Arrest Before Judgment under CPC: Meaning, Procedure & Legal Relevance
The Code of Civil Procedure, 1908 (CPC) provides for certain preventive measures to ensure the ends of justice are not defeated. One such measure is “Arrest before Judgment”, which empowers the court to detain a defendant if there is apprehension that he may abscond or evade the court process.
What is Arrest Before Judgment?
Arrest before judgment refers to the provisional arrest of a defendant, before a final decree is passed, when the court believes that the defendant is likely to abscond or fraudulently dispose of property to avoid the consequences of a likely judgment against him.
Legal Provision: Order 38 Rule 1 of CPC
“Where at any stage of a suit… the court is satisfied… that the defendant is about to abscond or leave the jurisdiction of the court with intent to delay or defeat the execution of any decree… the plaintiff may apply to the court to arrest the defendant.”
Objective of Arrest Before Judgment
- To prevent abuse of the legal process
- To ensure the presence of the defendant during trial and execution
- To protect the plaintiff’s right to recover the decretal amount
Conditions for Arrest Before Judgment
The court must be satisfied that:
- There is a strong prima facie case in favor of the plaintiff
- The defendant is likely to abscond or leave the jurisdiction
- The intention of the defendant is to defeat or delay the decree
- There is credible material or affidavit supporting the plaintiff’s apprehension
Procedure for Arrest Before Judgment
Step 1: Application by Plaintiff
The plaintiff files an application under Order 38 Rule 1, supported by affidavit and facts proving intention of the defendant to abscond.
Step 2: Court Examination
The court considers the urgency, material facts, and evidence.
Step 3: Issuance of Warrant
If satisfied, the court may issue a warrant of arrest directing the arrest of the defendant.
Step 4: Security from Defendant
The defendant can avoid arrest or obtain release by:
- Furnishing security to assure his appearance and/or
- Ensuring compliance with the final decree
Limitation & Safeguards
- Not a punishment, but a preventive step
- Must not be used to harass the defendant
- Requires strict compliance with procedure and application of judicial mind
Case Law: Premraj Mundra v. Md. Maneck Gazi (AIR 1951 Cal 156)
Held that arrest before judgment is extraordinary relief and should not be granted casually.
Summary Table: Arrest Before Judgment
| Aspect | Details |
|---|---|
| Governing Law | Order 38 Rule 1 of CPC |
| Purpose | Prevent defendant from absconding or frustrating execution |
| Who Can Apply | Plaintiff |
| When Applicable | Any stage before judgment |
| Relief Against Arrest | Furnishing security or bond |
| Safeguards | Judicial satisfaction, Affidavit, No harassment of defendant |
| Nature of Action | Preventive & civil, not punitive |
Arrest Before Judgment vs Arrest in Criminal Law
| Criteria | Arrest Before Judgment (Civil) | Arrest in Criminal Law |
|---|---|---|
| Purpose | To secure presence for trial/execution | Punishment or investigation |
| Based on | Risk of absconding | Commission of an offence |
| Governing Law | CPC (Order 38 Rule 1) | CrPC and IPC |
| Bail/Security | Allowed | Depends on offence |