Gujarat High Court
Rameshbhai Bhagwanjibhai Thakkar vs State Of Gujarat on 18 April, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/11142/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 11142 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 2850 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2851 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2854 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2855 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2856 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2871 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2872 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2874 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2875 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2876 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2859 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2884 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 2886 of 2019
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RAMESHBHAI BHAGWANJIBHAI THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
AADITYA D BHATT(8580) for the Applicant(s) No. 1
CHANDNI S JOSHI(9490) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR HARDIK SONI ADDL. PUBLIC PROSECUTOR(2) for the Respondent(s)
No. 1
SERVED BY SPEED POST (N) for the Respondent(s) No. 3
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
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R/SCR.A/11142/2018 ORDER
Date : 18/04/2019
ORAL ORDER
Aggrieved by the exercise of powers under section 27 of the Consumer Protection Act, 1985 to be referred as (" C.P Act"), 1985. The petitioner is before this Court, challenging the legality and validity of the order dated 9.11.2017 of Palara Special Jail- Kutch Bhuj. He has raised the question whether it is permissible for the Consumer Court to exercise power under section 25 of the C.P Act ie, the powers akin to Civil Court, executing a decree, to detain any person under the judicial custody in the exercise of the said powers under section 25 of the Act without separately initiating the procedure under section 27 of the said Act. He has also further urged that under section 27 of the C.P Act, the offences are bailable and, therefore, Executing Court is not to grant bail to the person or to exercise its discretion and impose such bail conditions which are cumbersome. Further grievance of the petitioner is that when requisite procedure is not followed, it is not permissible for the Consumer Court to keep a person behind the bars for more than a year.
2. Factual matrix and legal questions raised in this group of petitions being identical the present group of petitions are, for adjudication taken together and factual matrix is drawn from Special Criminal Application No. 11142/2018, for the sake of convenience.
3. The petitioner, is the partner of Mahavir Developers, which has been registered as partnership firm, and subsequently registered as Hanumant Developers, registration no. GUJ/RJT/70389. The business of this firm is of land development. Initially the advertisement was published Page 2 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER by Mahavir Developers, District Bhuj,Kutch and many consumers had bought the plot on installment. Many of them had complained that despite having paid the total amount of installment for these plots, no registration of document has been carried out. The amount paid by each plot holder was Rs. 1, 25,000/- . The first installment since was paid on 15.3.2011, a request was made to return the amount of Rs 1, 25,000/- with 12% interest . Neither the amount was returned by the said firm, nor the plot had been registered in the name of purchaser. Therefore, eventually many litigations were preferred by the concerned consumers and the matter traveled right upto the National Comission, which directed to convert the land into non-agricultural land. Thereafter, the said litigating consumers were to be given the registered sale deed in their favour in 180 days time and till the same happened, every opponent/seller had to pay Rs 10,000/- to the person concerned. When challenged before the Apex Court, the said order was upheld.
4. As there was no compliance of the said order, a complaint was moved before the Consumer forum once again on 23.2.2016, seeking the prayer along the line of orders as directed by the National Commission.
4.1 The consumer forum, allowed the said complaint and directed the respondents i.e all the three partners of Mahavir Developers to pay to the complainant a sum of Rs 98,500/- ( ninety eight thousand, five hundred only ) with an interest @ 9% from 16.9.2015 with further Rs 15,000/- towards mental and physical harassment and cost of Rs 5000/-. In all, the amount directed to be paid to the petitioner was Rs Page 3 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER 1,14,000/-. The execution petition No. 9/2017, came to be filed for executing the decree of the consumer forum. The Consumer Court, issued bailable warrant against the respondents. The present petitioner was arrested from Anand and was presented before the Consumer Forum, pursuant to the issuance of warrant. He was taken in judicial custody on 9.11.2017, subject to further hearing on 18.11.2017. Thereafter, the matter went on being adjourned and eventually on 17.3.2018, subject to the petitioners payment of Rs 60,000/- , a surety of Rs 25,000/- and bond in each matter he was directed to be released. The Court also noted that there are about 20 execution petitions.
5. It is the grievance on the part of learned advocate, Mr. Aaditya Bhatt, who is representing this application, that the petitioner was sent to the jail without any procedure being followed. He has urged that the exercise of powers under section 25 would be different from the exercise of powers under section 27 and without following any procedure the consumer forum has chosen to send the petitioner to jail. There is no order also as to for what length of period he has been punished because even if the person is not in a position to pay the amount of bond/bail and is sent to the jail, it cannot be for an indefinite period. Here in the case of the petitioner, neither in the first order which has been passed on 1.10.2016 and thereafter, in the execution petition on 9.11.2017 and on 17.3.2018, there has been any mention of total period of imprisonment. He has urged that other parties have already approached the Appellate Court and therefore, the petitioner cannot be deprived of his right to approach Appellate forum. However, since his incarceration is without Page 4 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER following the procedure of law, he is before this Court. Reliance is placed on the decision in the Apex Court rendered in the case of 'Kamlesh Aggarwal Vs Narain Singh Dabbas and Anr (2015) 11 SCC, 661. He has also relied upon the decision of this Court rendered in Special Criminal Application No. 1634/2019 on 14.3.2019 wherein this Court had allowed the petition quashing the order passed by the Consumer Forum, Gandhinagar, holding that the orders of imprisonment was without following any procedure, as prescribed.
