Sanchayita Lahkar

The High Court of Calcutta Single Bench of Justice Dr. Ajoy Kumar Mukherjee set aside the West Bengal State Consumer Commission’s order directing ten days’ judicial custody of the petitioner for non-compliance with directions relating to delivery of a flat, execution of the conveyance deed, refund of money with interest, and payment of compensation to the homebuyer. The Court observed that the Commission had acted beyond its remit by employing a process akin to criminal remand under Section 72 of the Consumer Protection Act, 2019, despite no request from the decree holder to initiate criminal proceedings for non-compliance. The Court held that such coercive action could not substitute the statutory procedures for civil execution or a properly instituted proceeding under the Act.

The petitioner challenged two orders dated 04.09.2025 and 03.11.2025 passed by the State Consumer Disputes Redressal Commission, West Bengal in an execution proceeding arising from a consumer complaint. The Commission had earlier passed an ex parte order on 29.05.2019 directing the petitioner to hand over a flat in habitable condition, execute and register the deed of conveyance, refund ₹22,45,000 plus ₹1,55,410 with 12% interest, and provide the completion certificate along with compensation and cost. During the execution proceedings, the Commission declined to rely on the petitioner’s medical documents for lack of LTI and issued a warrant of arrest on 04.09.2025.

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On 03.11.2025, the petitioner, brought under arrest pursuant to this warrant, had his bail prayer rejected. The Commission recorded that execution of the deed of conveyance and payment of compensation, cost, and refund were still incomplete. It observed that granting bail would frustrate the execution application and remanded the petitioner to the Presidency Correctional Home for ten days, directing production on 13.11.2025 for payment and compliance.

The petitioner contended that he suffers from serious ailments and is bedridden. He argued that the Commission could not invoke Section 72 of the Consumer Protection Act, 2019 as a coercive shortcut within an execution proceeding and that warrant of arrest cannot be issued for enforcement. He submitted that while detention in civil prison is permissible under Order XXI CPC, the Commission cannot employ criminal procedure powers for arrest.

The opposite party questioned the maintainability of the petition under Section 482 CrPC/Section 528 BNSS, arguing that the impugned orders were passed under Section 71 and should have been challenged through a civil revisional or writ petition. The Court examined Sections 71 and 72 of the Act of 2019, Order XXI CPC, and the powers available to the Commission while executing orders.

The Court recorded “that every order passed by commission has to be executed as if the order passed in a suit and the procedure laid down in order XXI of the Code of Civil Procedure… is applicable for the execution of such an order.” It stated that Section 71 requires execution to proceed under civil procedure, whereas Section 72 “confers a quasi-criminal sanction for their enforcement by way of punishment with imprisonment or imposition of monetary penalties.”

The Court noted that Section 72 and Section 71 are independent remedies and “section 71 & section 72 are mutually exclusive and constitute independent remedies.” It referred to a coordinate Bench decision in CRR 159 of 2024, which held that while a judgment debtor may be detained in civil prison during execution, “the commission cannot issue warrant of arrest against the judgment debtor following part B of chapter VI of the Code of Criminal Procedure.”

From the Commission’s order of 03.11.2025, the Court observed that “the commission noted that in compliance with their order, the execution and registration of deed of conveyance has not been done… the commission is of the view that if the judgment debtor is enlarged on bail it would frustrate the execution application.” It found that the Commission used judicial custody as a coercive tool to compel compliance.

The Court stated that the Commission had acted “usurping the power of a Judicial Magistrate of first class under the Code of criminal procedure 1973 and remanded the petitioner for 10 days judicial custody.” It found no indication that the petitioner was detained in civil prison under Order XXI CPC, nor that any cost of civil prison was assessed or borne by the decree holder.

The Court further recorded that “the impugned orders in no uncertain terms makes it specific that the object of putting the petitioner behind the bar is to compel the petitioner to carry out the order passed by the commission.” It held that such coercive custody is permissible only under proceedings initiated as an offence under Section 72, and even then, “a reasonable opportunity to defend himself” must be granted.

Since no such proceeding was initiated, the Court stated that “the order of issuance of warrant of arrest under the Code and also to put the petitioner behind the bar as a short cut and coercive method for execution of its order is seriously deprecated and liable to be set aside as it is palpably illegal.”

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The Court recorded that “CRR 4737 of 2025 is allowed.T he impugned orders dated 04.09.2025 and 03.11.2025 are hereby set aside. Since the arrest itself is illegal for non compliance of section 71/72 of the Act of 2019, I direct that the petitioner be set at free at once from the correctional home.”

“This order will not prevent the decree holder/complainant to execute the decree by initiating execution proceeding either under section 71 of the Act or by initiating proceeding treating the aforesaid non compliance as an ‘offence’ under section 72 of the Act.”

Advocates Representing The Parties

For the Petitioner: Mr. Sandipan Ganguly, Sr. Adv.; Mr. Ayan Bhattacharjee, Sr. Adv.; Ms. Priyanka Sarkar

For the Respondents: Mr. Srijit Chakraborty; Mr. Sourya Mukherjee

For the State: Mr. Suman De; Mr. Anindya Sunder Chatterjee

Case Title: Malay Bose vs. Susmita Saha & Ors.
Case Number: CRR 4737 of 2025 with CRAN 1 of 2025
Bench: Justice Dr. Ajoy Kumar Mukherjee