A civil court can issue warrant
One common misconception is that a criminal court alone can issue warrant to enforce attendance of a witness. But a civil court also can issue warrant and commit a person to civil prison. That can be done only after issuing summons or proclamation.
The police have power to involve in a criminal offence but not in a civil case. In civil case, it is the bailor, but not the police officer, who executes the warrant of a civil court.
CPC authorises issue of warrant
The Section 32 of the Civil Procedure Code, 1973 (CPC) provides for issuance of warrant. The Section 32 states as follows:
“Penalty for default. – The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may-
(a) issue a warrant for his arrest.”
Warrant to be issued only after summons
Such a warrant by a civil court can be issued only against a person against whom summons has been issued under Section 30 of the CPC.
The Section 30 of the CPC reads as follows: –
“Power to order discovery and the like.- Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,- (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid.”
A civil court can issue summons to person whose attendance is required to either to give evidence or to produce documents or other objects, to ensure his presence in the court.
If the court has issued summons and the witness has not turned up, it can issue warrant for his arrest under Section 32 of the CPC.
After the summons the court can issue proclamation
Warrant can only be issued as prescribed in Section 30 of the CPC.
The Order 16 Rule 10(3) of the CPC provides the procedure as “In lieu of or at the time of issuing such 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, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12”.
Interconnection of summons, proclamation & warrant
The Order 16 Rule 10 (2) of CPC interconnects the summons with the proclamation.
It states, “Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; 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”.
If the person fails to appear or to produce the document or avoided the service of summons, the court is empowered to issue a proclamation indicating that he is required to appear or to produce the document.
That means the Order 16 Rule 10(2) of the CPC connects the concept of summons and proclamation and the Rule-10(3) of the CPC in turn connects the concept of proclamation and warrant for arrest.
Bailable or non bailable warrant
Since the Order 16 Rule 10(3) of the CPC uses the phrase “issue a warrant, either with or without bail”, the warrant can be either bailable or non-bailable.
The warrant for arrest under these provisions cannot be issued against the defendant but can be issued against the witnesses only. The CPC does not prohibit calling a defendant as a witness of the plaintiff and in that case, such defendant really becomes a witness and the court can issue warrant to such a person.
Warrant can be issued to achieve ends of justice
The Section 94 of the CPC also speaks about arrest and committing him to civil prison in some conditions.
That means the CPC prescribes issuance of warrant against a defendant who fails to comply with an order for giving security for his appearance in the court, under Section 94 of the CPC.
The Order 38 Rule 1 prescribes the procedure for furnishing security for appearance and consequent action of arrest when he fails to do so, as follows:
“Where defendant may be called upon to furnish security for appearance.- Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,- (a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,- (i) has absconded or left the local limits of the jurisdiction of the Court, or (ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or (iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or (b) that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance”.
Issue of warrant to avoid frustrating the proceedings
In cases where a defendant does not appear in the court despite service of summons, the court can proceed against him ex-parte and pass a proper decree.
However, if the non-appearance of defendant is deliberate with a view to frustrate the entire legal proceeding, then the court can compel the appearance of a defendant through coercive mode of issue of warrant. But the issue of warrant or arrest should be done with all due caution and with a view to prevent the ends of justice from being defeated.
The order of arrest by a civil court is addressed to the Bailiff of the court and not to a police officer.
Issue of warrant in execution matters
The Section 51 of the CPC empowers arrest relating to execution matters. The Section reads as follows:
“Powers of Court to enforce execution. – Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-
(a)…..
(b)…..
(c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section”.
That means the court is duty bound to first issue a notice to the judgment debtor instead of directly issuing a warrant. However, if the JD does not appear in obedience to such notice, the court can then issue a warrant.
Conclusion
A civil court can issue warrant for arrest against any witness under CPC. Normally, a warrant cannot be issued against the defendant. A defendant has freedom to appear or not to appear in obedience to the summons. The court generally has no power to compel his appearance.
If the court finds that a defendant has not put his appearance despite service of summons or that he deliberately avoided the service, it can proceed with the proceedings in the case making him ex-parte. But warrant for arrest can be issued against a defendant if he has been called as a witness or to produce a document. A warrant for arrest can be issued even against a defendant in certain exceptional situation where there is probability of his abscondence with a view to frustrate the purpose of the suit.
In an execution of decree, a warrant for arrest can be issued against a Judgment Debtor.
All the warrants for arrest issued under the CPC are to be addressed to bailiff of the court. A civil court cannot direct the police to arrest a person for its proceeding under the CPC. Before issuance of warrant, preconditions for issuance of notice and subsistence allowance have to be complied with. Women cannot be arrested in execution of a money decree.
Further reading