6. Notices have been served duly to the parties. However, private complainant have chosen not to appear. Learned APP, appearing for the State has urged that alternative forum is available and therefore, the petitioner should have availed the alternative remedy. He agreed that this Court, however, can exercise powers under Articles 226 and 227 of the Constitution of India. It is further urged by learned APP that there has to be sufficient safeguard for procuring presence of the petitioner, when he in his fairness agreed that proper procedure is a must before the Court takes recourse to Section 27 of the C.P Act.
7. This court finds on hearing both the sides, and on duly considering the material on record that the petitioner has defaulted in not complying with the directions issued by the National Commission. The consumers, therefore, had no other go but to approach the Consumer Forum. The petitioner has not preferred the Appeal after he was sent to judicial custody by the Consumer Forum for non-complaince of order, pursuant to the order of issuance of non-bailable warrant.
Page 5 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019R/SCR.A/11142/2018 ORDER Against the order, the petitioner has chosen to appear
straightway before this Court under Articles 226 and 227 of the Constitution of India. He has a scope to challenge the statutory order passed under section 25 of the C.P Act before the State Commission whereas against the order passed under section 27 of the C.P Act, the Appeal has been provided under section 27(A) of the C.P Act. However, with the plea that there has been no procedure followed under section 27of the C.P Act, instead of preferring Appeal under section 27A, the petitioner has chosen to approach this Court to quash and set aside the said order.
8. Ordinarily, when there is alternative remedy available, this Court would not prefer to intervene. There are decisions where the Apex Court has time and again emphasised and directed all the Courts not to entertain those petition where petitioners do not prefer to adhere to the statutory appeals and statutory provisions under C.P Act. However, the petitions in the instant cases have been entertained by this Court on having found there has been no following of any procedure, as otherwise required of the Court concerned. It is true that the matter has travelled upto the Apex Court so far as the default of making payment to the consumers is concerned. This Court notices that there had been a detailed direction issued by the Consumer Forum whereby the amount of Rs 1, 14,000/- had been directed to be given to the individual applicant on 1.10.2016, the petitioner and other partners have failed to pay and abide by the order and directions. Some of the consumers/ complaints preferred Execution Petition which eventually resulted into sending the present applicant to the jail without following due procedure.
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9. It is noteworthy that the petitioner is released on certain conditions however, he is unable to fulfill the same there is no specification of any period for his being languished in the jail. This, without any due procedure, would call for interference by striking balance between the right of individual liberty and the right of consumers.
9.1 Without separately adjudicating this issue of non following of procedure, this Court would deem it proper to refer the earlier decision on identical legal issue at this juncture.
12. On, thus, hearing learned Counsels on both the sides and on considering the various decisions, which have been pressed into service, this Court is conscious of the fact that statutory Forum when is created by law for redressal of grievance, writ petition is not to be entertained. The apex Court has not approved any interference of the High Court, ignoring the C.P. Act, which is a Code in itself, where there are appeals and other remedies are provided. 12.1 In the instant case, it has bee pointed out to this Court that the petitioner has already preferred an appeal against the judgment and order of the Consumer Protection before the State Consumer Disputes Redressal Commission ('the State Commission', herein after). However, in wake of the order of conviction and sentence of imprisonment for three years passed against him, the petitioner has approached this Court straightaway with a plea that without following the procedure of law no person can be sent to jail. It is this plea of his which has had this Court to entertain this petition has pressed into service the decision of the the Apex Court in the case of 'KAMLESH AGGARWAL' (Supra), where also, the Consumer Form had directed to send the defaulter to jail without following summary procedure or any other proceedings.
12.2 The Apex Court realizing that there had been order under Section 27(2) of conviction and sentence in the execution proceedings for non-implementation of the order passed by the District Forum, chose to modify the order of the State Commission in exercise of Page 7 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER power under Article 142 of the Constitution and remanded the matter to the District Forum to execute the decree and take penal action against the respondents by following the procedure under Section 262 read with Chapter XX and Section 251 of the Code in accordance with law. It also noted that at the time of passing of order, summary procedure had not been followed and the procedure, as provided under the Code and it did not deem it appropriate to remand the case to District Forum to follow procedure under Section 262 read with Chapter-XX and Section 251 of the Code.
