Jaggarnath Prasad Sahu vs Ganesh Lal Saraugi

Wort, J.—This matter comes before this Court on appeal from the Subordinate Judge, who has decided that the arrest of the appellant at the hands of the decree-holder as a form of execution was legal arrest. Shortly the contention of the judgment-debtor-appellant is that he had protection of S. 135, Civil P.C. which gives protection from arrest in execution to patties, their pleaders, mukhtears and witnesses while going to or attending a tribunal before whom they have business or before whom they have been summoned.

One of the matters in dispute in this case is whether on the evidence it can be held that at the time of the arrest, which was at about 6.30 in the evening on 4th September of this year, the appellant was returning to his lodgings from Court. A further contention is put forward by the learned advocate on behalf of the appellant that as the business upon which he was engaged had not finished and that he was to attend the Court of the Sub-divisional Magistrate on the morning of 5th September, he had protection throughout the night of 4th September until the business was finished in the Court of the Sub-divisional Magistrate and he had returned to his home which was at Haidernagar. The Courts which he attended on 4th September and which he alleges he had to attend again on 5th September were at Daltonganj to which he had come on the morning of 4th September by train. A warrant of arrest had been issued, and the first Court to which the appellant went on the morning of 4th September was the Court of the Subordinate Judge where he asked for protection from arrest by reason of the fact that he had to attend case as defendant in the Magistrate''s Court. Having petitioned the Subordinate Judge he proceeded to the Court of the Magistrate and was convicted by that Magistrate for an offence under the Indian Penal Code and fined a sum of Rs. 30 or seven days'' imprisonment. It would appear from the evidence before us that the Magistrate in that case delivered his judgment at about 2 to 2.30 on the afternoon of 4th September. What happened after that was at first in controversy. The appellant attended two Courts. He came back to the Subordinate Judge''s Court at which he had attended in the morning and at whose hands the appellant asked for protection. He also attended the Court of the Sub-divisional Magistrate with regard to certain proceedings under S. 145, Criminal P.C. Undoubtedly he had been summoned there and it would appear that the question which was to be determined there was some matter relating to costs. It was contended by the learned advocate on behalf of the appellant that the Court to which the appellant first went was the Court of the Subordinate Judge and that from there he went on to the Court of the Sub-divisional Magistrate. This point is of some importance having regard to the time at which he was arrested, which, as I have already stated, is at 6:30 in the evening. It was contended, as I have said, that the Subordinate Judge was the first Court which the appellant attended. The purpose of his attendance at the Court of the Subordinate Judge was to again petition the Subordinate Judge and to assert that the protection which had been granted by the Subordinate Judge in the morning had not been effective and that he was being harassed by the decree-holder and a large number of persons led by the Nazir. But it does appear to me quite clear from the petition which was filed before the Subordinate Judge from whose order this appeal has been preferred, that what happened was that he first of all attended the Court of the Sub-divisional Magistrate and after attendence there he proceeded to the Court of the Subordinate Judge and stated what I have already referred to. At first he suggested that he should himself surrender and be taken under arrest. It appeared to him that that was a better course than to be harassed by the decree-holder and his men. However he seems to have changed his mind as regards that and ultimately left the Court of the Subordinate Judge. The time at which he left, as I have already stated, is material. It would appear first of all from para. 8 of the petition, which he presented to the Deputy Magistrate, Subordinate Judge, that the order of the Sub-divisional Magistrate was made at 6.30 in the evening. Having regard to the admitted fact that he was arrested at 6.30 in the evening and at a place which was not the Court of the Sub-divisional Magistrate, it is impossible in my judgment to hold that the statement in para. 8 is correct, more particularly having regard to what the appellant asserted in para. 9 of his petition. He there states (and he is addressing the Subordinate Judge it must be remembered) that he:

made a submission yesterday before your honour at about 5 p.m. in the presence of the decree-holder''s pleader, Babu Bhagwat Sahai, and other men of the decree-holder to the effect that as your petitioner had been detained by the orders of the Sub-divisional Officer he still claimed exemption from arrest and your petitioner also showed the summons of the Court to the decree-holder''s pleader which is attached herewith.

