Arrest and detention

Before committing to prison, Executing Court has to provide judgment debtor an opportunity of showing cause regarding his committing to prison and upon his satisfaction that judgment debtor has means to pay amount of decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, then he can be sent to civil prison

In such case, Executing Court is under legal obligation to provide justiciable reasons thereof

Executing Court committed serious illegality while not providing petitioner/judgment debtor proper opportunity of showing cause regarding his committing to prison due to non-payment of decretal amount

When law required a thing to done in a particular manner, then the same has to be done in that very manner or it should not be done at all

High Court set aside order passed by Executing Court

Revision was allowed, in circumstances.

Appellant/judgment-debtor was aggrieved of order passed by Executing Court issuing warrants of arrest to recover decretal amount

Validity

Warrants of arrest of judgment-debtor could only be issued in cases where Court was satisfied that in order to obstruct or delay execution of decree, judgment-debtor was likely to abscond or leave limits of Court or had, after institution of suit in which 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 judgment-debtor has, or had means to pay the amount of decree or some substantial part thereof and refuses or neglects or had refused or neglected to pay the same, or decree was for a sum for which judgment-debtor was bound in a fiduciary capacity to account for

Without satisfaction of such pre-conditions no mechanical order for detention in prison could be passed against appellant/judgment-debtor

Order whereby warrants of arrest of appellant/judgment-debtor were issued was not sustainable and serious attempt for sale of mortgaged property through open auction was required to be made so that outstanding decretal amount could be recovered from appellant/judgment-debtor without straightaway adopting process of issuance of warrants of arrest against him for execution of decree through arrest and detention

High Court set aside the order issuing warrants of arrest against appellant/judgment-debtor

High Court directed Executing Court to proceed further with execution proceedings by holding auction of mortgaged property, in accordance with law

Appeal was allowed, in circumstances.

Allegation against the petitioner which prompted the order of detention under S. 3, Maintenance of Public Order Ordinance, 1960 was his involvement in timber smuggling

Number of complaints had been lodged against petitioner

High Court observed that when a proper law for forest offenders was available and accused could safely be charged under the said law and convicted and stayed behind the bars for a longer term rather than being detained for a period of one month only invoking the provisions of S. 3 of Maintenance of Public Order Ordinance, 1960 by the authorities was not proper

Deputy Commissioner had resorted to the use of Maintenance of Public Order Ordinance, 1960 without comprehending the relevant law

Constitutional petition was accepted and orders passed by the Deputy Commissioner was declared to be illegal and without jurisdiction.

Case registered against accused under Central Excise Act, 1944, was declared without lawful authority by High Court in exercise of its constitutional jurisdiction

Validity

Initiation of criminal proceedings, its investigation and trial was to be conducted in accordance with procedure laid down in S. 13 of Central Excise Act, 1944

Recording of information under S. 13(10) of Central Excise Act, 1944, in register of arrest and detention mentioning names of persons arrested, giving details of information regarding crime itself amounted to registration of a criminal case on the basis of which complaint could be filed before Special Court in the nature of police report under S.173, Cr.P.C.

Supreme Court modified judgment passed by High Court

Appeal was allowed.

Absence of FIR does not, in any way, take away or affect powers of Central Excise Officer to arrest an accused under Central Excise Act, 1944, to carry out inquiry into an offence and to file complaint before Special Court

Provision of S. 13(10) of Central Excise Act, 1944, in fact provides for its own Register called "Register for Arrest and Detention" in which details are to be mentioned

Form prescribed under Police Rules, 1934, for recording of FIR may not be used by Central Excise Officer for recording information regarding offence under Central Excise Act, 1944, its exclusion has no bearing on criminal proceedings.

Case registered against accused under Central Excise Act, 1944, was declared without lawful authority by High Court in exercise of its constitutional jurisdiction

Validity

Initiation of criminal proceedings, its investigation and trial was to be conducted in accordance with procedure laid down in S. 13 of Central Excise Act, 1944

Recording of information under S. 13(10) of Central Excise Act, 1944, in register of arrest and detention mentioning names of persons arrested, giving details of information regarding crime itself amounted to registration of a criminal case on the basis of which complaint could be filed before Special Court in the nature of police report under S.173, Cr.P.C.

Supreme Court modified judgment passed by High Court

Appeal was allowed.