13.Apt would be to regard the provisions of Section 27 of the C.P. Act, at this stage.
"27. Penalties.--(1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees, or with both:
(2)Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973.
(3)All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.
27A. (1) Notwithstanding anything contained in the Code of Criminal Page 8 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER Procedure, 1973, an appeal under section 27, both on facts and on law, shall lie from -
(a) the order made by the District Forum to the State Commission ;
(b) the order made by the State Commission to the National Commission; and
(c)the order made by the National Commission to the Supreme Court.
(2)Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State Commission or the National Commission.
(3)Every appeal under this section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State Commission or, as the case may be, the National Commission :
Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if, it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days."
13.1 It is quite clear from the provision of Section 27 of the C.P. Act, which provides that failure or omission or non-compliance of any order of the District Forum, the State Commission or the National Commission by any trader or a person against whom a complaint is made, shall be punishable by way of imprisonment of one month to three years or with fine of not less than Rs.2000/- rupees and which may extend to Rs.10,000/-. It is also held that accordingly, this provision of Section 27 of the C.P. Act is to be taken recourse to once the order has attained finality under Section 24 of the Act. Once this is taken recourse to, where, the District Forum or the State Commission or the National Commission shall have the powers of Judicial Magistrate, First Class, notwithstanding anything contained in the Code of Criminal Procedure for the trial of offences under this C.P. Act, and as per sub-Section (3) of Section 27 , all offences are to be tried summarily by the Forum or the Commission, as the case may be. In other words, this provision is to be taken recourse to once the order of the District Forum or the State Commission or the National Committee is not complied with, on account of omission or failure on the part of of the trader or the person against whom the complaint is made.Page 9 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019
R/SCR.A/11142/2018 ORDER 13.2 This being the penal provision, for trying any of the
offences, notwithstanding what is provided under the Code the District Forum or the State Consumer Forum or the National Commission, as the case may be, would be deemed to have the powers of a judicial magistrate first class. Procedure to be adopted by them is the summary procedure as prescribed under the Code under the Chapter-XXI. The question, therefore, would be whether the District Forum or the State Commission or the National Commission, for that matter, can straightaway, on omission or noncompliance of any order, exercise the powers under Section 27 of the C.P. Act and send a person to undergo imprisonment from one month to three years or before sentencing anyone, it is required to follow summary procedure.
13.3 Before this question is answered, yet, another provision being Section 25 of the said Act requires to be referred which provides that every order of District Forum, the State Commission or the National Commission may be enforced by the District Forum, the State Commission or the National Commission, as the case may be, in the same manner as if it were a decree or order made by a Court in a suit pending therein and in the event of its inability, it can send the same to the Court within the local limits of whose jurisdiction (a) the case or the order against the company the registered office of the company is situated, or (b) in the case of an order against the person, the place where the person concerned ordinarily resides or carries on business or personally works for gain, is situated.
13.4 Section 24 of the said Act provides that if no appeal is preferred against the order of a District Forum, the State Commission or the National Commission, such order shall be final. Thus, the order which has attained finality, as provided under Section 24 of the Act can be executed in the same manner as if it were a decree or an order of an order made by a Court and its execution also can be requested by the concerned adjudicatory authority to the Court having local jurisdiction, as sated above. Thus, for any execution of the order, methodology is prescribed which includes requesting the local Court having jurisdiction to execute the same as decree.
14.The Code of Civil Procedure, 1908, provides for several ways as to how the executing Court can execute the decree, one of the modes of execution is by arrest and detention of a judgment debtor in civil prison.Page 10 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019
R/SCR.A/11142/2018 ORDER 14.1 Following are the provisions for the said purpose, Section
51 of the CPC dealing with the powers of execution thus:
"51. Power 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) by delivery of any property specifically decreed; (b ) by attachment and sale or by sale without attachment of any property; (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]; (d) by appointing a receiver ; or (e) in such other matter as the nature of the relief granted may require : [Provided that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving me judgment- debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-
(a) that the judgment-debtor with the object or effect of obstructing or delaying the execution of me decree,- (I) is likely to abscond or leave the local limits of the jurisdiction of the Court; or (ii) has, after the institution of the suit in which the 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
(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same; or (c) that the decree is for a sum for which the judgment- debtor was bound in a fiduciary capacity to account."