He expresses himself in the past tense when he refers to the proceedings before the Sub-divisional Officer; in other words, he is there asserting before the Court of the Subordinate Judge that he came away from the Sub-divisional Magistrate''s Court, that no order had been passed and that it was necessary for him to attend the next day. That is the substance of his assertion in para. 9 of the petition. It is therefore clear that the time when he attended the last Court on 4th September was about 5 o''clock. It is an admitted fact that his temporary-lodgings with his pleader were situate in the jail compound, a distance of about two to three hundred yards away from the Court. It is clear from his own petition that he had no business in the Court after about 5 o''clock or 5.30, and it will be remembered that he was arrested at 6.30 in the evening. There is only one possible conclusion, in my judgment, which can be gathered from those statements and that was that, as the respondent-decree-holder suggests, having left his lodgings he was arrested at 6.30 p.m., which, as I have indicated, clearly shows that he was not returning to his lodgings at the time of his arrest. If that be so, apart from the second question which the learned advocate on behalf of the appellant has argued, it seems to me quite clear, as the Subordinate Judge himself has found, that the arrest was a legal arrest.

The only question to be determined is whether in spite of the fact which, as I have already stated more than once, seems to have been clearly established that he had left his temporary lodgings and was taking a walk at the time of his arrest, he still had the protection of S. 135, Civil P.C. For this proposition the case of Kedarnath Shersingdas v. Nomanbhai Koorban Hoosein, 1931 Bom 175 = 131 IC 407 = 55 Bom 612 is cited. There were certain proceedings which the petitioner had to attend in the High Court of Bombay. For that purpose he came several days before the case was to come on. As it ultimately appeared the case did not come on for a very long time after his arrival in the city of Bombay, the reason being the illness of the learned Judge who was to try the suit. He had taken up his residence or temporary lodgings in Bombay and was arrested on leaving those lodgings on a certain date. The question there was whether as long as he was in the city of Bombay and waiting for his case to come on he had the protection of S. 135, Civil P.C. Wadia, J., relying upon a decision in the case of Persso v. Persse, 5 HLC 671 decided that he had. With great respect to the learned Judge it seems to me that, whether the reasoning which he has given for his judgment is correct or not, no reliance could be placed upon the case to which I have referred for the reason that the Lord Chancellor in that case was dealing with a set of facts entirely different from those which Wadia, J. was dealing. The Lord Chencellor in that case had observed that some latitude should be allowed in a case where the party was not resident in the city in which his case was heard, and the only point which came up for determination in that case was whether a party, who had come to the city where the case was to be heard some days before the case came on, was entitled to protection during that period. Wadia, J., refers to a number of cases to which I do not propose to make reference for the simple reason that they are not strictly in point as regards the matter we have to decide. They mostly deal with questions of deviation from the ordinary way from the Court to the home of the witness or party as the case may be. It seems to me that the case must be decided on what appears, in my judgment, to be the plain construction of S. 135, Civil P.C. It is admitted in the first place that had the appellant lived at Daltonganj, the place where the Court was situate, he would have protection only during that time in which he was coming from his home to the Court or returning from the Court to his home; but if he left his house in the meantime he was liable to be arrested and would not have protection of S. 135. It comes to this therefore whether a person who comes from a distance to a place in which the Court is situate has any wider protection than a person who lives in the place where the Court is situate. In my judgment it would be straining the words of S. 135 to hold that there was such a right of protection. If the wider protection were given it would mean that the person claiming exemption from arrest during the course of the hearing of the case however long it may be, was at liberty to do as he pleased: he would have a wider protection than that which the section gives him during his journey, from his home to the Court and from the Court to his home. The words of the section are:

while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.

It seems to me that the principle which would apply to a person living in the place in which the Court is situate must be applied to the person who takes up temporary lodgings in that place, that is to say, the protection extends only from his temporary lodgings to the Court or from the Court to his temporary lodgings.

On the facts as they appear from the petition to which I have already referred, I have no doubt in my mind, that at the time of the arrest the appellant was not returning from the Court to his temporary lodgings and therefore for the reasons which I have-given on the second point it seems to me that the only conclusion we can arrive at is that the arrest was legal. The appeal is therefore dismissed, but without costs.

James, J.

I agree.