145.
1 The Code of Civil Procedure, Order XXI Rule 39 22 Law of Civil Procedure By M. Mahmudul Islam and Probir Neogi at P.939
Release from Arrest and Detention:
When a person is arrested and detained in civil prison whether before or after judgment he can be released on different grounds mentioned in the Civil Procedure Code. If warrant of arrest is issued against defendant before judgment the he shall not be arrested if he pays to the officer entrusted with arrest with execution of warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs claim.23 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 the officer of the court for a specified period not exceeding fifteen days or release him on 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.24 Where the decree in execution of which judgment debtor is arrested is a decree of the payment of money and the debtor pays the amount of decree and the cost of arrest to the arresting officer such officer shall release him.25 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 the provisions of the law of insolvency for the time being in force. Where a judgment-debtor expresses 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.2
The executing court is bound to inform the arrested judgment-debtor that he may apply for insolvency.27
23 The Code of Civil Procedure, Order XXXVIII Rule 1
24 The Code of Civil Procedure, Order XXI Rule 40
25 The Code of Civil Procedure, section 55(1)
26 The Code of Civil Procedure, section 55(3 & 4)
27 Ram Vs Mackenzie, 50 PLR 1909
Every person detained in the civil prison in execution of a decree shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be,-
(1) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or
(ii) on the decree against him being otherwise fully satisfied, or
(iii) on the request of the person on whose application he has been so detained, or
(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance:
Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.
(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.28
The immunity from re-arrest is applicable only when the judgment-debtor is released from detention in jail and not when he was released after arrest without being committed to civil prison which means civil jail not the court house.29 Again a judgment-debtor may be released from prison on the ground of serious illness as government is not liable to pay subsistence allowance to him. 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. Where a judgment-debtor has been arrested the court may release him if in its opinion he is not in fit state of health to be detained in the civil prison. Where a judgment-debtor has been committed to the civil prison he may be released therefrom by the Government on the ground of the existence of any infectious or contagious disease or by the committing court or any court to which that court is subordinate on the ground of his suffering from any serious illness.30
Who can not be arrested:
In civil proceeding there are necessary limitations in respect of arrest, detention and imprisonment in civil prison either before or after judgment.
28 The Code of Civil Procedure, Section 58.
29 Rajendra Vs Chunder, ILR 23 Cal 123.
30 The Code of Civil Procedure, Section 59
Following persons is immunized against arrest, detention and imprisonment in civil prison:
(i) The President of the Peoples Republic of Bangladesh.31 (ii) The Government may by notification in the official Gazette declare that any person or class of persons whose arrest might be attended with danger and 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-it
Government in this behalf.
(iii) Notwithstanding anything contained in the provisions arrest and detention in civil proceedings the executing court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for payment of money.”13 But under Artho Rin Adalat Ain-2003 a woman can be arrested in execution of a decree for payment of money.
(iv) In a suit against a public officer in respect of any act purporting to be done by him in his official capacity the defendant shall not be liable to arrest.34
(v) No judge, Magistrate or other judicial officers shall be liable to arrest under civil process while going to, presiding in or returning from his court.35
(vi) Where any matter is pending before a tribunal having jurisdiction therein or believing in good faith that it has jurisdiction the parties thereto, their pleaders, mukhters, revenue agents, and their witnesses acting in obedience in summons shall be exempted from the arrest under civil process.36
(vii) No persons shall be liable to arrest or detention in prison under civil process (a) if he is a Member of Parliament during the continuance of any meeting of Parliament and during the fourteen days before and after of such meeting . (B) If he is the member of any committee of Parliament during the
The Constitution of B angladesh, Article 51.
The Code of Civil Procedure, Section 55 (2)
The Code of Civil Procedure, Section 56.
The Code of Civil Procedure, Section 81.
The Code of Civil Procedure, Section 135(1)
The Code of Civil Procedure, Section 135(2)