14.2 Section 58 of the Code also deserves reference:
"58. Detention and release :-
(1) Every person detained in the civil prison in execution of a decree shall be so detained,-
(a) where the decree is for the payment of a sum of money exceeding [["five thousand rupees"], for a period not exceeding-three months Page 11 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER and]
(b) where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding five thousand rupees, for a period not exceeding six weeks:";] Provided that he shall be released from such detention before the expiration of the [said period of detention]-
(I ) on the amount mentioned in the warrant for his detention being paid to the officer-in-charge of the civil prison, or (II) on the decree against him being otherwise fully satisfied, or (I I I ) on the request of the person on whose application he has been so detained, or
(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance : Provided, also, that he shall not be released from such detention under Cl. (ii) or Cl.(iii), without the order of the Court. [(1-A) For the removal of doubts, it is hereby declared that no order for detention of the judgment- debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed ["two thousand rupees"].] (2) Ajudgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison."
14.3 Reference also is needed of Order XXI Rules 37 & 38 of the CPC, which are as under: "37. Discretionary power to permit judgment debtor to show cause against detention in prison.-(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:
[Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.] Page 12 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER (2) Where appearance is not made in obedience to the notice, the Court shall, if the decree- holder so requires, issue a warrant for the arrest of the judgment debtor.
38.Warrant for arrest to direct judgment debtor to be brought up.- Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs (if any) to Which he is liable, be sooner paid."
14.4 Order XXI, Rule 40 of the C.P.C. Also requires reference here:
"40. Proceedings on appearance of judgment debtor in obedience to notice or after arrest.- (1) When a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to bear the decree holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison.
(2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required.
(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of this Code, make an order for the detention of the.
Judgment debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest:
Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be Page 13 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER not sooner satisfied.
(4) A judgment-debtor released under this rule may be re-arrested.
(5) When the Court does not make an order of detention under sub-
rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release."
14.5 Once these provisions are read together, they provide invariably right to fair trial and observance of principles of natural justice where none can be condemned unheard and fair opportunity deserves to be granted to the judgment debtor.
14.6 Apt would be refer to decision of Madras High Court rendered in this regard being of 'RAMASAMY VS. PUSHPA', Dated:
13.03.2017, in C.R.P.(PD) No.3747 of 2011 & MP.No.1 of 2011 filed under Section 115 of the CPC, where, the relevant observations read thus: "19. Article 21 of the Constitution proclaims that ''no person shall be deprived of his life or personal liberty except according to procedure established by law''. This articles, Article 21 is the Cindrella of lovers of Civil liberties. It is more than British Magna Carta and the American Bill of Rights. Of course, Article 21 is couched in few lines. The very basis of human right to live with dignity has been guaranteed in these few lines. Less of it; life and liberty will be miserable. It is a basic features of our Constitution. It cannot be tinkered with by the Executive. (See Kesavananda Barathi vs. State of Kerala [(1973)4 SCC 225].
20 In MANEKA GANDHI vs. UNION OF INDIA (AIR 1978 SC 597) the Hon'ble Supreme Court put in many live words into the phrases 'life and liberty' in Article 21, Constitution of India by holding that the procedure by which liberty of person is taken away must be 'fair', 'reasonable' and 'not unjust'.
21 In JOLLY GEORGE VARGHESE AND ANOTHER VS. THE BANK OF COCHIN [(1980)2 SCC 360] the Hon'ble Supreme Court widened the umbrella of protection of Article 21, Constitution of India, not only to persons arrested in criminal cases but also to persons arrested in execution of a money decree under Order XXI, Rule 37 of C.P.C. The Hon'ble Apex Court laid down that poverty/ inability to pay a debt cannot be a reason to send a person to jail, let it be a civil prison.Page 14 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019
R/SCR.A/11142/2018 ORDER 22 Actually, close on the heels is Article 11, International covenant on Civil and Political Rights which declared that ''no one shall be imprisoned merely on the ground of inability to fulfills a contractual obligation.'' Liability to pay a debt arose under a promissory note is an instance of a contractual obligation. India being a signatory to the said International Covenant, as per Article 51(c) of the Constitution of India, it will have its repercussion in our Municipal law.
