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Secretary of State for India in Council Vs. Judah - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal652
AppellantSecretary of State for India in Council
RespondentJudah
Excerpt:
arrest - escape--release on recognizance--surrender under recognizance--recognizance, expiry of--arrest, fresh application for--civil procedure code (act xiv of 1882), sections 239, 241, 341, 349, 357--writ of attachment--criminal procedure code (act x of 1882), section 491. - .....the bail which he was required to do, accordingly was released. these proceedings went on from time to time, and defendant from time to time surrendered to his bail when he was required to do so. bail was renewed and he was released on bail until the proceedings ultimately came to an end. eventually they came to an end by the judge rejecting the defendant's application, declaring he was not entitled to the protection of the sections of the civil procedure code relating to insolvents. the defendant at that time had surrendered to his bail and was in court, and was to all intents and purposes in custody then under the warrant which had been originally issued, which had been executed by the sheriff; and if the plaintiff then intended that the imprisonment should continue, his business.....
Judgment:

W. Comer Petheram, C.J.

1. I think this application must be refused. It is an application made under these circumstances. The plaintiff obtained a decree on the Original Side of this Court as long ago as the beginning of the year for the recovery of a sum of Rs. 1,14,500 from the defendant, and in execution of that decree obtained an order for the arrest of the defendant, and issued a warrant to the Sheriff for his arrest, and by the terms of the warrant, the defendant was directed to be arrested or imprisoned on or before the 20th of February. In accordance with that warrant the Sheriff of Calcutta arrested the defendant on the 11th of February and lodged him in prison. Having done that the Sheriff had done his duty, and the defendant was in the custody of the jailor under the jurisdiction of the Court. That being the state of things, proceedings were taken at the instance of the defendant to obtain his discharge from imprisonment by the machinery provided for in the insolvency sections of the Civil Procedure Code. These proceedings were instituted by him on the day on which he was arrested, that is, on the 11th of February. They came before the Judge, who had jurisdiction in that matter, on the 3rd of March, after several adjournments. On the 13th of March, under Section 349, pending the proceedings under the insolvency sections of the Civil Procedure Code, the Judge having jurisdiction in that matter ordered him to be released on bail; the defendant giving the bail which he was required to do, accordingly was released. These proceedings went on from time to time, and defendant from time to time surrendered to his bail when he was required to do so. Bail was renewed and he was released on bail until the proceedings ultimately came to an end. Eventually they came to an end by the Judge rejecting the defendant's application, declaring he was not entitled to the protection of the sections of the Civil Procedure Code relating to insolvents. The defendant at that time had surrendered to his bail and was in Court, and was to all intents and purposes in custody then under the warrant which had been originally issued, which had been executed by the Sheriff; and if the plaintiff then intended that the imprisonment should continue, his business and duty was to have had the proper officer from the jail there who should take him into custody, his bail having expired, and reconvey him to the place from whence he had been released when he was released on bail. He did not do so for some reason or other. What that reason was I do not know; at all events, he did not do so, and the defendant remained at large, and is at large at this time. Now what the rights of the plaintiff are with reference to the existing warrant is not for me to say. Having regard to the provisions of Section 341 and subsequent sections, I am clearly of opinion that the Code only contemplates one arrest; and if the defendant is to be remitted to jail, or if he is in custody now, he is in custody under the original arrest, and can be in custody under no other. Section 254 is the section which provides that the decree or order which directs the payment of the money may be enforced in two ways: it may be enforced by the imprisonment of the judgment-debtor, or the attachment and sale of his property, and then the imprisonment which is directed under Section 254 is governed by the provisions of Section 341. Section 341 provides that if a man has been imprisoned, he shall be discharged in various ways, that is to say, upon the money being paid, the decree being satisfied, the creditor consenting to his release, the non-payment of the allowance by the creditor, the insolvency of the judgment-debtor, and the term of his imprisonment having expired. Now all these things obviously deal with one imprisonment only, and one arrest under Section 254, which is the arrest to enforce payment of the money. With that provision must be taken the insolvency section, which provides that, pending the enquiry as to whether the man shall be declared an insolvent, he is to be released on bail. The meaning of a man being released on bail, in theory at all events, is that he still remains in custody under the original warrant. The consequence is that, during the whole of the time that the defendant was out on bail, he was, in theory, in custody! under the original warrant: his imprisonment still continued: and if he was not remitted to jail at the end of his bail, it was the fault of the person who had to deal with the matter. Then comes Section 241, which provides that, where a man has been discharged under certain circumstances, he may be rearrested, but this is a provision applying to a case where execution has been stayed for a limited time, and the man released under that stay. That is a totally different state of things, it stays the execution and lease of the man, because there is no execution under which he should be in custody, and the provisions in the subsequent sections merely provide that, where proceedings have been stayed, and consequently the arrest has been inoperative, there may be another imprisonment, which shall be the one imprisonment under the section. I am of opinion, therefore, that the defendant having been once arrested there can be no other writ which can issue from this Court. Whether the party has the right to re-arrest him under the original writ, or what are those rights, or what his liabilities may be, is a totally different matter. As I said before, I think, that this Court having once granted an order for the defendant's arrest, and he having been arrested under that order, it is not open to it to grant another order, and therefore this application must be refused.


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