Report No. 12
Arrest and Detention of The Defaulter
72. Notice to show cause.-
(1) No order for the arrest and detention in civil prison of a defaulter shall be made unless the Collector has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison, and unless the Collector, for reasons recorded in writing, is satisfied-
(a) that the defaulter, with the object or effect of obstructing the execution of the certificate, has after the receipt of the certificate in the Collector's office dishonestly transferred, concealed, or removed any part of his property, or
(b) that the defaulter has, or has had since the receipt of the certificate in the Collector's office, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.
(2) Notwithstanding anything contained in sub-rule (1) a warrant for the arrest of the defaulter may be issued by the Collector if the Collector is satisfied, by affidavit or otherwise, that with the object or effect of delaying the execution of the certificate the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Collector.
(3) Where appearance is not made in obedience to a notice issued and served under sub-rule (1), the Collector may issue a warrant for the arrest of the defaulter.
(4) Every person arrested in pursuance of a warrant of arrest under sub-rule (2) or sub-rule (3), shall be brought before the Collector as soon as practicable and in any event within twenty-four hours of his arrest (exclusive of the time required for journey):
Provided that, if the defaulter pays the amount entered in the warrant of arrest as due and the costs of the arrest to the officer arresting him, such officer shall at once release him.
[Section 29(1), (la), (lb) & (1c), Bengal Act] [Section 48, part., Madras Act]
When a defaulter appears before the Collector in obedience to a notice to show cause or is brought before the Collector under the preceding rule, the Collector shall proceed to hear the Income-tax Officer and take all such evidence as may be produced by him in, support of execution by arrest, and shall then give the defaulter an opportunity of showing cause why he should not be committed to the civil prison.
[Section 29(2), Bengal Act]
74. Custody pending hearing.-
Pending the conclusion of the inquiry, the Collector may, in his discretion, order the defaulter to be detained in the custody of such officer as the Collector may think fit or release him on his furnishing security to the satisfaction of the Collector for his appearance when required.
[Section 29(3), Bengal Act]
75. Order of detention.-
(1) Upon the conclusion of the inquiry, the Collector may make an order for the detention of the defaulter 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 defaulter an opportunity of satisfying the arrears, the Collector may before making the order of detention, leave the defaulter in the custody of the officer arresting him or of any other officer for a specified period not exceeding 15 days, or release him on his furnishing security to the satisfaction of the Collector for his appearance at the expiration of the specified period if the arrears are not so satisfied.
(2) When the Collector does not make an order of detention under sub-rule (1), he shall, if the defaulter is under arrest, direct his release.
[Section 29(4) and (5), Bengal Act]
76. Detention in and release from prison.-
(1) Every person detained in the civil prison in execution of a certificate may be so detained,-
(a) where the certificate is for a demand of an amount exceeding fifty rupees-for a period of six months, and
(b) in any other case-for a period of six weeks:
Provided that he shall be released from such 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 certificate being otherwise fully satisfied, or cancelled, or
(iii) on the request of the Income-tax Officer or of the Collector:
Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii) without the order of the Collector.
(2) A defaulter released from detention under this rule shall not, merely by reason of his release, be discharged from his liability for the arrears; but he shall not be liable to be re-arrested under the certificate in execution of which he was detained in the civil prison.
[Section 31, Bengal Act]
(1) The Collector may order the release of a defaulter who has been arrested in execution of a certificate upon being satisfied that he has disclosed the whole of his property and has placed it at the disposal of the Collector and that he has not committed any act of bad faith.
(2) If the Collector has ground for believing the disclosure made by a defaulter under sub-rule (1) to have been untrue, he may order the re-arrest of the defaulter in execution of the certificate, but the period of his detention in the civil prison shall not in the aggregate exceed that authorised by the preceding rule.
[Section 30, Bengal Act]
78. Release on ground of illness.-
(1) At any time after a warrant for the arrest of a defaulter has been issued, the Collector may cancel it on the ground of his serious illness.
(2) Where a defaulter has been arrested, the Collector may release him if, in the opinion of the Collector, he is not in a fit state of health to be detained in the civil person.
(3) Where a defaulter has been committed to the civil prison, he may be released therefrom by the Collector, on the ground of the existence of any infectious or contagious disease, or on the ground of his suffering from any serious illness.
(4) A defaulter released under this rule may be re-arrested, but the period of his detention in the civil prison shall not in the aggregate exceed that authorized by this Schedule.
[Section 32, Bengal Act]
79. Entry into dwelling house.-
For the purpose of making an arrest under this Schedule-
(a) no dwelling house shall be entered after sun-set and before sun-rise;
(b) no outer door of a dwelling house shall be broken open unless such dwelling house or a portion thereof is in the occupancy of the defaulter and he or other occupant of the house refuses or in any way prevents access thereto; but, when the person executing any such warrant has duly gained access to any dwelling house, he may break open the door of any room or apartment if he has reason to believe that the defaulter is likely to be found there;
(c) no room, which is in the actual occupancy of a woman who according to the customs of the country does not appear in public, shall be entered into unless the officer authorised to make the arrest has given notice to her that she is at liberty to withdraw and has given her reasonable time and facility for withdrawing.
[Section 47, Bengal Act]
80. Prohibition against arrest of women or minors etc.-
The Collector shall not order the arrest and detention to in the civil prison of-
(a) a woman, or
(b) any person who, in his opinion, is a minor or of unsound mind.
[Section 33, Bengal Act] [Section 48, Madras Act]