23 It is apposite here to notice the following glittering words in a judgment of Kerala High Court made in XAVIER VS. CANARA BANK LTD. (1969 KLT 927):
"The march of civilization has been a story of progressive subordination of property rights to personal freedom; and a byproduct of this subordination finds noble expression in the declaration that "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation." This revolutionary change in the regard for the human person is spanned by the possible shock that a resuscitated Shylock would suffer if a modern Daniel were to come to judgment when the former asks the pound of flesh from Antonio's bosom according to the tenor of the bond, by flatly refusing the mayhem on the debtor, because the inability of an impecunious oblige shall not imperil his liberty or person under the new dispensation proclaimed by the Universal Declaration of Human Rights. Viewed in this progressive perspective we may examine whether there is any conflict between section 51 CPC and Article 11 of the International Covenants quoted above. As already indicated by me, this latter provision only interdicts imprisonment if that is sought solely on the ground of inability to fulfill the obligation. Section 51 also declares that if the debtor has no means to pay he cannot be arrested and detained. If he has and still refuses or neglects to honour his obligation or if he commits acts of bad faith, he incurs the liability to imprisonment under s. 51 of the Code, but this does not violate the mandate of Article 11. However, if he once had the means but now has not or if he has money now on which there are other pressing claims, it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment....."Page 15 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019
R/SCR.A/11142/2018 ORDER 24 In Jolly George (supra), the Hon'ble Supreme Court referring to Section 51, Order XXI Rule 37 to 40 C.P.C. Has to hold as under:
"10. Equally meaningful is the import of Art. 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Art. 21, read with Arts. 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi's case (1978)1 SCC 248) as developed further in Sunil Batra v. Delhi Administration [(1978)4 SCC 494] Sita Ram & Ors. v. State of U.P.[(1979)2 SCC 656] and Sunil Batra v. Delhi Administration (W.P.No.1009 of 1979 dated 20.12.1979) lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridra Narayana, is no crime and to 'recover' debts by the procedure of putting one in prison is too flagrantly violative of Art. 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Art. 11 of the Covenant. But this is precisely the interpretation we have put on the proviso to Section 51 C.P.C. And the lethal blow of Art. 21 cannot strike down the provision, as now interpreted. 11 The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Art. 11 (of the Covenant) and Art. 21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and Page 16 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution.'' 25 In SENTHIL KUMAR VS. K.M.N. SURENDRAN [2012(3) CTC 294], a learned Judge of this Court applied the ratio in JOLLY GEORGE to a judgment debtor."
26 Now, it is firmly settled that even in an execution petition under Order XXI Rule 37 C.P.C., simply because the decree holder wishes that the judgment debtor should be made to count the bars of a Civil prison on account of his inability to pay the decree debt, the Court could not send the debtor to jail unless he has current ability to clear off the debt or he has malafide refusal or he has some other vice or mens rea apart from his failure to foot the decree."
15.This Court is conscious that it is presently dealing with the exercise of penal powers of adjudicatory authority under the C.P. Act where the authority concerned is to act as Judicial Magistrate First Class and the proceedings are to be followed are of summary trial. If resorting to procedure under the CPC also do not permit sending a person to civil prison without following the procedure prescribed, statute when provides for summary trial under the code for penal provision, the least that can be done is to adhere to the same.
15.1 Summary trial under Chapter XXI of the Code is for speedy trial and for simplifying the procedure.
15.2 Section 260 provides the type of cases which can be heard by the Judicial Magistrate First Class and runs as follows:
"260.Power to try summarily. (1)Notwithstanding anything contained in this Code- (a) any Chief Judicial Magistrate; (b) any Metropolitan Magistrate ; (c) any Magistrate of the first class specially empowered in this behalf by the High Court, may, if he thinks fit, try in a summary way all or any of the following offences : - (I) offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years;
(ii) theft, under section 379, section 380 or section 381 of the India Penal Code (45 of 1860), where the value of the property stolen does no exceed two hundred rupees; (iii) receiving or retaining stolen property, under section 411 of the Indian Penal Code (45 of 1860), where the value of the property does not exceed two hundred rupees;Page 17 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019
R/SCR.A/11142/2018 ORDER
(iv) assisting in the concealment or disposal of stolen property under section 414 of the Indian Panel Code (45 of 1860), where the value of such property does not exceed two hundred rupees; (v) offences under sections 454 and 456 of the Indian Penal Code (45 of 1860);
(vi) insult with intent to provoke a breach of the peace, under section 504, and criminal intimidation, under section 506 of the Indian Penal Code (45 of 1860); (vii) abetment of any of the foregoing offences; (viii) an attempt to commit any of the foregoing offences, when such attempt is an offence; 929 (ix) any offence constituted by an act in respect of which a complaint may be made under section 20 of the Cattletrespass Act, 1871 (1 of 1871). (2) When, in the course of a summary trial it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by this Code."
15.3 Section 261 of the Code speaks of trial by Magistrate of Second Class:
"261.Summary trial by magistrate of the second class. The High Court may confer on any Magistrate invested with the powers of a Magistrate of the second class power to try summarily any offence which is punishable only with fine or with imprisonment for a term not exceeding six months with or without fine, and any abetment of or attempt to commit any such offence."
15.4 Section 262 of the Code provides for procedure for summary trial:
"262.Procedure for summary trials. (1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-ease shall be followed except as hereinafter mentioned. (2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter."
