Abilah s/o Daid v. R., Crim. App. 258-D-68, 7/6/68, Saidi J.

Abilah s/o Daid v. R., Crim. App. 258-D-68, 7/6/68, Saidi J.

Accused had been sued in a shamba dispute, the plaintiff obtaining a judgment for possession of the shamba and costs of Shs. 529/50. The plaintiff moved the court for execution of the decree. The court’s action was unclear from the records. The court did write a letter asking accused to pay the costs by 7 October, 1967. A reminder was sent on 29 January, 1968. Following his failure to pay or to reply to the court, the magistrate ordered the arrest of accused, who was subsequently charged with disobedience of lawful orders [P.C. s. 124].

            Held: (1) Failure to pay a debt is not an offence in law, and section 124 of the Penal Code must not be used to convert a civil case into a criminal matter. (2) The Court stated, obiter; The proper procedure here would have been to attach accused ’s property under Order 21, rule 42. with a view to ward its being sold, or to attach his salary under.

Order 21, rule 47, or to issue notice under Order 21, rule 35 for accused to show cause why he should not be arrested and detained in civil prison for failure to pay the costs as ordered. A debtor is sent to civil prison if the court, having inquired into his financial standing, is convinced that he can pay the debt and is simply refusing to do so. Civil imprisonment is not intended as punishment, but as an attempt to force payment; it would be unlawful if the debtor were found to be without means. [Citing Lala Das v. Mina Mal and Chajju Mal (1922) 4 Lah. L.J. 266; Barrett v. Hamond (1878) 10 Ch. D. 285; Morris v. Ingram (1879) 13 Ch. D. 338]. Conviction quashed.