15.5 Section 263 provides as to what particulars to be recorded in every summary:
"263. Record in summary trials. In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely : - (a) the serial number of the case; (b) the date of the commission of the offence; (c) the date of Page 18 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER the report or complaint ; (d) the name of the complainant (if any); (e) the name, parentage and residence of the accused; (f)the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of subsection (1) of section 260, the value of the property in respect of which the offence has been committed; (g) the plea of the accused and his examination (if any); (h) the finding; (I) the sentence or other final order the date on which proceedings terminated."
15.6 Section 264 provides that a convict cannot be sentenced to imprisonment for a period longer than three months under the summary trial. Judgment would provide the substance of evidence provided and briefly the statements of the reasons why such finding has been recorded by the Judicial Magistrate.
15.7 Section 265 says that every such record of judgment shall be in the language of the Court and shall be signed by the Court.
15.8 Conjoint reading of these provisions make it abundantly clear that the procedure prescribed under the summary trial shall need to be followed by any court, let alone the forum or commission, before the judgment debtor is sentenced to imprisonment as any other interpretation would tantamount to sentencing the person without following due procedure of law, liberty of a person simply cannot be curtailed without following the procedure prescribed under the law.
16.On adverting to the facts, the petitioner, in the instant case, has a decree against himself, which is in favour of respondents, herein. Since, the petitioner was not available after once he was arraigned in a complaint being I-C.R. No. 172/2017, registered with Kalol Police Station. On his arrest, he was produced before the Consumer Forum on 18.06.2018 and on the very day, without following the summary proceedings, the forum straightaway sent him to jail for a period of three years. As discussed above, summary trials are provided under Sections 260 to 265 of the Code of Criminal Procedure. The procedure for Summary Trials is prescribed in Section 262 of the Code and therefore, the least, that can be done is to follow the procedure specified under the Code for the trial of summary procedure, as provided Chapter-XXI of the CPC. Sub-Section (2) of Section 262 of the Code, lays down that no sentence of imprisonment for a term exceeding three months shall be passed by invocation of this chapter. Therefore, for awarding sentence, exceeding the period of three Page 19 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER months, the procedure laid down for summons trial shall have to be followed, as prescribed under the Code, under the said chapter. As sub-Section (3) of Section 227 starts with non-obstinate clause, even without entering into the debate whether in the event of punishment beyond three months, summary trial would be needed, suffice to note at this stage, that the proceedings under Section 262 of the Code has to be followed for convicting and sentencing the petitioner to undergo imprisonment for three years.
16.1 Relevant observations and findings of the Apex Court in 'KAMLESH AGGARWAL' (Supra), deserve to be remembered here:
"8. The respondents filed review application before the District Forum in Execution Case No. 96 of 2010 for review of order dated 29.5.2010. The District Forum vide its order dated 26.11.2010 dismissed the review application and found the respondents guilty for non- compliance of order dated 17.10.2003 passed in Complaint Case No. 24 of 1998 and ordered for three months imprisonment of the respondents along with penalty amount of Rs.3000/- payable by them under provisions of Section 27 of the Act.
9. Being aggrieved by the abovesaid order, the respondents filed Appeal Nos. 2082 and 2083 of 2010 before the State Commission which were allowed by its order dated 30.7.2013 by setting aside the order dated 26.11.2010 of the District Forum. The State Commission observed that the District Forum has not adopted the procedure of summary trial at the time of passing the order of conviction and sentence imposed upon the respondents as provided under the Criminal Procedure Code, 1973, for non-compliance of order dated
17.10.2003. The State Commission also observed in its order that at no point of time the respondents were afforded an opportunity of being heard against the disobedience of the order dated 17.10.2003 of the District Forum, which is mandatory as per provisions of sub-clause (3) of Section 27 of the Act and it has to try them by following the summary procedure by the District Forum empowered as Judicial Magistrate of the First Class for the purpose of Code of Criminal Procedure. Thus, the State Commission has allowed the appeal of the respondents and set aside the conviction and sentence order passed against them.
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13.We have heard both the learned counsel on behalf of the parties. In the facts and circumstances of the case, we are of the view that the State Commission should have remanded the matter to District Forum after setting aside its order dated 26.11.2010 with a direction to proceed with the matter in accordance with the procedure contemplated under the Code of Criminal Procedure referred to supra for taking penal action against the respondents who are the concerned officers of Navchetna Sahkari Awas Samiti Ltd. for non- compliance of the order.
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16.Having regard to the fact situation that the appellant, who is a consumer, has been litigating the matter before the District Forum, State Commission and the National Commission for the last 17 years to get her legitimate right of getting the sale deed registered in respect of the allotted site made by the Navchetna Sahkari Awas Samiti Ltd. in her favour who is its member since 1962, therefore, we deem it proper to exercise our power under Article 142 of the Constitution of India for the reason that the State Commission has erred in not remanding the case to the District Forum, after it has found fault with the order of the District Forum in convicting and sentencing the officers of Navchetna Sahkari Awas Samiti Ltd. who are the respondents herein for not following the procedure as provided under the Criminal Procedure Code and for that reason we deem it just and proper to remand the case to the District Forum with a direction to the District Forum to follow the procedure under Section 262 read with Chapter XX, Section 251 of the Code of Criminal Procedure to initiate penal action against the respondents under Section 27 of the Act for non compliance of the statutory provisions.
17.It is also needless to mention in this order that no remedy is available to the appellant against the order of the District Forum even under Section 24 of the Act for the reason that the order passed by the State Commission, which was not interfered with by the National Commission holding that second appeal is not maintainable against the order of the State Commission. Further, the order passed by the State Commission is under Section 27A of the Act in the appeal against the order dated 30.7.2013 of the District Forum which under Section 27(2) of the Act convicted and sentenced the respondents in the execution proceedings for non implementation of the order dated Page 21 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER 17.10.2003 passed by the District Forum on the original complaint. Therefore, this Court in exercise of power of this Court under Article 142 of the Constitution of India, the order of the State Commission is modified to the extent of remanding the case to the District Forum to execute the decree and take penal action against the respondents by following the procedure under Section 262 read with Chapter XX and Section 251 of the Code of Criminal Procedure in accordance with law."
17.Apt, here, would also be to refer to the decision in 'NANDINI SATPATY VS. DANI (P.L.) AND ANR.', 1978 (2) SCC 424', where, it has been held by the Apex Court that the quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of the criminal law. The basic law of this country, the Constitution of India does not permit any person to be sentenced without following the due procedure under the law. Since, what has been done is that nothing is followed before penal provisions is invoked, this petition is entertained by this Court, considering the violation of basic law. If the implementation of decree by civil procedure code requires detention in civil jail only after availing due opportunity as prescribed under the law. No one can be sentenced without even following the summary trial as specified under the law. It is one thing to get the order implemented as already provided under the C.P. Act or under CPC, but, once the penal provision is resorted to, the procedure prescribed simply cannot be overlooked or bypassed.
18.While so holding it, this Court is conscious of the fact that the petitioner has huge outstanding dues against him and two other partners, who are also arraigned as parties are not available. Therefore, with certain stringent conditions, the petitioner is being SET FREE so as to enable him to appear before the District Forum concerned and to proceed with the matter.
18.1 The petitioner has already deposited Rs.25/- (TWENTY FIVE) lakh, before the State Commission, out of the principal amount of Rs.93,74,300/- (NINETY THREE LAKH SEVENTY FOUR THOUSAND THREE HUNDRED). He also has paid a further sum of Rs.6,00,000/- (SIX LAKH). This Court also notices that the sum of Rs.3,00,000/- (THREE LAKH), which was to be paid by way of compensation, subject to the rights and contentions of the petitioner, was directed to be adjusted in the proceedings, pending before the Page 22 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER Consumer Forum concerned and the Consumer Forum is eventually to pass an order of payment, as has been directed by this Court in Criminal Misc. Application No. 33745 of 2016 vide order dated 28.12.2016. He has undertaken before this Court that payment of actual principal amount is.
18.1.2 Let the petitioner ensure to DEPOSIT the same by way of Demand Drafts, which has been already prepared in the name of Registrar of the Consumer Forum concerned, before it on, or before, 30TH MARCH, 2019.
18.1.3 On such a deposit being made, the concerned Consumer Forum is requested to disburse the same to the respondents, herein, on PRO-RATA basis.
18.2 So far as penal provisions are concerned, the matter is remanded to the District Consumer Forum concerned to proceed with the same, after giving due opportunity to all the parties.
18.2.1 In the meantime, all the six properties, which have been listed before this Court, SHALL NOT be transferred or alienated in any matter. Let due INTIMATION, in that regard, be given to the Registrar / Sub-Registrar Concerned.
18.2.2 Passport of his to be DEPOSITED with the Consumer Forum within one week of his release.
18.3 Resultantly, this petition is ALLOWED and the impugned order passed under Section 27 of the Consumer Protection Act in the E.A. 7 of 2017, 2 of 2018, 7 of 2018, 6 of 2018, 5 of 2018, 8 of 2018, 6 of 2018, 26 of 2017 and 27 of 2017 by the Hon'ble District Consumer Forum, Gandhinagar, is QUASHED and set aside.
18.4 None of the observations and findings made by this Court on merit of the case in this case shall influence the Court / Forum concerned and it shall decide the matter INDEPENDENTLY, on its own merits, with a further request to conclude the hearing at the earliest. Direct service is permitted.
10. As can be noticed from the order passed in Execution Petition No. 20 9/2017 and other matters, President and members of consumer forum have exercised the powers straight way under section 27(2) and 27(3) of the C.P Act to send the petitioner to the Page 23 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER jail as an undertrial prisoner and no final order of conviction has been passed on 9.11.2017, posting the matter on dated 18.11.2017. It was a right approach of the forum that the petitioner, before being sent to jail, was to be availed the due opportunity, however, on 17.3.2018 the order passed by forum is seriously questioned as that led to incarceration of the petitioner The petitioner admittedly has not been convicted and hence, as rightly pointed out by learned advocate Mr. Bhatt appearing for the petitioner, appeal under section 27(A) of the C.P Act, would not be available to the petitioner. He is languishing in the jail from 9.11.2017, not because he is convicted but for his not being able to provide the amount of security and personal bond of Rs 25,000/- (twenty five thousand only) and the amount of Rs 60,000/-(sixty thousand only) as directed by the consumer forum. That is all the more a matter of serious concern. No person, who is otherwise found entitled to personal liberty by the competent judicial forum, can languish in jail only because he is unable to furnish surety/security or personal bond or cannot fulfill condition set out by the Court. This Court is fully conscious that many consumers are suffering on account of act of noncompliance on the part of the petitioner and his other partners. He is in the jail whereas other two partners have already approached Appellate forum as submitted by the learned advocate for the petitioner before this Court. Be that as it may, no person can be deprived for his right to life and liberty only because he is not in a position to comply with the terms set out by the Court. Again, if he is unable to so do it, he cannot languish in the jail for an indefinite period as has happened in case of his petitioner.
11. Assuming that he is not in a position to fulfill the direction of his liberty , his criminal case at least should have Page 24 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER progressed in the last two years' period. If it is meant to be summary trial, the same ought to be over in a short duration or at least in these two years' period. Instead, what emerges is that he has not been so far tried and continues to languish in jail and in this scenario, also there is a weighty reason for this Court to interfere and direct release of the petitioner with certain conditions, which he would be in a position to fulfill while his criminal cases proceed on merit on following due procedures. Petitioner in all the Special Criminal Applications has prayed to be released, by quashing and setting aside the order passed by the District Consumer Forum, Bhuj, Kutch and is in jail since 9.11.2017. He has revealed in his affidavit filed on 3.5.2019 that he has certain "plots of land at village Depa Taluka Mundra with Mr. Sandjp Jaantilal thakkar (co-respondent in the original complaint) bearing survey no. 23 paiki 1 and 23 paiki 2 on the revenue record (lal book). There are total 22 plots on the said land bearing numbers 12, 13, 16,19, 24, 51, 63, 64, 65,66, 67,97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 115, 134, 140, this land/plot is known as Jyoti park"
after it obtained Non-agriculture permission." He has also produced copy of revenue record reflecting his name with Mr. Sandip in the revenue record. Out of these 30 plots, he still has 20 to 22 plots which he can place byway of security before the Court.
12. Considering the detailed affidavit of the petitioner and in wake of the discussion held hereinabove, all these petitions are being allowed, modifying the conditions of release and directing the Consumer Forum to proceed against the petitioner in accordance with law, while he is Page 25 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019 R/SCR.A/11142/2018 ORDER criminally prosecuted, in the following manner.
(i) Petitioner shall be released in each matter on his furnishing surety and personal bond of Rs 10,000/- (ten thousand only)each.
(ii) He shall also furnish by way of security collectively in all the matters his land situated at village Depa. Taluka Mundra as mentioned at para 2 of his affidavit dated 3.5.2018.
He shall not transfer any of these plots numbered in the affidavit in any mode or manner. These plots in the joint ownership also shall not be transferred till the final culmination of all the Execution petitions pending before the consumer forum, Kutch.
(iii) Rest of the conditions imposed by the forum shall continue to hold the field.
(iv) . This shall be intimated to the Sub-Registrar office which shall not permit transfer of any of these land without prior permission of the Consumer Forum.
(v) Consumer Forum shall follow the procedure prescribed under the law while criminally prosecuting the petitioner and shall conclude the summary proceedings without further loss of time but in case later than three months period from the date of receipt of copy of this order.
(vi). The petitioner shall co-operate and shall not remain absent on any of the adjournments.
Page 26 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019R/SCR.A/11142/2018 ORDER (v) Consumer forum shall be additionally permitted to
impose reasonable condition for procuring his presence, if he remains absent on any one adjournment.
(vi) He shall not attempt to tamper with evidence.
Petitions stand allowed to the extent above and disposed of accordingly.
(SONIA GOKANI, J) MARY VADAKKAN Page 27 of 27 Downloaded on : Sat Nov 23 01:18:29 IST 2019